Supreme Court of Indiana
No. 63A01-0009-CV-316
PHILLIP V. FREDERICK,
Appeal from the Pike Circuit Court.
Appellant-Respondent
vs.
CATHY S. (FREDERICK) NUGENT,
The Honorable Robert L. Arthur,
Appellee-Petitioner
Special Judge
PETITION to TRANSFER (AMENDED)
[filed July 10, 2001, DENIED
Oct. 17, 2001]
I. QUESTIONS PRESENTED on TRANSFER
1. Comes now the Appellant-Respondent-Father in the above case, representing himself, and petitions this Supreme Court of Indiana for transfer of this case to its jurisdiction, pursuant to Indiana Appellate Rules 56B and 57, and states the issues warranting transfer as follows:
A. The lower and appellate courts of Indiana are being allowed to violate a litigant's right to due process by totally ignoring the preponderance of testimony and evidence submitted (from either litigant) that demand an entirely different decision or judgement.B. Those courts are being allowed to prejudge the issues before them, often reversing their own prior judgements in similar cases, simply because (no other explanation to be found) one of the litigants is a pro se, self-representing litigant.
C. The Appeals Court's primary function appears to be upholding the integrity of the lower courts instead of maintaining corrective oversight of them to insure that justice is guaranteed for Indiana citizens in those courts.
III. BACKGROUND and PRIOR TREATMENT
2. The Indiana Court of Appeals decided this appeal on May 21, 2001, against the Father- Appellant, in a memorandum decision - not for publication. No Petition for rehearing was filed with the Appeals Court because (1) the Father-Appellant is a forced pro se litigant (unable to afford, or find, a willing and/or appeal-skilled licensed counsel within reasonable distance) and (2) the Appeals Court's clear anti-pro-se bias has now been shown in no less than two of his appeals - a rehearing would surely be pointless.
4. Post-final-decree issues presented to that court for review were:
"(A) emancipation, and, therefore, proper custody and child support, of the parties' two children (B) whether the new evidence heard by the trial court, revolving around the welfare of those children, was sufficient to overturn the prior final decree, regarding child support, child custody, and property division - considering the Fathers dismissed appeal (63A01-9805-CV-I 67) of that decree, his forced pro se status, and the need for expediency for the benefit of those children, as opposed to a separate, more time-consuming fraud and abuse of process action; and (C) the trial courts clear bias and prejudice in applying applicable Indiana Laws relevant to the preceding issues, undue delay, and denial of the Fathers right to due process under the law, aggravating the case's damage to the Father and the parties' two Sons." [Appellant's Brief, p.1, para. 1].5. The Appeals Court, using its standards of not "reweighing the evidence" and not reversing "unless there is a total lack of supporting evidence," affirmed the trial court and remanded the case to the lower court for assessment of appellate fees, from the near-bankrupt Father, particular to the reversal of the property division sought. In so doing, it also ignored, as did the trial court, the vast preponderance of evidence presented to the lower court that showed both sons were incapable of supporting themselves, even through their full-time employment, and that the final decree property division was indeed erroneous, being so closely intertwined with child custody and tainted by unadjudicated and unacknowledged, ignored perjury by the Mother and by new, and potentially new, evidence to the contrary.
IV. ARGUMENT
A. Conflicts in Appeals Court Decisions
6. The Decision cites, on p.4, Connell v. Welty, 725 N.E. 2d 502, 504 (Ind. Ct. App. 2000) and Moody v. Moody, 565 N.E.2d 388, 390 (Ind. Ct. App. 1991), on p.5: "Emancipation thus terminates a noncustodial parent's obligation of support and frees a child from the care, custody, and control of his or her parents. Emancipation of a child is not presumed [as the Mother did in June of 1999, by ejecting David from the home], but must be established by competent evidence, of an express agreement, or by the conduct and acts of the parent and child." It should be noted that emancipation also terminates the custodial parent's obligation of his/her support obligation portion stated on the applicable child support worksheet (none ever signed and verified in this case) - all emphasis seems to usually be, unjustly, directed toward the non-custodial parent's obligation. The Appeals Court has contradicted these rulings in this appeal. Additionally, in Young v. Young, 654 N.E. 2d 880, 883 (Ind. Ct. App. 1995), it stated "[N]either a child's employment nor independent living necessarily means the child is emancipated. Rather, emancipation occurs when the child places her(him)self beyond the control, custody and care of her(his) parents." The lower court saw no evidence that either son had so placed himself. Indeed, the preponderance of the evidence (standard used in any other civil case), from both Mother and Father, undisputed, showed them financially unable to live in a home not owned and provided by either parent. It was the Mother-Appellee who sought to force the emancipation of son David without a court order to that effect and to prevent his further education by destroying the needed scholarship applications (see Appellant's Brief , p.7, para.14 and Appellant's Reply Brief, p.8, para.16).
7. Both the lower court judge and the Appeals Court have declared the sons emancipated solely upon the undisputed facts that they were both full-time employed (or employable) and graduated from high school. But, as the above cases strongly suggest, full-time employment does not mean one is able to meet his necessary living expenses. From the time of the Father's Verified Petition to Modify Order (June 11, 1999) through the last hearing, the record shows [Father's Exhibits - Vol. II, pp.302 (based upon each son's full-time employment income), 312, and 313, and Mother's testimony - p.335-line 5 - 336-line 6] both sons were receiving necessary living expense assistance from both parents and their paternal grandmother, although both sons were full-time employed at various times throughout that period. Such assistance is necessary and obligatory for both parents of unemancipated children - not "gratuitous," as declared by the Appeals Court (Decision, p.6). David's testimony [Record, Vol.I, pp. 104 - 106] clearly indicates his intent to attend post-secondary school, should the financing be arranged (by a caring parent, and not one who would sabotage that desire in order to force his emancipation - the Mother). And, he is, indeed, now enrolled at I.T.T. Technical Institute of Evansville, working part-time and schooling full-time, through his father's assistance (additional debt commitment, not equally shared by the parents as with Jonathan).
8. The final decree, of March 24, 1998, did contain a educational expense support order for Jonathan who was then full-time attending post-secondary education. This proves that he was definitely not emancipated at the time of the final decree - schooling full-time and working part-time. This error was committed by two lower court judges and, now, the Appeals Court. The knowledge of the above relevant cases and their emancipation specifics did not come to the Father until after the first appeal had been submitted and dismissed.
9. It was a grave error, by both the lower and Appeals courts, to exclude this evidence and declare or assume these boys emancipated. The effect would be to license the Mother to eject both sons from their home (which she already did to David in June of 1999, allowing him to return two months later) in order to sell it at substantial profit, forcing both sons out and to a lower standard of living (than had no dissolution taken place) or even onto the public assistance rolls. This certainly exemplifies the danger in only looking for facts and evidence that support the trial court's decision.
B. Federal Law Considerations and Conflicts
10. 28 U.S. Code § 1654 states "In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein." Any intentional discrimination, by any judge, against a pro se litigant (whether by choice or forced to be so) is a violation of this Federal Statute (as well as Indiana Judicial Canons 3B(3) and (9)). If the rules of such courts are so restrictive as to assign bar-certified characteristics and abilities (such as "due diligence") to pro se litigants, then those rules are clearly discriminatory to that class of citizens.
11. Amendments V and XIV of the U.S. Constitution guarantee the right of due process and equal protection of the laws, respectively. Ignoring bona fide evidence, a preponderance of which is contrary to the judgement (and undisputed, as well), constitutes a violation of these civil rights and damages not only the adverse litigant but also can damage any innocent third parties in the case. Such cannot constitute justice. Add to this the concepts of not reweighing evidence and only looking for facts and evidence that support the trial court's decision and a futile appeal process results, leaving no other remedy, to the adverse party, but to appeal to the Federal court system.
12. 18 U.S. Code § 241 states "If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; ... They shall be fined under this title or imprisoned not more than ten years, or both ..." This clearly confirms the importance of civil rights in our Federal Law, excludes no "persons" or class thereof, and is a reaffirmation of "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" in Amendment XIV, U.S. Constitution. This case may very well be indicative of Indiana courts' routine deprivation of property from husbands, fathers, and/or pro se litigants without the due process of law which is inherently contained in the "weighing" or "reweighing" of their bona fide, relevant evidence.
13. U.S. Constitution, Article VI states "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding" and "... judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution." Any judge who violates this Oath, as repeatedly done in this case, is surely, as a minimum, in error.
C. Reconsideration, Clarification, or Modification Needed
14. As in the Decision (p.4), the Appeals Court often states "we will neither reweigh the evidence nor reassess the credibility of witnesses, and we will not set aside the finding of the trial court unless it is clearly erroneous. Connell v. Welty, 725 N.E.2d 502, 504 (Ind. Ct. App. 2000). We will not reverse unless there is a total lack of supporting evidence or the evidence is undisputed and leads solely to a contrary conclusion." One must ask: then, what is the purpose of copying and sending the Record of Proceedings on appeal? And, how can a trial court's "sound discretion" be confirmed, when challenged by appeal, without reweighing the evidence? Not "reweighing the evidence" and/or excluding nearly all of one litigant's very relevant evidence is clearly an infringement to that litigant's right of due process and equal treatment under the law (U.S. Constitution, Amendments V and XIV, respectively), and can, as in this case, not only cause undue damage to that litigant but also the innocent children of the parties. The effect is to empower local judges to continue, even worsen, their biases against certain litigants or classes of litigants before them. The assumption of the lower court's sound discretion is erroneous in this regard. The Appeals Court's function is surely to uphold the law and apply it fairly to all citizens (as well as insure that lower courts do likewise), not solely to protect the integrity of the lower court and its decisions. This clearly requires a "reweighing of the evidence" - at least, that evidence that speaks to the issues on appeal. Also, if the lower court's bias is an issue, based upon its exclusion of bonafide undisputed evidence, a "reweighing" of all the evidence would be necessary to obtain justice for all litigants and parties involved. Besides, the preponderance of the evidence (virtually all undisputed, from both Father and Mother) shows both sons of the parties unemancipated until the older, Jonathan, turned twenty-one on September, 13, 2000 (statutorily emancipated).
15. In the Decision (p.8) the Appeals Court said " Moreover, a mere reference to a petition filed in the trial court does not comply with the spirit or letter of former Appellate Rule 8.3(A)(7). . . A brief must be prepared so that all questions can be determined from an examination of the brief alone." Again, the question begs: then, what is the record for? To reproduce all applicable record portions into a brief would surely extend every brief's size beyond the Appellate Rules' limits. This rule is too highly restrictive (especially to a forced pro-se litigant). The Father-Appellant referred to evidence in the Record, of the Mother-Appellee's perjury [first appeal (63A01-9805-CV-I 67), p.129], her counsel's assistance therein, and the trial judge's subsequent complicity [Record, Vol.I, pp. 37, 39, 40, 71, 77, 78, 81, 84, and 85 and Vol.II, p.331-line 16 - p.333-line 9]. This "error" has never been officially adjudicated as a crime - or, at least, as having bearing on any proceedings in this case, at any judicial level. And, as an attachment to the Father-Appellant's Verified Petition to Modify Order as well as specifically contained in his subsequent Counter Response and Assertion of Fraud, was, indeed, before the lower court judge concerning the Mother-Appellee's fitness for lawful parenthood as well as truthful testimony.
16. The Appeals Court cites (Decision, p.8) Indiana Code § 31-15-7-9.l(a) "...provides that 'orders concerning property disposition entered under [the Dissolution of Marriage Act] may not be revoked or modified, except in case of fraud.' The rationale behind limiting the modification of a property distribution is the strong policy favoring the finality of marital property divisions and the need to eliminate vexatious litigation which often accompanies the dissolution of a marriage." This statute, in §(b), states a six-year statute of limitations upon the fraud. The word "fraud" has no adjective, or modifier, in front of it. Yet, the Appeals Court routinely erroneously inserts "intrinsic" (as in Ind. Trial Rule 60B) or "extrinsic" in applying the statute. This narrows the clear original intent of the Legislature and, thus, modifies that law. Modification of laws is a Legislative function. Judicial legislating is unconstitutional according to the separation of powers clauses in both the Indiana and U.S. Constitutions. It is clear that the Legislature was not as concerned about "vexatious litigation" as it was, is, about righting wrongs perpetrated through our courts - also called "abuses of process."
17. In the Appeals Court (Decision, p.8), Conner v. Conner, 666 N.E.2d 921, 926-27 (Ind. Ct. App. 1996) and Wilhelm v. Wilhelm, 397 N.E.2d 1079, 108 1-82 (Ind. Ct. App. 1979) are quoted regarding the finality of property division, but neither of those cases involved a convictable perjurer obtaining custody of the minor child(ren) and possession of the marital residence because of the custody award. Award of custody and of possession of the former marital home are nearly always inextricably linked - issues revolving around one will always naturally affect the other.
18. The Decision (p.9) states "Fathers allegations of 'new evidence' and changed circumstances 'over time' could not warrant a modification in the final distribution of the parties marital property." If the six-year statute of limitations in Ind. Code § 31-15-7-9.l(b) is considered, modification is certainly warranted. New evidence to the contrary should logically, by right of due process, overturn, or be justly considered for overturning, any court order. Additionally, had the lower court properly found these "young men" unemancipated, it would have necessitated a new (this time, signed and verified) child support worksheet - necessitating the compulsion of the Father's subpoena requesting true and accurate figures on the Mother's income. This would have caused yet another confirmation of her perjury regarding her income, as well as establishing true figures for the worksheet.
19. The Father's "allegations" of fraud (Decision, p.9) are provable in the record. They have never been "vague." And they clearly related to the issues before the lower court. The Appeals Court (along with the lower court) has ignored a clear perjury. This is also a clearly significant departure from Law or Practice. For the sake of expediency for the then-unemancipated sons' well-beings, (rather than a separate action) the Father included his assertion of fraud in a pleading to the lower court (which it basically ignored) [Record, Vol.I, p.141].
20. In the Decision (p.11), the Appeals Court addresses a jurisdictional question. But, according to former App. R. 3(A) the Appeals Court "acquires general jurisdiction" of the case upon filing the record of proceedings. And former App. R. 15(B) suggests that general jurisdiction does not return to the lower court until at least 30 days after the Appeals Court's decision. The Appeals Court has repeatedly ruled that the lower court retains jurisdiction during an appeal; yet, it is clear that App. R. 3(A)'s transfer of jurisdiction is, among other purposes, intended to prevent continued bias and prejudice of a lower court judge against a litigant during the pendency of an appeal . This very appellate rule was used by the Clerk of Pike Circuit court to deny the Appellant-Respondent-Father's praecipe for a T.R. 53.1 withdrawal on July 16, 1999 [Record, p.16]. The issue of which court has jurisdiction, during the pendency of the appeal, of extra-appeal matters, especially when the bias of a trial judge is in question, certainly needs clarification. The lower court has continued to rule upon appeal-related matters prior to the proper return of its jurisdiction (see Father's Memorandum and Objection to Lower Court Order of February 27, 2001, and the lower court's civil notice of June 11, 2001, setting the Mother's Petition for Appellate Fees for hearing on July 25, 2001).
D. Significant Departure from Law or Practice
(1) Misstatement of the Record
21. In the final decree, the lower court did, indeed, enter an educational expense support order. And, the special judge confirmed this in his judgement of August 4, 2000 (see Appellant's Brief, p.3, para.9). In the Decision (footnote 2, p.2), the Appeals Court says the Father did not provide a copy of the final decree (regarding Jonathan's emancipation); yet this is surely still in the Clerk's records for that failed first appeal (63A01-9805-CV-I 67) and the Mother did provide exactly that as an attachment to her Motion to Dismiss (this appeal) filed on January 12, 2001. The Appeals Court, therefore, had the final decree available to it, and before it, in two locations within the Clerk's office. Besides, it was an omission in that final decree, of a declaration of emancipation of Jonathan, that the Father argues in his appellate briefs. The final order of August 4, 2001 confirmed this omission by specifically declaring Jonathan ,as well as David, emancipated (erroneously) - neither having ever been theretofore so ordered or declared.
22. On p.3 of the Decision, the trial court's denial of the Father's Verified Petition to Modify Order is quoted but major portions are omitted. That order states, in entirety [Record, Vol.I, p.7]:
The Court finds that there is no basis for Respondent's Motion to Stay Execution or his Petition to Modify Order as it pertains to the property division. Most allegations are brought outside the applicable statute of limitations. Respondent's motions do not raise the issue of fraud. These matters were heard by the trial court. Respondent's appeal of the final decree was denied. Therefore, these matters are not now subject to further review. The issue of custody, support modification, or emancipation can be heard. The Court sets these issues only for hearing on February 15, 2000 at 1:30 P.M.""Most allegations are brought outside... " means some were brought within. The fraud allegations were neither heard by the first trial judge (since he was a passive participant) nor addressed by the Appeals Court in the first appeal (63A01-9805-CV-I 67).
23. This statement (Decision, p.6) cannot be found in the record: "the record reflects that Father specifically told David not to get another job because employment might have an adverse impact on his sons pending lawsuit arising out of a recent automobile accident." This is false, a repetition of opposing counsel's question at trial and subsequent unfounded statements in extra-appeal pleadings submitted by him. The Father answered and refuted this at trial [Record, testimony: Vol.I, p.171, line 25; record correction: p.183, line 3]. Including this in its decision is clear evidence of the Appeals Court's anti-pro-se, or pro-licensed-counsel, bias.
24. The Appeals Court again misstates the record (Decision, p.9, first para.): it quotes from the Father's Verified Petition to Modify Order (indicating that court can delve into the record when it suits its pre-judged decision) but omits the more important part:
"11. Neither son has ever wanted to be forced from his birth home until his own needs dictated such. Their mother did not say anything to them about having to sell the home until after the March 24, 1998, decree was issued. She had deceived them prior to this, indicating the home would be available to them until they voluntarily decided to leave. It is believed that neither son wishes, or can financially afford, to leave for the foreseeable future and that neither wants their mother to continue in the home with them. David, at least, is prepared to testify to this, as well as his desire that his father possess the home, and other pertinent issues. Ms. Carter [now, Mrs. Nugent] appears to have considered her sons and their home a burden: she should be relieved of them, but not her obligations therein." [Record, Vol.I, p.24].(2) Court of Appeals Bias
25. The Decision uses "no cogent argument" in a couple of places. Yet, the Father's briefs arguments are quite cogent, as this (Supreme) court will surely confirm. As confirmed above, the Appeals Court has reversed itself on some of its own cases, misapplied statutes, and (in the first appeal decision, expressly) admonished the Father for "proceeding without licensed counsel" (as if he had a choice). (Judge Darden was empaneled on both decisions.) These violations are so extreme as to show clear anti-pro-se prejudice. Such is illegal according to Title 28 U.S. Code § 1654. Also, if laws and rules are written so that a common citizen acting pro-se cannot reasonably follow them, then they discriminate against such a citizen (of, by, and for whom such laws and rules exist and to whom all lawyer and judicial oaths are sworn, along with Almighty God). The Mother's counsel encouraged and appealed to this bias in virtually all of his extra-appeal pleadings to the Appeals Court - to apparently successful effect.
26. Virtually all the foregoing paragraphs
are indicative of the Appeals Court's anti-pro-se bias. By refusing
to confirm the fraud in this case heretofore, easily found in the record,
the Appeals Court has effectively become a co-conspirator after the fact
(yet, another danger of ignoring
bona fide evidence).
V. CONCLUSION
WHEREFORE, the Appellant-Respondent-Father prays the Court (1) set aside the Court of Appeal's decision and transfer jurisdiction of same to this Supreme Court of Indiana, (2) lawfully decide said appeal on the merits contained in the three briefs submitted and the Record of Proceedings, (3) refer to the first appeal record as needed, (4) admonish the Court of Appeals for its errors, and (5) render unto him all other relief just and proper in the premises, including an order stating the deficiencies in this petition and allow him leave to amend them as needed in sufficiently reasonable time.
Respectfully submitted,
Phillip V. Frederick____________________
Phillip V. Frederick, Appellant Pro Se
VI. VERIFICATION
Phillip V. Frederick____________________
Phillip V. Frederick, Pro Se
VII. WORD COUNT CERTIFICATE
Phillip V. Frederick____________________
Phillip V. Frederick, Pro Se
VIII. CERTIFICATE of SERVICE
Russell E. Mahoney
Mahoney Law Office
P.O. Box 176
Petersburg, IN 47567
812-354-8121
Attorney for
Appellee
Phillip V. Frederick____________________
Phillip V. Frederick
8385W Road 350N
Hazleton, IN 47640
812-354-8679
Appellant Pro Se
STATE OF
INDIANA
)
IN THE PIKE CIRCUIT COURT
) ss:
COUNTY OF
PIKE
)
CAUSE NO. 63C01-000l-CP-00009
PHILLIP V.
FREDERICK,
)
Plaintiff,
)
)
vs.
)
)
SUSAN J.
McCARTY,
)
Defendant.
)
ORDER
[entered June 15, 2001]
This is a legal malpractice action
commenced by the pro se plaintiff, Phillip V. Frederick ("Mr. Frederick"),
against the defendant, Susan J. McCarty ("Ms. McCarty"). Ms. McCarty has
filed a motion to dismiss Mr. Fredericks complaint for failure to state
a claim upon which relief can be granted. The presiding judge of this Court
assumes jurisdiction over this matter, pursuant to order of the Indiana
Supreme Court, entered on May 31, 2001. The Court, having reviewed the
pleadings, Ms. McCartys motion, and the submissions of the parties, now
enters this order.
I. MATERIAL FACTS
From August 12, 1997 to January 15, 1998, Ms. McCarty represented Mr. Frederick in a dissolution action. In his complaint, Mr. Frederick alleges numerous omissions by Ms. McCarty precipitating her dismissal. For example, Mr. Frederick alleges that Ms. McCarty failed to file any documents on his behalf during the five month period that she represented him. See Complaint, ¶ 8. He also, alleges that Ms. McCarty failed to subpoena "information proving the crimes committed (several misdemeanors by the former wife and both sons and one felony count by the former wife) theretofore in the case[,]" which he wanted presented to the prosecutor and judge, and file a motion for temporary emergency custody of his sons. Compl., ¶¶ 16(C) and 21. Mr. Frederick alleges that Ms. McCarty also failed to subpoena certain documents, as he requested, for a hearing scheduled on November 14, 1997. Compl., ¶¶ 9 and 21.
According to Mr. Frederick, from November 18, 1997, through January 14, 1998, Ms. McCartys only efforts on his behalf were twelve telephone conversations. Compl., ¶ 10. During each of these conversations, Mr. Frederick emphasized his desire that certain information be subpoenaed and concerns regarding the behavior of his sons, which, according to Mr. Frederick, Ms. McCarty did nothing about. Id. On January 15, 1998, following a telephone conversation with opposing counsel, Ms. McCarty allegedly "began arguing for that counsel and litigant to her own client." Compl., ¶ 11. According to Mr. Frederick's complaint, Ms. McCarty "then refused to subpoena the client-requested information highly relevant to the case." Id. As a result, on January 15, 1998, Mr. Frederick "was forced to dismiss her summarily... ." Id.
II. STANDARD OF REVIEW
A motion to dismiss, pursuant
to Ind. Trial Rule 12(B)(6), for failure to state a claim upon which relief
can be granted tests the legal sufficiency of a claim, not the facts which
support it. Americanos v. State, 728 N.E.2d 895, 897 (Ind. Ct. App.
2000), trans.denied. In reviewing a Rule 12(B)(6) motion, the trial
court views the complaint in the light most favorable to the plaintiff,
drawing every inference in his favor, to determine if there is any set
of allegations under which the plaintiff could be granted relief. State,
Indiana Civil Rights Com'n v. INI, 716 N.E.2d 943, 945 (Ind. 1999),
reh'g denied. In doing so, the court accepts the facts alleged in
the complaint as true. Yoder Grain, Inc. v. Antalis, 722 N.E.2d
840, 844 (Ind. Ct. App. 2000). However, only well-pleaded facts must be
taken as admitted. Id. at 845.
III. DECISION
A. Striking of Pleadings
Indiana adheres to the doctrine of notice pleading. See Ind. Trial Rule 8(A). Notice pleading merely requires a party to plead the operative facts so as to place the defendant on notice as to the evidence to be presented at trial. State v. Rankin, 260 Ind. 228, 230-31, 294 N.E.2d 604, 606 (1973); Cahoon v. Cummings, 715 N.E.2d 1, 13 (Ind. Ct. App. 1999), reh 'g denied. To state a claim for relief, the pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" T.R. 8(A)(1). Scandalous or impertinent material is not permitted in pleadings and other filings before the Court. Such material may be stricken. See, e.g., State v. Hoovier, 673 N.E.2d 767, 768 (Ind. 1997) ("Striking scandalous or impertinent material has been a part of Indiana practice since long before adoption of the present trial rules.").
"A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the.. . integrity of a judge..." Ind. Professional Conduct Rule 8.2(a). The law presumes that a judge is unbiased and unprejudiced in the matters that come before the judge. Flowers v. State, 738 N.E.2d 1051, 1060 (Ind. 2000). Such statements, when made, are prejudicial to the administration of justice and, therefore, constitute professional misconduct. See Ind. Professional Conduct Rule 8.4(d). Under Indiana law, it is now well-settled that "a litigant who chooses to proceed pro se will be held to the same established rules of procedure that trained counsel." Diaz v. Carpenter, 650 N.E.2d 688, 691 (hid. Ct. App. 1995), cert. denied, 516 U.S. 1013, 116 S.Ct. 572, 133 L.Ed.2d 496 (1995); Rickels v. Herr, 638 N.E.2d 1280, 1283 (Ind. Ct. App. 1994). Furthermore, this Court shall hold pro se litigants to the same standard of conduct as lawyers. Cf Diaz, supra.
In his complaint, Mr. Frederick repeatedly accuses the presiding judge of being biased. See Compl., ¶¶ 11, 15 and 16(B), (E) and (G). Such accusations are ill-advised, to say the least. These offensive accusations are so interwoven with legitimate statements of fact that the Court has considered striking, sua sponte, the entire paragraphs in which the statements are found. Such accusations this Court cannot countenance. The Court chooses, instead, to strike only the inappropriate portions of Mr. Fredericks complaint. Those portions are, hereby, stricken, and Mr. Frederick is admonished that such accusations disserve his interests by interfering with this Courts due deliberation on the merits of the issues presented, are prejudicial to the administration of justice, and demean the judiciary.
B. Statute of Limitations
Ms. McCarty has asserted, as an affirmative defense, that Mr. Fredericks cause of action for legal malpractice is barred by the applicable statute of limitation. The statute of limitation applicable to a claim of legal malpractice is two years. Ind. Code § 34-11-2-4; Morgan v. Benner, 712 N.E.2d 500, 503 (Ind. Ct. App. 1999), reh 'g denied. Furthermore, legal malpractice actions are subject to the "discovery rule." Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992). Under the discovery rule, the statute of limitations does not begin to run until such time as the plaintiff knows, or in the exercise of ordinary diligence could have discovered, that he had sustained an injury as the result of the tortious act of another. Id. For a cause of action to accrue, it is not necessary that the full extent of damage be known or even ascertainable, but only that some ascertainable damage has occurred. Morgan, supra.
In her brief, Ms. McCarty argues
that Mr. Fredericks action is based upon alleged omissions that occurred
while she was his attorney. In support of this argument, Ms. McCarty points
to the allegations of Mr. Fredericks complaint, where he describes "all
of the actions not undertaken by the defendant on his behalf in the divorce
proceeding."
See Brief in Support of Defendants Motion to Dismiss,
p. 2. Ms. McCartys position, of course, is that Mr. Frederick was aware
of these alleged omissions when he fired her on
January 15, 1998. Id. The
Court agrees. Accepting the well-pleaded facts as true, as the Court must,
it is clear that, on the day that he fired Ms. McCarty, Mr. Frederick knew
of her alleged omissions.
It is evident that Mr. Fredericks primary concern during the dissolution proceeding was obtaining custody of his children, The dissolution action was set for a hearing to resolve all remaining issues on November 14, 1997. This hearing was continued on the opposing partys motion to January 21, 1998. One of the issues to be addressed during this hearing would be, and presumably was, custody of the children. According to Mr. Frederick, Ms. McCarty repeatedly failed to subpoena records that he felt were pertinent to the issue of custody. See Compl., ¶¶ 9-10. The gravamen of Mr. Fredericks cause of action against Ms. McCarty, it seems to the Court, are these repeated failures to heed to his wishes regarding this issue.
In reviewing Mr. Fredericks complaint, it is not entirely clear how the outcome of the underlying litigation would have been more favorable but for Ms. McCartys alleged negligence. See Picadilly, Inc. v. Raikos, 582 N.E.2d 338, 344 (Ind. 1991). Any doubts that the Court might have on this point are of no consequence, as the issue presented is whether Mr. Fredericks claim is barred by the statute of limitation for legal malpractice actions. Viewing the complaint in the light most favorable to Mr. Frederick, the alleged omissions giving rise to this cause of action, with the exception of retention of Mr. Fredericks file by Ms. McCarty, occurred between August 12, 1997 and January 14, 1997. See Compl., ¶ 10 ("Defendants only efforts on Plaintiffs behalf were a total of twelve phone conversations...."). Any injury sustained by Mr. Frederick as a proximate result of Ms. McCartys alleged omissions occurred during this period of time.
A review of the complaint reveals
that no other event occurred after Ms. McCarty was fired that served to
further enlighten Mr. Frederick regarding the effect of her alleged omissions.
The Court is unpersuaded by Mr. Fredericks argument that discovery of the
injury did not occur until he conducted research for an appeal in the dissolution
action.
See Compl., ¶ 15. The well-pleaded facts establish
that Mr. Fredericks claim accrued on or before January 15, 1998. He filed
his complaint on January 18, 2000. As such, Mr. Frederick failed to file
his action within the two-year period of discovering his purported injury.
Therefore, Mr. Fredericks cause of action for legal malpractice against
Ms. McCarty is barred.
IV. CONCLUSION
The Court strikes portions of Mr. Fredericks complaint accusing the presiding judge of bias and admonishes Mr. Frederick to refrain from such accusations and misconduct in any future filing and proceedings before this Court. The Court finds that Mr. Fredericks cause of action accrued on, or before, January 15, 1998. Because Mr. Frederick did not file his complaint until January 18, 2000, his cause of action is barred by the statute of limitation applicable to legal malpractice actions. Accordingly, Ms. McCartys motion to dismiss Mr. Fredericks complaint, pursuant to T.R. 12(B)(6), for failure to state a claim upon which relief can be granted, should be, and the same is, hereby GRANTED.
SO ORDERED this 15th day of
June, 2001. 
DISTRIBUTION:
Phillip V. Frederick
Susan J. McCarty
STATE OF
INDIANA
IN THE PIKE CIRCUIT COURT
COUNTY OF
PIKE
2001 TERM
IN RE:
THE MATTER OF
PHILLIP V. FREDERICK,
Plaintiff
vs.
SUSAN J. McCARTY,
Defendant
CASE NO. 63C01-0001-CP-00009
MOTION to CORRECT ERROR
1. Comes now the Plaintiff, PHILLIP V. FREDERICK, representing himself, having received the court's order dismissing this cause (on June 23, 2001 - eight days after its issuance) and moves the court to correct error in that judgement of June 15, 2001, and says as follows:
Striking of "scandalous" Pleading Portions
2. The term "scandalous" implies negative truth. But, it is truth nonetheless. It is the Plaintiff's, as well as any citizen's, God-given right and God-demanded duty (reaffirmed under Amendment I, U.S. Constitution) to proclaim the truth, and to expect it to be recognized and considered in any proceedings (via the due process and equal treatment clauses of Amendments V and XIV of the U.S. Constitution, respectively). The negative truths of the related dissolution case (63C01-9704-DR-0062) are in the record, undeniable, and clearly do have bearing (pertinence) on this case, since the Defendant could have significantly limited the negative impact of them upon her client (Plaintiff). These negative truths have been stated repeatedly in the heretofore two appeals in that original dissolution case as well as the recently filed petition to transfer that latest appeal to the Indiana Supreme Court.
3. In paragraph 10 of said petition, Plaintiff has stated:
"28 U.S. Code § 1654 states 'In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.' Any intentional discrimination, by any judge, against a pro se litigant (whether by choice or forced to be so) is a violation of this Federal Statute (as well as Indiana Judicial Canons 3B(3) and (9)). If the rules of such courts are so restrictive as to assign bar-certified characteristics and abilities (such as 'due diligence') to pro se litigants, then those rules are clearly discriminatory to that class of citizens."
Additionally, the Plaintiff has never made any false statements to this, or any other, court. And, his truthful statements have never been with "reckless disregard" for the truth, rather targeting it, pertinently, toward the proper administration of justice within the case(s) at hand. The Plaintiff is not a bar-certified lawyer and simply cannot reasonably be held to the same standards (rules) of conduct (not listed in the above Federal Statute) and due diligence as licensed lawyers. As he stated, in early pleadings and the preliminary hearing (September 19, 2000), the nearest skilled, license attorney he could find to accept and pursue this case was in Indianapolis and at a fee much to high for the Plaintiff's then, and present, depressed economic state.
4. "Presumptions," are always trumped, superceded, by truth and fact. It has never been the Plaintiff's intent to anger or prejudice anyone or any entity against him, but to stop same from being directed at himself and thereby denying him his rightful expectation of justice and to rightfully and lawfully assert his civil rights therein related.
Statute of Limitations
5. Even given the court's highly
restrictive determination of the Plaintiff's claim accrual on January 15,
1998 (assigning a bar-certified lawyer's due diligence attribute to the
Plaintiff) (Order, para. 6), the claim was indeed filed within the statute
of limitations under Indiana Trial Rule 6(A). The Plaintiff stated this
both in his Response to Motion to Dismiss (filed August 11, 2000) and at
the preliminary hearing (of September 19, 2000). No known exemptions or
modifications to this Trial Rule are known to the Plaintiff to exist. The
Court has herein made a prima facie error.
6. WHEREFORE, the Plaintiff respectfully
prays the Court correct its error and reschedule this matter for jury trial,
render unto the Plaintiff all other relief just and proper in the premises
including an order stating the deficiencies in this document and leave
to amend it. Additionally, the Plaintiff requests the Honorable Lee Baker
(because the foregoing and the Dismissal Order depict a clear bias against
the Plaintiff as a pro se litigant, an asserter of his constitutional
rights, or both) either recuse himself from any and all future proceedings
involving the Plaintiff, Phillip V. Frederick, or show proof that His Honor
can, and will, proceed in an unbiased, unprejudiced fashion.
Respectfully submitted,
Phillip V. Frederick____________________
Phillip V. Frederick, Plaintiff Pro Se
VERIFICATION
I affirm, under the penalties for
perjury, that all foregoing statements of fact are true to the best of
my knowledge, information, and belief.
Phillip V. Frederick____________________
Phillip V. Frederick, Pro Se
CERTIFICATE of SERVICE
I hereby certify that the foregoing has been served upon the following person by First Class United States Mail, postage prepaid, this 16th day of July, 2001:
Ms. Susan J. McCarty
P.O. Box 45
403 W. Spruce St.
Princeton, IN
47670
Phillip V. Frederick____________________
Phillip V. Frederick, Plaintiff Pro Se
8385W Road 350N
Hazleton, IN 47640