FOR PUBLICATION
PRO SE APPELLANT: ATTORNEYS FOR APPELLEE:
MARIO L. SIMS, SR. RICHARD A. NUSSBAUM
Westville, Indiana MATTHEW R. KACZMAREK
Sopko, Nussbaum & Inabnit
South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARIO L. SIMS, SR., )
)
Appellant-Plaintiff, )
)
vs. ) No. 50A03-0211-CV-399
)
LINDA SCOPELITIS, )
)
Appellee-Defendant. )
APPEAL FROM THE MARSHALL SUPERIOR COURT
The Honorable Robert O. Bowen, Judge
Cause No. 50D01-0203-PL-0005
October 17, 2003
OPINION - FOR PUBLICATION
VAIDIK, Judge
Case Summary
Mario Sims appeals the decision of the Marshall County trial court granting summary
judgment in favor of Linda Scopelitis, in her capacity as Clerk of the
St. Joseph Courts. In particular, Sims claimed in his complaint that Scopelitis
intentionally destroyed a document, which allegedly had been part of the record in
his criminal trial. Because this same issue previously had been brought before
the Elkhart County trial court and, after a hearing on the merits, decided
against Sims, we find that the continued litigation of the Marshall County action
was barred by issue preclusion. In addition, because Sims continues filing meritless
complaints, we impose conditions upon future lawsuits he may initiate.
See footnote
Facts and Procedural History
This action is part of Sims’ continuing effort to show that he
is the victim of a purported political conspiracy within St. Joseph County, stemming
back to his allegedly false convictions in 1995 for burglary, rape, and criminal
deviate conduct. This time Sims claims that the clerk of courts, Scopelitis,
purposefully destroyed exculpatory evidence, which was part of the record of his criminal
case, thereby preventing him from obtaining evidence necessary to his petition for post-conviction
relief. However, the present appeal is yet another act in this drama.
See footnote
Before Sims filed the suit against Scopelitis that spawned this appeal, he filed
another case against her on November 9, 2001, in St. Joseph County, which
was transferred to Elkhart County. In that case, Sims sued Scopelitis under
Indiana’s Access to Public Records statute,
See footnote requesting the court to compel Scopelitis, in
her capacity as clerk, to produce a copy of a statement allegedly filed
in his criminal prosecution. In particular, Sims claimed that the prosecution attached
a copy of an informant’s statement to a notice of discovery compliance, despite
the fact that the former prosecutor testified that the statement was not attached
to the notice and not filed with the clerk. Corroborating the former
prosecutor’s testimony, Scopelitis testified that she never was in possession of the statement
and that local rules prohibited such an attachment to be filed. The
trial court then ruled in favor of Scopelitis finding that local rules prevented
such attachments from being filed and that she was never in possession of
the statement. Sims appealed, and this Court affirmed the Elkhart County trial
court’s determination.
See Sims v. Scopelitis, No. 20A03-0209-CV-301 (Ind. Ct. App. July
30, 2003),
reh’g denied.
We now arrive to the case at the root of this appeal.
On November 15, 2001 — less than one week after filing his other
action against Scopelitis — Sims filed an action in St. Joseph County seeking
monetary damages from Scopelitis because “of her deliberate indifference to and reckless disregard
for the Plaintiff’s constitutional rights by her failure to act to provide court
records requested by the Plaintiff from her, personally, and because of the ‘bad
faith’ destruction of a portion of the record left in her care as
Clerk, thereby hindering, delaying, or, denying the Plaintiff access to the Courts.”
Appellant’s App. p. 6. The case was removed to federal court, where
all federal claims were dismissed, and the remainder of the case was remanded
for consideration by the state court. After changing venue to Marshall County,
Scopelitis moved for and was granted summary judgment. Sims now appeals.
Discussion and Decision
Sims argues that the trial court erred when it granted summary judgment in
favor of Scopelitis. When reviewing the grant or the denial of a
summary judgment motion, this Court applies the same legal standard as the trial
court: summary judgment is appropriate where no designated genuine issues of material fact
exist and the moving party is entitled to judgment as a matter of
law.
Munsell v. Hambright, 776 N.E.2d 1272, 1278 (Ind. Ct. App. 2002),
trans. denied. The party appealing the denial of summary judgment carries the
burden of persuading this Court that the trial court’s decision was erroneous.
Id. If there are no disputed facts and the issue presented is
purely a question of law, we review the matter
de novo.
Am.
Family Ins. Co. v. Globe Am. Cas. Co., 774 N.E.2d 932, 935 (Ind.
Ct. App. 2002),
trans. denied.
In particular, Sims claims that (1) Scopelitis failed to comply with Indiana Code
§ 5-14-3-9(d); (2) Scopelitis is not entitled to immunity; (3) he complied with
the notice requirements of the Indiana Tort Claims Act; (4) collateral estoppel was
improperly argued before the trial court;
See footnote and (5) a fraud was committed on
the Marshall County trial court.
See footnote However, because we find that Sims’ Marshall
County action against Scopelitis had been barred by issue preclusion, we need not
address these arguments.
Issue preclusion, also referred to as collateral estoppel, bars the subsequent litigation of
an issue necessarily adjudicated in a former suit.
In re Commitment of
Heald, 785 N.E.2d 605, 611 (Ind. Ct. App. 2003),
trans. denied. The
first adjudication is held conclusive even where the second action is on a
different claim.
Infectious Disease of Indianapolis, P.S.C. v. Toney, 771 N.E.2d 1224,
1228 (Ind. Ct. App. 2002),
trans. denied. Issue preclusion requires: (1) a
final judgment on the merits in a court of competent jurisdiction, (2) identity
of issues, and (3) the party to be estopped was a party or
the privity of a party in the prior action.
Id. A
prime consideration in the use of issue preclusion is whether the party against
whom the prior judgment is asserted had a full and fair opportunity to
litigate the issue and whether it would be otherwise unfair under the circumstances
to permit the use of issue preclusion.
In re Heald, 785 N.E.2d
at 612.
Sims first filed an action, which was transferred to Elkhart County, seeking to
compel Scopelitis to produce a document allegedly filed during his criminal case.
While the Elkhart action was still pending, Sims filed another action — this
time transferred to Marshall County — against Scopelitis seeking damages for the alleged
destruction of the same document. After a hearing on the merits, the
Elkhart County trial court determined that the local rules of practice and procedure
provided that such documents were not to be attached nor filed with the
clerk and that the document was never in the possession of Scopelitis.
Thereafter, the Marshall County trial court granted summary judgment in favor of Scopelitis.
Based on the above facts, we find that when summary judgment was sought
in Marshall County, the action had become barred by issue preclusion. In
both the Elkhart County and Marshall County cases, Sims sued Scopelitis. Thus,
the same parties were involved in both actions. Also, the Elkhart County
trial court, a court of competent jurisdiction, ruled against Sims after a hearing
on the merits. At that hearing, Sims presented evidence, called witnesses, and
even testified. This was a fair opportunity to litigate the issue fully.
Finally, the issue before each trial court was identical — whether Scopelitis
destroyed a document allegedly in her possession. One lawsuit sought to compel
disclosure of the alleged document, and the other sought to penalize the clerk
for allegedly destroying the document. Regardless of the differences in the relief
sought, the underlying issue remained the same. Accordingly, Sims was barred from
continuing to relitigate this issue against Scopelitis in the Marshall County trial court
because the same issue previously had been decided against him, after a hearing
on the merits, in the Elkhart County trial court. Therefore, we affirm
the Marshall County trial court’s grant of summary judgment in favor of Scopelitis.
Lastly, Sims seems to have a penchant for litigation, regardless of the merits
of his claims or prior adjudications of competent courts. Such an abuse
of the judicial system will not stand. Undoubtedly, Sims will refuse to
heed this warning and will continue filing meritless complaints; therefore, we hereby admonish
him. With respect to any future lawsuits that arise directly or indirectly
from any alleged conspiracy by public officials related to Sims’ arrest, prosecution, conviction
or confinement for burglary, rape, and criminal deviate conduct, we impose the following
conditions upon Sims:
(1) Prior to filing any such lawsuit, Sims shall submit
to the trial court a copy of the complaint he wishes to file;
(2) Sims shall also file a copy of all of the relevant
documents pertaining to the ultimate disposition of each and every previous case instituted
by Sims against the same defendant
or emanating, directly or indirectly, from any
alleged conspiracy by public officials. This includes, but is not limited to, the
complaint, any motions to dismiss or motions for summary judgment filed by the
defendants in those actions, the trial court order announcing disposition of the case,
and any opinions issued in the case by any appellate court; (3)
Sims shall file a legal brief, complete with competent legal argument and citation
to authority, explaining to the court why the new action is not subject
to dismissal by application of the doctrines of
res judicata, collateral estoppel, or
law of the case. If, after reviewing these materials, the trial court
determines that the proposed lawsuit is frivolous, malicious, fails to state a claim
upon which relief may be granted, or is otherwise utterly without merit, the
court shall dismiss with prejudice the proposed complaint; (4) Sims is required to
verify his new complaint pursuant to Indiana Trial Rule 11(B); and (5) Sims
is specifically instructed to attach to such complaint a separate copy of this
final section of the instant opinion.
Judgment affirmed.
KIRSCH, J., and BAILEY, J., concur.
Footnote:
We hereby deny Sims’ request to strike portions of the Appellee’s brief.
Footnote:
Although not all directly linked to Scopelitis, Sims has been involved in
at least forty-seven state court appeals. As far as we can tell, nearly
all his civil and criminal appeals have been unsuccessful and are directly or
indirectly related to his arrest, prosecution, conviction, or confinement for burglary, rape, and
criminal deviate conduct.
Footnote:
Ind. Code § 5-14-3-9(d).
Footnote:
Even though we review the grant of summary judgment de novo, we
determine that the issue of collateral estoppel was properly before the trial court.
The timing requirements of Indiana Trial Rule 56 are intended to prevent
surprise as a result of the last minute filing of affidavits and other
materials. Marathon Petroleum Co. v. Colonial Motel Props., Inc., 550 N.E.2d 778,
781 (Ind. Ct. App. 1990). In this case, there was no unfair
surprise. Sims was a participant in the Elkhart County action; thus, he
was well aware of the Elkhart County trial court’s judgment. Moreover, the
Elkhart County trial court decision was not issued until after Scopelitis moved for
summary judgment in the Marshall County trial court. Consequently, it would have
been impossible for Scopelitis to argue collateral estoppel in her original summary judgment
motion. For these reasons, we find that it was entirely appropriate for
Scopelitis to raise the collateral estoppel argument during the summary judgment hearing and
hereby deny Sims’ request for sanctions.
Footnote:
In addition, Sims presents an argument on appeal based on an alleged
fraud committed by Scopelitis and seeks leave to present newly-discovered evidence in the
trial court. His motion to present newly-discovered evidence was denied by our
motions panel while the present appeal was pending. Although we may reconsider
his motion, we will decline to do so in the absence of clear
authority establishing that there was error as a matter of law. See
Oxford Fin. Group Ltd. v. Evans, 795 N.E.2d 1135, 1141 (Ind. Ct. App.
2003). Because Sims failed to provide such authority, we deny his motion.