PETITION FOR TRANSFER
Civil Case: Appellate case 53A01-0910-CV-494
Trial Court case no.: 53C06-0409-CT-01782
Analysis of the Pleadings in the case has revealed significant, flagrant errors (violating Federal Law) as well as omissions committed by the State Appellate Court and Trial Court with respect to their published opinion favoring Indiana State Troopers Stacy Brown and Travis Coryea, but denying Plaintiff Scott Wells’ claim of battery and “excessive force” inflicted on him by the Troopers.
With respect to Bud and Amy Bernitt of Bernitt Realty, (“Bernitts”), the Court of Appeals Misapplied “Res Judicata” and “Issue Preclusion” to Wells’ Claims and ignored the evidence that Wells actually presented to show the Bernitts' malice against him in his Defamation Claim. In addition, there are 89 New Additional Defamatory Posts that were posted by Bud and Amy Bernitt on the Herald-Times website that has not been addressed by the Courts.
PETITION FOR TRANSFER, Page 4: “In both the first defamation lawsuit and in the present lawsuit, Wells offered as evidence of the element of malice certain posts that the Bernitts made on an internet "chat room" hosted by the Bloomington Herald-Times. In the present lawsuit Wells designated as evidence on summary judgment 89 new posts in addition to the ones he previously designated in his earlier lawsuit against the Bernitts...”
Page 13: “Moreover, the evidence offered was not identical in the two lawsuits. Wells designated as evidence at least 89 new additional posts in the instant lawsuit that he did not offer in the earlier lawsuit. A comparison of the posts from Wells v. Shiflet (found in the Bernitts "Designation of Pleadings from 53C01-0207-CT-01283)," to the posts that Wells designated in the present lawsuit (See Plaintiffs "Amendment to Plaintiff Scott D. Wells' Final Reply to Bernitts' Motion for Summary Judgment and Designation of Additional Evidentiary Materials," filed July 17, 2007), reveals some overlap but many new posts as well. Some of the new posts clearly refer to topics related to Wells' arrest, before and after. For instance, the one post predicting that Wells would soon be in jail about two months before his arrest (R. 109); and another revealing post early in the morning on the day of Wells' arrest predicting he would be "Behind Bars!" (R.120). Three days after Wells' arrest another post referred to Wells resisting arrest and yet he was acquitted of that charge (R. 122).”
TO SUPREME COURT
(PDF DOWNLOAD TIME APROXIMATELY 100 SECONDS)
SCOTT D. WELLS,
HERMAN BUD BERNITT, individually,
AMY BERNITT, individually,
Individually, and as an employee of the
Indiana State Police, STACY BROWN,
Individually, and as an employee of the
Indiana State Police,
Appellate case 53AOI-0910-CV-494
Trial Court case no.: 53C06-0409-CT-01782
Monroe Superior Court
The Honorable Michael A.
Robbins, Special Judge
PETITION FOR TRANSFER
QUESTIONS PRESENTED FOR TRANSFER
1. Whether the Court of Appeals properly used the doctrine of collateral
estoppel to hold that a criminal conviction established facts that
effectively precluded a civil claim of excessive force, when federal
law establishes its own doctrine for determining the preclusive
effect of a criminal conviction on a Section 1983 claim.
2. Whether a finding that a piece of evidence does not rise to the level of
"actual malice" in one defamation lawsuit collaterally estopps a
plaintiff from using similar evidence in a subsequent defamation
lawsuit regarding a new, unrelated defamatory utterance.
FACTUAL BACKROUND OF ISSUES FOR TRANSFER
Scott Wells walked out of the Crazy Horse Tavern in Bloomington,
Indiana on September 27, 2002 and got in his car to drive home. According to
the owner of the Crazy Horse, with whom Wells conversed for twenty
minutes before leaving, Wells was not drunk or impaired in any way. (R. 55-
56.) Unknown to Wells at that time two of his political opponents, Bud and
Amy Bernitt, had staked out the Crazy Horse and when Wells left the
establishment they called J.D. Maxwell, another of Wells' political opponents
who was also an Indiana State Police trooper and candidate for Monroe
County Sheriff, and told Maxwell that Wells had exited the Crazy Horse
staggering drunk, urinated on railroad the tracks, and drove away swerving
so badly that he nearly killed several pedestrians. (R. 58-59, 61-62.) In
actions that were contrary to normal procedure, Maxwell, who was at home
at the time, called the dispatch office and specifically requested that Troopers
Stacy Brown and Travis Coryea respond to the Bernitts' report. (R. 69.)
The troopers met with the Bernitts to take their report and then
Trooper Brown left to find Wells. When Brown located Wells he saw "no sign
of impairment." (R2. 159.) Nonetheless, Brown effected a traffic stop on
Wells for an alleged seatbelt violation. What happened next is in sharp
dispute. According to the officers Wells cursed and shouted at the officers,
refused their instructions to be quiet, to provide identifying information, or to
present his hands for handcuffing, and finally attempted to strike them
necessitating a violent takedown. (R.73.) According to Wells, he was passive
and cooperative with the officers and only tried to explain to them that his
arrest was a "set up" by J.D. Maxwell. Four independent witnesses testified
that at the time of the take down Wells was merely conversing with the
troopers and showed no sign of belligerence. (See, e.g., R2. 129.) Whereas,
both Bernitts testified in their Voluntary Statements Wells was "fighting and
resisting" the Troopers; yet he was acquitted of those charges (R. 67-68.).
Wells was charged with six criminal counts: 1) Operating a Vehicle
While Intoxicated in a Manner that Endangered a Person; 2) Battery on a
Law Enforcement Officer; 3) Resisting Law Enforcement; 4) Public
Intoxication; 5) Disorderly Conduct; and 6) Failure to Use Front Seat Safety
Belt, a Class D Infraction. The case went to a jury trial on October 27,2003
and Wells was acquitted of all charges except Disorderly Conduct and the
lesser included offense of Operating While Intoxicated Without
Endangerment. [1.] In rendering its verdict, neither the jury nor the judge
issued detailed findings of fact. The Court of Appeals affirmed Wells'
conviction on June 15, 2006 in Wells v. State, 848 N.E.2d 1133 (Ind. Ct. App,
[1. Neither the charging documents nor a certified copy of the conviction were
designated as evidence on summary judgment by any party.]
Wells commenced this lawsuit in September 2004, bringing claims of
defamation against the Bernitts and excessive force against Brown and
Coryea. (R2. 79.) Wells had previously sued the Bernitts and others for
defamation after they falsely accused him of arson. This lawsuit eventually
resulted in a $390,000 judgment against one of the defendants in that case,
though the Bernitts were dismissed out prior to trial. (Indiana Jury Verdict
Report, July 2009, p. 3.) The Bernitts made their false report to the police
that led to this lawsuit two months after Wells commenced his first
defamation suit against them. (R2. 79.) In both the first defamation lawsuit
and in the present lawsuit, Wells offered as evidence of the element of malice
certain posts that the Bernitts made on an internet "chat room" hosted by the
Bloomington Herald-Times. In the present lawsuit Wells designated as
evidence on summary judgment 89 new posts in addition to the ones he
previously designated in his earlier lawsuit against the Bernitts.
The trial court granted summary judgment against Wells and in favor
of the Bernitts and the State defendants. (R. 12-18.) With respect to the
Bernitts, the trial court found that Wells had not raised a triable issue on the
element of malice and that the Bernitts' utterances were protected by the
common interest privilege and were substantially true. With respect to the
State defendants, the trial court found that Wells' federal claims of excessive
force were barred by the doctrine announced in Heck v. Humphrey, 512 U.S.
477, 486-87 (1994), which prohibits civil lawsuits that would necessarily
imply the invalidity of criminal conviction. The Court of Appeals affirmed
the trial court, finding that the summary judgment ruling in the earlier
defamation claim collaterally estopped Wells from adducing the chat room
posts as evidence of malice in the present lawsuit, and that Wells criminal
conviction collaterally estopped him from asserting his version of the
take down in support of his excessive force claim. (Wells v. Bernitt, Slip Op.,
The facts that the Court of Appeals determined to be conclusive were
not the conviction itself (a copy of which is not in the record) but rather the
factual synopsis from the Court of Appeals' decision in Wells' criminal case.
I. THE COURT OF APPEALS' DECISION DISPOSING THE SECTION
1983 CLAIM ON COLLATERAL ESTOPPEL CONFLICTS WITH
FEDERAL APPELLATE DECISIONS THAT SPECIFY WHEN A
CONVICTION BARS A CIVIL CLAIM.
The Court of Appeals erroneously gave preclusive effect to its own factual
synopsis of the prosecution's evidence in Wells' criminal trial. In so doing the
Court of Appeals both contravened federal law and misapplied the principles
of issue preclusion.
A. Federal law requires that any preclusive effects of Wells'
conviction be evaluated according to Heck v. Humphrey.
The Court of Appeals effectively disposed of Wells' excessive force claim on
the grounds of common law issue preclusion, holding that all facts
established in his criminal case-as later summarized by the Court of
Appeals-were binding in the subsequent civil suit. In so ruling, the Court of
Appeals ignored the body of federal law that the U.S. Supreme Court has
promulgated to determine when a criminal conviction bars a subsequent civil
Although state courts have concurrent jurisdiction to hear Section 1983
claims they are obligated to follow federal law. When Indiana courts consider
a federal civil rights claim "[f]ederal substantive law controls, and any state
laws or rules which inhibit the prosecution of a § 1983 action are preempted
by the Supremacy Clause of the United States Constitution." Higgason v.
Stogsdill, 818 N.E.2d 486,490 (Ind. Ct. App. 2004). This Court has held that
Indiana laws are ineffective to shield State defendants from federal remedies
by reason of the Supremacy Clause and principles of federalism, to the extent
the Federal Constitution prohibits conduct by state officers. Cantrell v.
Morris, 849 N.E.2d 488, 506 (Ind. 2006). State law may neither expand nor
contract the congressionally established contours of § 1983 and its defenses.
Severson v. Board of Trustees of Purdue University, 777 N.E.2d 1181,1189
(Ind. Ct. App. 2002)(citing Howlett ex rel. Howlett v. Rose, 496 U.S. 356, 365
The federal courts have developed a body of law that determines the
preclusive effects of a criminal conviction on a § 1983 case that arises out of
the same set of events as the crime. The U.S. Supreme Court announced that
doctrine in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), which prohibits a
civil lawsuit that would necessarily imply the invalidity of criminal
conviction. This doctrine resembles the common law doctrine of res judicata
but is a distinct set of principles announced by the federal courts applicable
to § 1983 lawsuits. The cases construing Heck explain that the mere fact that
a plaintiff was convicted does not necessarily bar his subsequent civil suit.
Heck "does not automatically bar Section 1983 claims simply because the
processes of the criminal justice system did not end up in the plaintiffs
favor." VanGilder v. Baker, 435 F.3d 689 (7th Cir. 2006). Federal courts
recognize that the police may effect an otherwise lawful arrest with excessive
force. Robinson v. Doe. 272 F.3d 921, 923 (7th Cir. 2001). "And so a claim of
excessive force in making an arrest does not require overturning the
plaintiff's conviction even though the conviction was based in part on a
determination that the arrest itself was lawful." Id.
The trial court nonetheless found that Wells' federal claims were Heck
barred. The trial court did not dispose of Wells' federal claims on grounds of
common law issue preclusion and the State defendants did not argue issue
preclusion on appeal. The Court of Appeals' published opinion does not cite
Heck. Thus the Court of Appeals' reliance on issue preclusion departs from
the trial court's line of reasoning and the parties' argument as well as from
Wells appealed his convictions of Disorderly Conduct and Operating While
Intoxicated ("OWl") to the Indiana Court of Appeals. In rendering its
decision on the criminal appeal, the Court of Appeals summarized the facts of
the case; its factual synopsis the court correctly viewed the evidence in the
light most favorable to the conviction. Barnes v. State, 925 N.E.2d 420, 426
(Ind. Ct. App. 2010). Thus the Court of Appeals' factual synopsis from the
criminal appeal embraces the officers' testimony and entirely omits Wells'
version of the incident. The Court of Appeals' factual synopsis went far
beyond the facts that established his convictions for OWl and disorderly
conduct; the synopsis describes in succulent detail the officers' testimony that
Wells was belligerent and fought with them, even though Wells was
acquitted of resisting and of battery on a police officer.
By deeming the Court of Appeals' own factual synopsis-as opposed to the
two convictions-preclusive, the Court of Appeals deprived Wells of the
ability to offer testimony on his own behalf. Had the Court of Appeals
analyzed Wells conviction under Heck, Wells would have been permitted to
offer testimony that contradicted that of Troopers Brown and Coryea. In
Evans v. Pokson, 603 F.3d 362, 364 (7th Cir. 2010) the court explained that a
Section 1983 plaintiff who has been convicted is not required to accept the
defendant officers' version of the facts. A plaintiff "need not repudiate his
allegation that he did nothing wrong in order to maintain that he was the
victim of excessive force." In a Heck analysis only the conviction itself has
preclusive effects, not other facts surrounding the incident from which a
conviction might have flowed but did not. VanGilder v. Baker, 435 F.3d 689,
691 n. 1 (7th Cir. 2006). The Court of Appeals' use of its own factual synopsis
from the criminal appeal had the effect of doing precisely what Evans forbids.
It forced Wells to accept the officers' version of the facts. This use of issue
preclusion constricted the Congressionally established contours of § 1983,
which the laws of both Indiana and the United States forbid. Severson v.
Board of Trustees of Purdue University, 777 N.E.2d 1181, 1189 (Ind. Ct. App.
This Court should grant transfer to correct the Court of Appeals' conflict
with federal law.
B. The Court of Appeals erroneously gave preclusive effect to its
own factual synopsis, rather than to the conviction itself.
Even if the Court of Appeals was correct to ignore Heck v. Humphrey
and apply the common law doctrine of issue preclusion, it misapplied that
doctrine by giving preclusive effect to something other than what the trial
court actually determined. Issue preclusion bars subsequent litigation of the
same fact or issue that was necessarily adjudicated in a former suit.
Micro Vote General Corp. v. Indiana Election Com 'n, 924 N.E.2d 184, 197
(Ind. Ct. App. 2010). Issue preclusion applies only to matters actually
litigated and decided, not all matters that could have been decided. Id. The
matters decided must have been appealable in the original suit. Miller
Brewing Co. v. Indiana Department of State Revenue, 903 N.E.2d 64, 68 (Ind.
2009) [emphasis added].
The matters actually litigated and determined at Wells' criminal trial
were that he was convicted of OWl and disorderly conduct and acquitted of
OWl with endangerment, resisting arrest, and battery on a police officer.
Neither judge nor jury issued detailed factual findings in support of the
verdict. The only matters appealable were the convictions for OWl and
disorderly conduct. The officers' testimony regarding the take down was not
appealable in the original suit because that testimony did not form any part
of the judgment. The factual synopsis in the Court of Appeals' decision in
Wells' criminal case contains factual details that far exceed the scope of what
was actually decided in the original suit. Moreover, because that synopsis
was necessarily written in the light most favorable to the convictions, it
omitted all the exculpatory evidence that supported the acquittals, though
the acquittals were actually litigated and decided in the original suit.
The Court of Appeals' decision to give preclusive effect to its factual
synopsis from the criminal case runs contrary to the law of issue preclusion
and warrants reversal.
II. THE COURT OF APPEALS MISAPPLIED RES JUDICATA TO
WELLS' CLAIMS AGAINST THE BERNITTS.
A. The Court of Appeals erroneously found that Wells was
precluded from offering evidence of malice that had been
offered in a prior defamation case regarding a different
The Court of Appeals departed significantly from law and practice in
its application of the doctrine of res judicata to Wells' claims against the
Bernitts. Wells designated evidence of the Bernitts' ill-will against him in
the form of internet chat room posts by the Bernitts criticizing Wells in
harsh, personal terms; one of these posts, predicting that Wells would wind
up in jail, was made two months before he was arrested and suggests that the
Defendants were already planning to set up Wells for arrest. Some of the
same posts-though not all of them-had been designated by Wells as
evidence of malice in a previous lawsuit for defamation against the Bernitts
and others. That lawsuit, Wells v. Shiflet, et al., 53COI-0207-CT-01283
(Monroe Circuit Court), concerned defamatory statements the Bernitts made
to the effect that Wells burned down the house of real estate developer Steve
Smith. Although Wells ultimately won a $390,000 verdict in Wells v. Shiflet,
the verdict was against another defendant; the Bernitts were dismissed out
on summary judgment upon a finding that the chat room posts did not
establish the element of malice with respect to the allegation of arson.
(Bernitts' "Designation of Pleadings from 53C01-0207-CT"01283,"Tab 12,
filed September 17, 2007.)[2.]
[2. This document is not in any party's appendix. The final ruling on summary judgment
as to the Bernitts in Wells v. Shiflett, et al is contained the trial record in Tab 12 of the
Bernitts' Designation of Pleadings from 53COI-0207-CT-01283 filed on September 17,
The trial court and the Court of Appeals found that issue preclusion
prevented Wells from offering the chat room posts as evidence of malice with
regard to the defamatory statements the Bernitts made about Wells' conduct
outside the Crazy Horse. As noted above, issue preclusion bars subsequent
litigation of the same fact or issue that was necessarily adjudicated in a
former suit. Micro Vote General Corp. v. Indiana Election Com 'n, 924 N.E.2d
184, 197 (Ind. Ct. App. 2010). Actual malice exists when the defendant
publishes a defamatory statement " 'with knowledge that it was false or with
reckless disregard of whether it was false or not.' " Journal-Gazette Co. v.
Bandido's, Inc., 712 N.E.2d 446,456 (Ind. 1999)(quoting New York Times Co.
v. Sullivan, 376 U.S. 254, 279-80 (1964)).
Wells designated the chat room posts in the earlier lawsuit to show
that the Bernitts knowingly made false statements about whether he burned
down Steve Smith's house. The question of whether the Bernitts knowingly
lied to the police about Well's conduct outside the Crazy Horse on September
27, 2002 was not before the court in the earlier lawsuit. The posts were
offered to show reckless disregard of the truth with respect to two different
utterances made eight months apart about completely different subjects.
Moreover, the evidence offered was not identical in the two lawsuits. Wells
designated as evidence at least 89 new additional posts in the instant lawsuit
that he did not offer in the earlier lawsuit. A comparison of the posts from
Wells v. Shiflet (found in the Bernitts "Designation of Pleadings from 53C01-
0207-CT-01283)," to the posts that Wells designated in the present lawsuit
(See Plaintiffs "Amendment to Plaintiff Scott D. Wells' Final Reply to
Bernitts' Motion for Summary Judgment and Designation of Additional
Evidentiary Materials," filed July 17, 2007), reveals some overlap but many
new posts as well. Some of the new posts clearly refer to topics related to
Wells' arrest, before and after. For instance, the one post predicting that
Wells would soon be in jail about two months before his arrest (R. 109); and
another revealing post early in the morning on the day of Wells' arrest
predicting he would be "Behind Bars!" (R.120). Three days after Wells' arrest
another post referred to Wells resisting arrest and yet he was acquitted of
that charge (R. 122).
But even if the chat room posts offered in the present case were
identical to those Wells offered in Wells v. Shiflet, issue preclusion would still
be inappropriate because the issues are not the same in the two lawsuits.
Whether the chat room posts showed the Bernitts knowingly made false
statements with regard to setting fire to Steve Smith's house is a distinct fact
from whether the Bernitts knowingly made false statements about Wells
conduct outside the Crazy Horse. Each lawsuit concerned different
utterances. The utterances at issue concerned different incidents that
occurred at different times and places regarding observations by different
persons. It is theoretically possible for the Bernitts to have spoken sincerely
about the arson but maliciously about Wells' conduct outside the Crazy
Horse. It was erroneous for the Court of Appeals to apply issue preclusion to
the chat room posts because the fact of whether the Bernitts recklessly or
knowingly made false statements regarding Wells' conduct outside the Crazy
Horse was not litigated or determined in the earlier lawsuit.
The Court of Appeals' use of issue preclusion to find the chat room
posts inadmissible was error and should be reversed.
B. The Court of Appeals ignored the evidence Wells actually
presented to show the Bernitts' malice.
Even if the chat room posts were correctly precluded, Wells offered other
evidence that raised a disputed issue of material fact with respect to malice.
The Court of Appeals disposed of Wells' claims against the Bernitts solely by
finding that Wells failed to demonstrate the element of malice because issue
preclusion prevented him from offering the chat room posts. As a result,
"there was no admissible evidence before the court to establish actual
malice ... " (Wells v. Bernitt, Slip Op., 53A01-0910-CV-494,p. 10.) This is
simply erroneous. Wells designated a panoply of evidence to show actual
Indeed, Wells offered the chat room posts primarily to show not malice
but ill-will. (Appellant's Appendix, Vol. II, p. 18.) The chat room posts are not
even mentioned in Wells' brief to the Court of Appeals in the section
regarding malice. (Appellant's Br., pp. 18-20.)
While "ill-will" is not an element of the legal definition of actual malice, it
is nevertheless relevant and admissible as evidence in the determination of
whether defendant possessed a state of mind highly conducive to reckless
disregard of falsity. Cochran v. Indianapolis Newspapers, Inc., 372 N.E.2d
1211, 1220 (Ind. 1978). Wells adduced other evidence to show malice. The
evidence of malice consisted principally of the testimony of Lee Williams that
the route along which the Bernitts claimed to have pursued Wells and where
they supposedly observed Wells nearly strike pedestrians, was barricaded
and closed to vehicular traffic for the Lotus Festival. (Appx., Vol. I, p. 57.)
Thus what the Bernitts claimed to have observed was physically impossible.
Wells also adduced the testimony of Ronald Stanhouse, the owner of the
Crazy Horse Tavern, that he conversed with Wells for twenty minutes
immediately before Wells departed and that Wells was not mentally or
physically impaired, and thus not likely to have engaged in the undignified
behavior the Bernitts claimed to have observed when Wells exited the Crazy
Horse. (R. 55-56). Contrary to the Court of Appeals' characterization, the
testimony of Williams and Stanhouse is admissible evidence probative of
whether the Bernitts made their statements with reckless disregard of the
truth. The Court of Appeals erred in failing to treat the chat room posts as
probative of ill-will, rather than malice, and in ignoring all the other evidence
that Wells adduced to prove the element of malice.
For the foregoing reasons the Court should accept transfer on the
issues of whether the Court of Appeals misapplied the doctrine of issue
preclusion to Wells' separate claims against the Bernitts and the State
defendants, and remand this case to the trial court with instructions to deny
their Motions for Summary Judgment.