Brief - Appellant (1).pdf 00000000000001

IN THE
INDIANA COURT OF APPEALS
Cause No. 21A-CT-02309
PASTOR MARIO SIMS, )
Plaintiff, )
)
v. ) CAUSE NO.: 71C01-2109-CT-342
)
PETE BUTTIGIEG, )
MIKE SCHMUL, )
TIM CORBETT, )
ST. JOSEPH COUNTY, BY THE )
BOARD OF COMMISSIONERS )
OF ST. JOSEPH COUNTY, )
INDIANA, CITY OF SOUTH )
BEND, INDIANA, )
STEPHANIE STEELE, as )
Corporation Counsel for the )
City of South Bend, )
TASHA REED OUTLAW, )
ANN-CAROL NASH, )
CRISTAL BRISCO, )
Defendants. )
_____________________________________________________________________________
APPELLANT'S BRIEF
_____________________________________________________________________________
Attorney Johnny W. Ulmer #2737371
Ulmer Law Offices
P.O. Box 866, Bristol, Indiana 46507-0866
401 W. Bristol Street, Elkhart, IN 46514
574-848-7600(W)
Attorney Richard Bryant, # 29568-20 Attorney Thomas F. Godfrey # 16722-
49 22356 Spicewood Drive P.O. Box 866
Goshen, Indiana 46528 Bristol, IN 46507
Telephone: (574) 903-7603 Telephone: (219) 221-2151
E-Mail: rbryant@attyrichbryant.com Fax: (574)-622-0037 E-Mail:
tgodfrey0919@gmail.com
Attorneys for Appellant
1
Filed: 3/22/2022 5:39 PM

Brief of Appellant Pastor Mario L. Sims
TABLE OF CONTENTS
TABLE OF AUTHORITIES........................................................................................4-5
STATEMENT OF THE ISSUES....................................................................................6
STATEMENT OF THE CASE........................................................................................7
STATEMENT OF FACTS.............................................................................................11
SUMMARY OF ARGUMENTS....................................................................................18
ARGUMENT.................................................................................................................19
I. The St. Joseph County Circuit Court failed to comply with the
Indiana Court of Appeals Memorandum Decision 20A-CT-2390
of April 14, 2021.......................................................................................19
II. After being Ordered by the Indiana Court of Appeals on
December 10, 2021 to clarify its Order of October 15, 2021, within 20,
but failed to do so, requiring the Indiana Court of Appeals to issue
another Order, ordering that court to comply, finally on February 18,
2022, the Circuit Court issued its Order again raised non existent
affirmative defenses of collateral estoppel and law of the case (this time
abandoning res judicata) when there has never been full and fair
opportunity to litigate the facts that have now been deemed admitted,
after the Court of Appeals had remanded the case in 20A-CT-2390 of
April 14, 2021, with instructions for the Plaintiff to comply with
Scopelitis, which on February 18, 2022 the trial court admitted he
had............................................................................................................19
III. The St. Joseph County Circuit Court failed to comply with
Indiana Trial Rule 8D which provides: Averments in pleading to which
responsive pleading is required, except those pertaining to amount of
damages are admitted when not denied in the responsive pleading....23
IV. The St. Joseph County Circuit Court became an advocate for a
party when it sua sponte issued an Order on October 15, 2021 based
2

upon a on nonexistent motion to dismiss, raising two affirmative
defenses for the defendants that had not entered an appearance, of re
judicata and collateral estoppel, only after the facts had been deemed
admitted by operation of law when the defendants failed to file any
appearance, inexplicibly more than a month after that Court conducted
its Scopelitis screening, citing two cause numbers 71D06- 2001-CT-24
and 50C01- 2002-CT-16, which were the subject of the Court of
Appeals previous ruling vacating the ruling in 50C01-2002-CT-16, and
remanding 71D06- 2001-CT-24 for the Plaintiff to comply with
Scopelitis..................................................................................................28
V. The St. Joseph County Circuit Court, in issuing two Orders,
October 15, 2021 and February 18, 2022, based upon a non existent
motion to dismiss, failed to comply with the St. Joseph County local
rules regarding motions to dismiss and Indiana Trial Rule 12,
et seq.........................................................................................................28
VI. In taking the acts above the St. Joseph County Circuit Court
violated numerous canons Indiana Code of Judicial Conduct...............30
CONCLUSION..............................................................................................................31
WORD COUNT CERTIFICATION..............................................................................32
CERTIFICATE OF SERVICE......................................................................................33
ATTACHMENTS: APPEALED ORDERS OF THE TRIAL COURT
DATED October 15, 2021 and February 18, 2022
3

TABLE OF AUTHORITIES
Cases page
A.N. v. K.G., 3 N.E.3d 989 (Ind. Ct. App. 2014), aff'd on reh'g...................................29
Ashe v. Swenson, 90 S.Ct. 1189 (1970)........................................................................20
Beatty v. State, 567 N.E.2d 1134 (Ind. 1991)..............................................................29
Bunch v. State, 760 N.E.2d 1163 (Ind.Ct.App.2002), trans. granted.........................26
In re Change to Established Water Level of Lake Woods in Marshall Cty. ,
822 N.E.2d 1032 (Ind. Ct. App. 2005)..........................................................................21
DePuy Orthopaedics, Inc. v. Brown, 29 N.E.3d 729 (Ind. 2015).................................19
Dreyer & Reinbold, Inc v. Autoxchange.com, INC.,
771 N.E.2d 764 (2002)...................................................................................................25
Dutchmen Mfg., Inc. v. Reynolds , 891 N.E.2d 1074
(Ind. Ct. App. 2008), trans. denied...............................................................................22
In the Matter of Edwards, 694 N.E.2d 701 (Ind. 1998)...............................................31
Gaeta v. Huntington Nat'l Bank, 164 N.E.3d 782 (Ind. App. 2021)..........................22
Keller v. State, 549 N.E.2d 372 (Ind. 1990).................................................................31
K.S. v. State, 114 N.E.3d 849 (Ind.Ct.App. 2018), trans. denied................................23
Skeffington v. Bush, 846 N.E.2d 761 (Ind. Ct. App ( 2006)..........................,.............23
Sullivan Builders & Design, Inc. v. Home Lumber of New Haven, Inc.,
834 N.E.2d 129 (Ind. Ct. App. 2005), trans. denied....................................................27
Think Tank Software Dev. Corp. v. Chester, Inc. , 30 N.E.3d 738
(Ind. Ct. App. 2015), trans. denied...............................................................................21
Wright v. Miller,989 N.E.2d 324 (Ind.2013)................................................................19
4

Other authorities:
Article 7, Section 4 of the Indiana Constitution..........................................................30
Canon 1 of the Code of Judicial Conduct.....................................................................30
Canon 2(A) of the Code of Judicial Conduct................................................................30
Indiana Admission and Discipline Rule 25..................................................................30
Indiana Rules of Trial, Rule 8, et seq...........................................................................23
Ind. Trial Rule 55 (A)....................................................................................................24
5

STATEMENT OF ISSUES
I. The trial court's findings of collateral estoppel law of the case
was erroneous and an abuse of its discretion as there has never been
an Order on the merits of the factual allegations presented in Cause
Number.: 71C01-2109-CT-342 , which were presented in the “Verified
Complaint at Law (filed pursuant to the Court of Appeals
Memorandum Decision 20A-CT-2390 of April 14, 2021 ),” and there has
never been full and fair opportunity to litigate those factual
allegations, have now been deemed admitted. Neither the record nor
the facts in Cause Number.: 71C01-2109-CT-342, supported its Order.
II. The trial court abused its discretion when it acted as an advocate
for a party when it acted upon a non existent motion to dismiss.
III. The trial court abused its discretion when it failed to comply
with Court of Appeals Memorandum Decision 20A-CT-2390 of April
14, 2021.
IV. The trial court abused its discretion when it failed to set a
hearing on the Plaintiff's Motion for default after the facts had been
deemed admitted by operation of law.
V. The St. Joseph County Circuit Court, in issuing two Orders,
October 15, 2021 and February 18, 2022, based upon non existent
motion to dismiss, failed to comply with the St. Joseph County local
rules regarding motions to dismiss and Indiana Trial Rule 12, et seq.
VI. In taking the acts above the St. Joseph County Circuit Court
violated numerous canons Indiana Code of Judicial Conduct.
6

STATEMENT OF THE CASE
Course of proceedings
Plaintiff Pastor Mario L. Sims (Sims) filed his “Verified Complaint at Law
(filed pursuant to the Court of Appeals Memorandum Decision 20A-CT-2390 of
April 14, 2021),” on September 6, 2021, naming Pete Buttigieg, Mike Schmul, Tim
Corbett, St. Joseph County, By and through the Board of Commissioners of St.
Joseph County, Indiana, City of South Bend, Indiana, Stephanie Steele, Tasha Reed
Outlaw, Ann-Carol Nash, Cristal Brisco, as defendants. (App. Vol. II, 18-45).
As required by the Court of Appeals Memorandum Decision 20A-CT-2390 of
April 14, 2021, simultaneously with the “Verified Complaint at Law” Plaintiff also
filed on September 6, 2021, his “ Plaintiff's Brief Directed Solely to the Court in
Support of His Verified Complaint at Law (Pursuant to the Court of Appeals
Memorandum Decision 20A-CT-2390 of April 14, 2021),” with attachments, showing
therein (App. II, 2-8):
I. The doctrines of res judicata, collateral estoppel, are not applicable to
the newly discovered facts in the Plaintiff's Verified Complaint.
II. Law of the case is not applicable.
III. The Defendants collectively, prevented the Plaintiff from discovering
the otherwise valid claims that had been actively concealed by the Defendants, and
IV. The allegations in the Plaintiff's Verified complaint showing violations
7

of state and federal constitutions, ethical violations and of commissions of crimes,
are not frivolous, not barred by the statute of limitations because of fraudulent
concealment and continuing wrong doctrines, and the Defendants had/have a
continuing duty.
After the mandatory Scopelitis screening was conducted by the trial court,
the case was docketed on September 6, 2021, under Cause Number.: 71C01-2109-
CT-342, which is the case on Appeal. (App. II, 2-8, 18-45).
Plaintiff served the complaint via USPS certified mail and filed green card
copies proving service on the record. (App. II, 2-8).
After more twenty three (23) days elapsed, and the Defendants failed to
appear, move to enlarge time, or file any motion or appearance, on October 8, 2021,
the Plaintiff filed his “Verified Motion for Entry of Default Pursuant to Trial Rule
55(A). (App. II, 46-47).
None of the 9 Defendants filed a opposing motion, moved to enlarge time to
respond or challenge service.1
On October 15, 2021, approximately thirty nine (39) days after this case was
filed, and after the trial court conducted its Scopelitis screening, without any filing
made on behalf of the Defendants, with no hearing being held of any type, and with
no motion before it, although the docket shows “Order of motion” (App. II, 2-8),
1 In fact the Defendants in their Response to (Appellant's) Motion to Strike Untimely Appearance filed herein,
admit they were aware of all of Sims' filings in the lower Court in Cause Number.: 71C01-2109-CT-342, which
is the case on Appeal. Sims moves this Court to take judicial notice of the aforementioned filings. (App. ).
8

the Trial Court, inexplicably, entered the following:
Order
“This Court has reviewed the Verified Complaint at Law filed in this cause
and having reviewed the rhetorical paragraphs of the Complaint, the Court FINDS
that it is redundant, duplicative, and substantively no different from Plaintiff Mario
Sims’ Verified Complaint with cause numbers 71D06- 2001-CT-24 and 50C01-2002-
CT-16. The Court FINDS that the Complaint as filed is subject to the doctrines of
res judicata and collateral estoppel. Therefore, this cause is ordered DISMISSED
with prejudice. It is therefore Ordered, Adjudged, and Decreed that this cause is
DISMISSED with prejudice” Dated: 10/15/2021
Hon. John E. Broden “ (App. II, 14).
On December 10, 2021, the Court of Appeals entered an Order directing the
trial court to clarify its Order of October 15, 2021 within twenty days, specifically
requesting it to clarify whether or not Sims complied with Scopelitis. (App. Vol. II,
51-52). After not responding to the Court of Appeals within 20 days, the Court of
Appeals again on February 7, 2022, entered an Order directing the trial court to
clarify its Order, within twenty days, specifically requesting it to clarify whether or
not Sims complied with Scopelitis. Finally more than 70 days after the original
Order to clarify was issued on December 10, 2021, the trial court complied with the
second Order issued on February 7, 2022, and on February 18, 2022, issued an
Order confirming that Sims had complied with Scopelitis (and the case was allowed
to be filed on September 6, 2021 ) but the collateral estoppel and law of the case now
required the court to dismiss the case (based on cause numbers 71D06- 2001-CT-24
and 50C01-2002-CT-1 which were both the subject of this Court's Memorandum
9

Decision 20A-CT-2390 Brief of Appellant Pastor Mario L. Sims of April 14, 2021,
vacating the ruling in 50C01-2002-CT-1 and remanding 71D06- 2001-CT-24 and
requiring Sims to comply with Scopelitis. (App. Vol. II, 51-52, 53-54)(App. Vol. II 15-
17):
Order
“The Court having reviewed the case of Sims v. Scopelitis, 797 N.E.2d 348,
352 (Ind. Ct. App. 2003) as well as Plaintiff’s Verified Complaint at Law and
attached Exhibits and Memorandum of Law now FINDS as follows: 1. Plaintiff’s
Verified Complaint at pages 26 and 27, titled “Plaintiff’s Verification of Compliance
with the Court of Appeals Memorandum Decision 20A-CT-2390 of April 14, 2021,
Pursuant to Indiana Rule 11B” includes the relevant text from the Scopelitis ruling
that this Court must consider in determining whether Plaintiff’s lawsuit may be
filed and proceed. 2. The Court FINDS that Plaintiff has complied with (1) in that
Plaintiff has provided this Court with a copy of the Complaint that he wishes to file.
Plaintiff has also complied with (2) in that this Court sees attached a list of 22
matters that appear to constitute a copy of all the relevant documents pertaining to
the ultimate disposition of each and every previous suit initiated by Plaintiff Sims
from the same Defendant or emanating, directly or indirectly, from any alleged
conspiracy by public officials. Plaintiff’s counsel have also submitted a legal brief
aimed at addressing why this new proposed cause of action should not be (3) subject
to dismissal under the doctrines of res judicata, collateral estoppel, or law of the
case. Further, Plaintiff Sims has complied with both (4) and (5) of Scopelitis in that
the proposed Complaint is Verified and, as previously stated, the final section of the
opinion is included. It thus falls to this Court to review Plaintiff’s Verified
Complaint at Law consisting of Eight Counts and rhetorical paragraphs and
determine whether the proposed Complaint is not subject to dismissal under the
doctrines of res judicata, collateral estoppel, or law of the case. 4. In reviewing the
Verified Complaint, the Court FINDS that the proposed Verified Complaint at Law
is barred by the doctrines of collateral estoppel and law of the case. The basic
gravamen of the Verified Complaint is the same- it sues a similar cast of
individuals- then Mayor Buttigieg, his Chief of Staff Mike Schmul, Tim Corbett, St.
Joseph County, the City of South Bend, and two former corporation counsel for the
City of South Bend, Cristal C. Brisco and Stephanie Steele. The Verified Complaint
goes on to allege a host of conspiracies across various levels of local government but
all centered on the actions of Defendant Corbett and the alleged fraudulent
concealment of evidence and retaliation against Plaintiff. In fact, the only real
10

“new” element as set out in the proposed Verified Complaint is the conduit of these
actions which is a local news anchor and a reported conversation that she allegedly
had with Defendant Corbett. 5. Thus, while Plaintiff’s Verified Complaint at Law
and supporting documents complies with multiple prongs of Scopelitis, ultimately
Plaintiff’s Verified Complaint is subject to Dismissal With Prejudice under the
doctrines of collateral estoppel and law of the case.
Thus, Plaintiff’s Verified Complaint at Law is DISMISSED with prejudice.
Dated: 2/18/2022 Hon. John E. Broden “(App. Vol. II 15-17).
STATEMENT OF FACTS
The underlying law suit
The statement of facts are the facts deemed admitted as presented in the
“Verified Complaint at Law (filed on September 6, 2021 pursuant to the Court of
Appeals Memorandum Decision 20A-CT-2390 of April 14, 2021 )” in Cause
Number.: 71C01-2109-CT-342. Further because the facts deemed admitted in the
complaint show res judicata, collateral estoppel and the law of the case do not apply
(and any affirmative defense is waived) the facts even admit to constitutional
violations (state and federal) crimes committed by a sworn law enforcement officer
and ethical violations for named attorney defendants. Those facts are as follows and
are taken verbatim from that filing are listed below :
1. In April of 2019, ABC21 News Anchor and Investigative Reporter and
now NBC UNIVERSAL MEDIA, LLC Reporter Alexis Rivas Shear,
contacted
2. Mario L. Sims, a Senior Pastor of Doulos Chapel, 608 South St. Joseph
Street, South Bend, Indiana by telephone and asked if she could come
11

to the church.
3. Shortly after her call she arrived at the church with a cameraman and
another Reporter.
4. Reporter Alexis Rivas Shear, disclosed Tim Corbett, who in 1994 was a
South Bend Police Officer, stated to her that he had planted evidence
in the State of Indiana vs. Mario L. Sims in 1994. She then recorded an
interview of Pastor Sims. The allegations describe a constitutional
violation: the infringement of the due process right to obtain
exculpatory evidence, in this case through the investigators’
concealment of that evidence. Moreover, at the time of these events,
this right was clearly established. At the time that Corbett acted to
suppress evidence of tampering and planting evidence, he was still a
police officer, and he was not acting in a prosecutorial capacity. It
was already clearly established as early as 1994 that police could not
withhold exculpatory information. See Jones v. City of Chicago, 856
F.2d 985 (7th Cir. 1988) (affirming award of damages against officers
who withheld exculpatory information in 1981).
5. While conducting the interview, she received a telephone call from her
station. After concluding the call, she advised Pastor Sims, that her
station executives had informed her based on Tim Corbett's admission
she is now a witness to a crime and to return to the station
12

immediately.
6. As she left, she advised Pastor Sims to hold off for at least a week
taking any public action as she wanted to discuss with her station
executives what they wanted her to do with the story.
Prior to coming to Doulos Chapel that day she also gave a verbal
statement to Elkhart Police Department Officer Davin Hackett,
regarding Tim Corbett's admission of planting evidence in Pastor Sims'
case, who in turn reported it to Internal Affairs at EPD, and also to
former South Bend Board of Public Safety President Pat Cotrell, who
is also a former South Bend Police Officer and to former South Bend
Police Officer and to City Councilman Derek Dieter.
7. After a week went by and not hearing from Reporter Alexis Rivas
Shear, Pastor Mario contacted her by phone. During that call she
stated she was afraid for her life.
8. Sims was aware that at least one law enforcement officer supervised
by Tim Corbett in his position as St. Joseph County Metro Homicide
Commander, had previously harassed former South Bend Reporter
Jacklyn Kelly to the point she was forced to leave town. Corbett also
encouraged his supporters to harass Pastor Sims causing him to file
several police reports with the Indiana State Police and St. Joseph
County Police.
13

9. Reporter Alexis Rivas Shear stated it was okay though for Pastor Sims
to act on what she had told him.
10.In September of 2019 Pastor Sims was made aware from an article by
The Young Turks that Mayor Pete Buttigieg, Mike Schmuhl, and the
City Legal Department were aware that Tim Corbett was a racist and
had bragged about planting evidence to gain convictions of black
defendants.
11.The Young Turks had obtained relevant discovery from the suit in
which the City of South Bend had paid $500,000.00 to Tim Corbett and
four others.
12. Pastor Sims, who had known he had not raped his wife and believed in
1994 before, during and after his criminal trial that Tim Corbett had
planted evidence and that Tim Corbett was a racist but could not prove
it previously until The Young Turks story in September of 2019 gave
physical evidence to support what News Reporter Alexis Rivas Shear
had said.
13. Pastor Sims has had no criminal record prior to Tim Corbett planting
evidence to gain and sustain his conviction in 1994 or at any time after
his release from prison in 2006.
14.As a result of the above, Pastor Sims has suffered financial loss,
14

incurred damage to his reputation and been publicly humiliated by
people identifying themselves as Pete Buttigieg supporters who at one
point boasted in a Facebook Post in 2016 caused the South Bend Police
to attempt to enter Doulos Chapel without a warrant claiming there
was a meth lab inside. There was no meth lab and Pastor Sims
suffered a stroke that day November 7, 2016.
15.People identifying themselves as Buttigieg supporters have threatened
to disrupt Doulos Chapel services and burn the church and have
actively interfered with efforts to raise funds for the church which
houses feeds and clothes the homeless, calling the Pastor a “rapist” and
creating online sites to dissuade the public from associating with him
and have filed false reports with the St. Joseph County Board of
Health regarding the church and other entities.
16.After Pastor Sims refused to agree to help the South Bend Police keep
the peace at then candidate Donald Trump's rally in South Bend in
2016 five City Inspectors showed up at Doulos Chapel for an
unannounced inspection, solely for the purposes of harassing Pastor
Sims, and only left after Pastor Sims contacted FOX28. The Reporter
determined all the inspectors found was a leaking roof.
15

17.At this time, it is difficult to determine the full extent of the damages
my/our client is seeking because of the outrageous conduct of the
named individuals.
18.Because of the 12- and 1/2-years Pastor Sims was totally innocent and
was wrongly incarcerated after Tim Corbett planted evidence in his
case and the numerous and continuous efforts to frustrate his ability to
gather evidence needed to overturn his conviction that has since 2012
been in the hands of those named above.
19.To shore up the false case against Pastor Sims, Tim Corbett fabricated
evidence.
20.Based on the force of the fabricated evidence by Tim Corbett, Plaintiff
was charged, prosecuted, and convicted of rape, burglary, and criminal
deviant conduct.
21.He was sentenced to 27 years in prison.
22.Never giving up on proving his innocence, Pastor Sims worked
tirelessly to show that he had absolutely nothing to do with this crime,
including making Access to Public Records Request to the South Bend
City legal department.
23.Mrs. Karen DePaepe disclosed to South Bend City legal department at
16

their request, Pete Buttigieg, Mike Schmul as then Mayor Buttigieg's
Chief of Staff, City of South Bend City Legal staff, Stephanie Steele,
Tasha Reed Outlaw, Cristal Briscoe (“ City Legal”), were aware that
Corbett was racist and had planted evidence to gain convictions of
black defendants from their positions and responsibilities in the City
legal department, discovery in the tape case and from direct questions
they asked Karen DePaepe about the tapes contents, all in violation of
Indiana Code 35-44.1-2-2, Obstruction of justice, with Mike Schmul
threatening Mrs. DePaepe not to disclose that Corbett was racist and
had set up black defendants and Buttigieg lying to
cover up his knowledge from Schmul and City Legal of Corbett's
racism and planting evidence.
24. Pastor Sims, because of the disclosures made in September 2019 by
the Young Turks article and Mrs. Karen DePaepe's WUBS FM radio
interview in December 2019, that Mrs. DePaepe had informed Schmul,
and the City legal staff members of Corbett planting evidence and
being racist, Pastor Sims learned after Mrs. DePaepe's interview, he
was not the first—nor the last person—that would be the victim of
Corbett planting evidence as law enforcement officers that worked
with Corbett and individuals that he had arrested, heard him use the
word nigger, and knew him to be
17

racist. Corbett has even committed perjury by denying under oath he
worked on Pastor Sims criminal case to conceal his role in planting
evidence.
25. This action is brought pursuant to Article 1, Section 12 of the Indiana
Constitution to redress Defendants’ deprivation of Plaintiff’s
guaranteed due course of law rights secured by the Indiana
Constitution.
SUMMARY OF THE ARGUMENTS
The trial court clearly has abused its discretion.
18

ARGUMENTS
Standard of Review
“[W}e presume that the trial court will ‘act in accord with what is fair and
equitable in each case,’ and thus we will only reverse ‘if the trial court's decision is
clearly against the logic and effect of the facts and circumstances before the court,
or if the trial court has misinterpreted the law.’ ” Wright v. Miller,989 N.E.2d 324,
330 (Ind.2013) (citing McCullough v. Archbold Ladder Co.,605 N.E.2d 175, 180
(Ind.1993). See DePuy Orthopaedics, Inc. v. Brown, 29 N.E.3d 729, 732 (Ind. 2015)
I. The St. Joseph County Circuit Court failed to comply with the
Indiana Court of Appeals Memorandum Decision 20A-CT-2390 of April
14, 2021
and;
II. The doctrines of collateral estoppel and law of the case do not bar
this action
I. The Indiana Court of Appeals Memorandum Decision 20A-CT-2390 of April
14, 2021, states in its relevant portion: “Our order in Scopelitis, however, is not a
complete ban; Sims may file claims related to the 1995 convictions so long as he
complies with its requirements.”
In its Order of February 18, 2022, clarifying its Order of October 15, 2021, the
trial court confirmed that in fact Sims complied with Scopelitis. Its two dismissal
Orders do not comply with the Indiana Court of Appeals Memorandum Decision
20A-CT-2390 of April 14, 2021.
19

Sims complied with Scopelitis and the trial court was required to allow the
case to proceed. The trial court abused its discretion as the decision is clearly
against the logic and effects of the facts and circumstances. “We reverse only for an
abuse of discretion-that is, a decision that is "clearly against the logic and effect of
the facts and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom."K.S. v. State, 114 N.E.3d 849, 854 (Ind.Ct.App.
2018), trans. denied. “An abuse of discretion occurs when the trial court s decision is
‟
or where the trial court has misinterpreted the law.” Skeffington v. Bush, 846
N.E.2d 761, 762-63 (Ind. Ct. App. 2006).
II. In the trial court's Order clarifying In its “Order” of October 15, 2021,
the trial court bottomed its Order on two case Cause numbers 71D06- 2001-CT-24
and 50C01-2002-CT-16. 2
The court, based upon the two cause numbers then found
the Complaint as filed is subject to the doctrines of res judicata and collateral
estoppel.
Collateral estoppel, also known as issue-preclusion, provides that “when an
issue of ultimate fact has once been determined by a valid and final judgment, that
issue cannot again be litigated between the same parties in any future lawsuit.”
Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).
2 The trial court initially included res judicata in support of its October 15, 20221 Order, but in its Order clarifying
it abandoned res judicata instead its Order was bottomed on the doctrines of collateral estoppel and law of the
case. None of which act to bar this suit.
20

The law-of-the-case doctrine mandates that an appellate court's
determination of a legal issue is binding both on the trial court on remand and on
the appellate court on a subsequent appeal, given the same case with substantially
the same facts. Collateral estoppel operates to bar re litigation of an issue where
that issue was necessarily adjudicated in a former action and the same issue is
presented in a subsequent action. The law of the case doctrine provides that an
appellate court's determination of a legal issue binds the trial court and the
appellate court in any subsequent appeal involving the same case and substantially
the same facts. Think Tank Software Dev. Corp. v. Chester, Inc. , 30 N.E.3d 738,
744 (Ind. Ct. App. 2015), trans. denied. The purpose of the doctrine is to minimize
unnecessary repeated litigation of legal issues once they have been resolved by an
appellate court . Id. The doctrine is based upon the sound policy that once an issue
is litigated and decided, that should be the end of the matter. Id. at 744-45. To
invoke the doctrine, the matters decided in the earlier appeal must clearly appear to
be the only possible construction of a decision. Id. at 745. "Accordingly, under the
law-of-the-case doctrine, re litigation is barred for all issues decided ‘directly or by
implication in a prior decision. " In re Change to Established Water Level of Lake
Woods in Marshall Cty. , 822 N.E.2d 1032, 1042 (Ind. Ct. App. 2005) (quoting
Certain Northeast Annexation Area Landowners v. City of Fort Wayne , 622 N.E.2d
548, 549 (Ind. Ct. App. 1993), reh'g denied , trans. denied ), trans. denied. Thus,
questions not conclusively decided in the earlier appeal do not become the law of the
21

case. Dutchmen Mfg., Inc. v. Reynolds , 891 N.E.2d 1074, 1083 (Ind. Ct. App. 2008),
trans. denied. Gaeta v. Huntington Nat'l Bank, 164 N.E.3d 782, 786-87 (Ind. App.
2021)
There is no indication that the facts within the complaint were conclusively
decided on appeal and there was never a full and fair opportunity to litigate the
issues presented by Sims' complaint in the two case Cause numbers 71D06- 2001-
CT-24 and 50C01-2002-CT-16 the trial court cited.
In fact the Indiana Court of Appeals Memorandum Decision 20A-CT-2390 of
April 14, 2021, states in its relevant portion: “Our order in Scopelitis, however, is
not a complete ban.” states in its relevant portion: “Our order in Scopelitis, however,
is not a complete ban; Sims may file claims related to the 1995 convictions so long
as he complies with its requirements.”
In its Order of February 18, 2022, clarifying its Order of October 15, 2021, the
trial court confirmed that in fact Sims complied with Scopelitis, but determined
collateral estoppel and law of the case barred this suit. The two Cause numbers
71D06- 2001-CT-24 and 50C01-2002-CT-16 relied upon by the trial court to find
collateral estoppel and law of the case in fact do not show there was ever a full and
fair opportunity to litigate the issues presented by Sims' complaint in the two case
Cause numbers 71D06- 2001-CT-24 and 50C01-2002-CT-16. In fact both of the case
numbers were addressed by the Indiana Court of Appeals in its Memorandum
Decision 20A-CT-2390 of April 14, 2021, affirming in part and reversing in part.
22

The trial court abused its discretion as the decision is clearly against the logic
and effects of the facts and circumstances. “We reverse only for an abuse of
discretion-that is, a decision that is "clearly against the logic and effect of the facts
and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom." K.S. v. State, 114 N.E.3d 849, 854 (Ind.Ct.App.
2018), trans. denied. “An abuse of discretion occurs when the trial court s decision
‟
is clearly against the logic and effect of the facts and circumstances before the court,
N.E.2d 761, 762-63 (Ind. Ct. App. 2006).
III. The St. Joseph County Circuit Court failed to comply with Indiana
Trial Rule 8D which provides: Averments in pleading to which
responsive pleading is required, except those pertaining to amount of
damages. are admitted when not denied in the responsive pleading.
Sims filed his Verified Complaint at Law (filed pursuant to the Court of
Appeals Memorandum Decision 20A-CT-2390 of April 14, 2021 ) on September 6,
2021. After the mandated Scopelitis screening by the Court, it was assigned in
Cause Number.: 71C01-2109-CT-342. ( ).
Summons for all named defendants were filed September 6, 2021 and served
via certified mail using the United States Postal Service. ( ).
After none of the Defendants moved to enlarge time, or file an answer or
counter claim or Rule 12 motion, Sims filed his Verified Motion for Entry of Default
23

on October 8, 2021 pursuant to Ind. Trial Rule 55 provides: (A) Entry . When a
party against whom a judgment for affirmative relief is sought has failed to plead or
otherwise comply with these rules and that fact is made to appear by affidavit or
otherwise, the party may be defaulted.
Trial Rule 8 states in its relevant portion to this matter reads as follows:
As amended through December 28, 2021 Rule 8 - General Rules of
Pleading(A) Claims for Relief. To state a claim for relief, whether an original claim,
counterclaim, cross-claim, or third-party claim, a pleading must contain:(1) a short
and plain statement of the claim showing that the pleader is entitled to relief,
and(2) a demand for relief to which the pleader deems entitled. Relief in the
alternative or of several different types may be demanded. However, in any
complaint seeking damages for personal injury or death, or seeking punitive
damages, no dollar amount or figure shall be included in the demand.(B) Defenses:
Form of denials. A responsive pleading shall state in short and plain terms the
pleader's defenses to each claim asserted and shall admit or controvert the
averments set forth in the preceding pleading. If in goodfaith the pleader intends to
deny all the averments in the preceding pleading, he may do so by general denial
subject to the provisions of Rule 11. If he does not intend a general denial, he may:
(1) specifically deny designated averments or paragraphs; or(2) generally deny all
averments except such designated averments and paragraphs as he expressly
admits.If he lacks knowledge or information sufficient to form a belief as to the
truth of an averment, he shall so state and his statement shall be considered a
denial. If in good faith a pleader intends to deny only a part or a qualification of an
averment, he shall specify so much of it as is true and material and deny the
remainder. All denials shall fairly meet the substance of the averments denied. This
rule shall have no application to uncontested actions for divorce, or to answers
required to be filed by clerks or guardians ad litem. Affirmative defenses. A
responsive pleading shall set forth affirmatively and carry the burden of proving:
accord and satisfaction, arbitration and award, discharge in bankruptcy, duress,
estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches,
license, payment, release, res judicata, statute of frauds, statute of limitations,
waiver, lack of jurisdiction over the subject-matter, lack of jurisdiction over the
person, improper venue, insufficiency of process or service of process, the same
action pending in another state court of this state, and any other matter
constituting an avoidance, matter of abatement, or affirmative defense. A party
required to affirmatively plead any matters, including matters formerly required to
be pleaded affirmatively by reply, shall have the burden of proving such matters.
The burden of proof imposed by this or any other provision of these rules is subject
to the rules of evidence or any statute fixing a different rule. If the pleading
24

mistakenly designates a defense as a counterclaim or a counterclaim as a defense,
the court shall treat the pleading as if there had been a proper designation.
(D) Effect of failure to deny. Averments in a pleading to which a responsive
pleading is required, except those pertaining to amount of damages, are admitted
when not denied in the responsive pleading. Averments in a pleading to which no
responsive pleading is required or permitted shall be taken as denied or avoided.”
Not only does the record disclose none of the Defendants took any action to
deny the allegations in 27 page Verified Complaint at Law. In Dreyer & Reinbold,
we stressed that our holding was based on the plain language of Trial Rule 8(D) and
that "we do not condone untimely filing and failure to comply with the trial rules[.]"
A responsive pleading required under the Indiana Trial Rules must be "served
within twenty [20] days after service of the prior pleading." T.R.8(C). The party
entirely failed to file a responsive pleading, rather than where the party responded
but in an untimely manner. See Venture Enterprises, 669 N.E.2d at 1031
(concluding that because the promisee filed no response to the promisor's
counterclaim, all matters alleged therein were deemed admitted pursuant to T.R.
8(D); Hudson, 641 N.E.2d at 44 (determining that the effect of McClaskey's failure
to file any answer to Hudson's counterclaim was that the averments of the
counterclaim were deemed admitted according to T.R.8(D); Hansford, 621 N.E.2d
at 356 (determining that T.R.8(D) applied where the opposing party failed to file
any response to Hansford's counterclaim and, thus, the trial court erred in allowing
the opposing party to enter a general denial at trial); Commercial Credit Corp., 151
Ind. App. at 585, 280 N.E.2d at 860 (holding that Commercial Credit Corporation's
25

failure to answer the opposing party's counterclaim invoked T.R.8(D) and, therefore,
the averments of the counterclaim were deemed admitted).” Dreyer & Reinbold, Inc.
v. Autoxchange.com.,Inc., 771 N.E.2d 764 (2002).
In fact the Defendants' counsel,3
in his: “ Response to Appellant's Motion to
Strike “ filed herein 11/21/2021 states in paragraph #2:
“Although Defendants were aware of the filing...” (App. Vol. II 48-50 ). In
addition to the facts being deemed admitted, the Defendants knowingly waived any
affirmative defenses. See Bunch v. State, 760 N.E.2d 1163, 1168 (Ind.Ct.App.2002),
trans. granted. “Our Supreme Court granted transfer and distinguished between
two concepts, both of which have been referred to as “waiver.” According to the
Court, the first type of “waiver” is that found in Indiana Trial Rule 8(C), which
requires a party to plead certain affirmative defenses, including waiver, or forfeit
them. Bunch, 778 N.E.2d at 1287. In contrast, the Court stated that the other type
of “waiver” is a “doctrine of judicial administration whereby appellate courts may
sua sponte find an issue foreclosed under a variety of circumstances in which a
party has failed to take the necessary steps to preserve the issue.” Id. The Court
stated that this latter type of “waiver” is more properly referred to as “procedural
default” or “forfeiture.” Id. In Bunch, the Court stated that the type of waiver
before them was of the “procedural
3 Defendants counsel in this filing alludes to extra judicial knowledge regarding the Scopelitis requirement not
met. A fact that does not appear on any court record, and in fact the Court's clarification Order shows was not
correct.
26

default” variety. Id. at 1288.
“With respect to affirmative defenses, Indiana Trial Rule 8(C) provides that
[a] responsive pleading shall set forth affirmatively and carry the burden of proving:
accord and satisfaction, arbitration and award, discharge in bankruptcy, duress,
estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches,
license, payment, release, res judicata, statute of frauds, statute of limitations,
waiver, lack of jurisdiction over the subject-matter, lack of jurisdiction over the
person, improper venue, insufficiency of process or service of process, the same
action pending in another state court of this state, and any other matter
constituting an avoidance, matter of abatement, or affirmative defense. A party
required to affirmatively plead any matters, including matters formerly required to
be pleaded affirmatively by reply, shall have the burden of proving such matters.”
“Our courts have generally held that the failure to raise an affirmative
defense in a pleading results in waiver of the issue. See Sullivan Builders & Design,
Inc. v. Home Lumber of New Haven, Inc., 834 N.E.2d 129, 136 (Ind. Ct. App. 2005),
trans. denied.
The Defendants cannot now attempt to argue any defense either on appeal or
in the trial court as they have deemed admitted the facts in the and have
admittedly waived any defenses.
The trial court abused its discretion as the decision is clearly against the logic
and effects of the facts and circumstances. “We reverse only for an abuse of
discretion-that is, a decision that is "clearly against the logic and effect of the facts
and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom."K.S. v. State, 114 N.E.3d 849, 854 (Ind.Ct.App.
2018), trans. denied. “An abuse of discretion occurs when the trial court s decision is
‟
27

N.E.2d 761, 762-63 (Ind. Ct. App.( 2006).
IV. The St. Joseph County Circuit Court became an advocate for a party
when it sua sponte issued an Order on October 15, 2021 based upon a on
nonexistent motion to dismiss, raising two affirmative defenses for the defendants
that had not entered an appearance, of res judicata and collateral estoppel, only
after the facts had been deemed admitted by operation of law when the defendants
failed to file any appearance, inexplicibly more than a month after that Court
conducted its Scopelitis screening, citing to two cause numbers 71D06- 2001-CT-24
and 50C01- 2002-CT-16, which were the subject of the Court of Appeals previous
ruling vacating the ruling in 50C01-2002-CT-16, and remanding 71D06- 2001-CT-
24 for the Plaintiff to comply with Scopelitis,
and;
V. The St. Joseph County Circuit Court, in issuing two Orders, October
15, 2021 and February 18, 2022, based upon non existent motion to dismiss, failed
to comply with the St. Joseph County local rules regarding motions to dismiss and
Indiana Trial Rule 12, et seq.
After conducting the Scopelitis screening, on September 6, 2021, which was
required prior to Sims' complaint being filed and also required the court to
determine if he had met the requirements, including if res judicata, collateral
estoppel, law of the case barred the filing, the Court allowed the complaint to be
filed.
As shown by the record for review on appeal as shown above, only after Sims
had served the complaint, filed on the record receipts proving service of the
summons and complaint and filed a motion for default did the court after none of
the 9 defendants appeared answered, or moved to enlarge time or file a Rule 12
28

motion (as shown above the 9 defendants counsel admits they were aware of the
complaint in time to respond but chose not to do) did the trial court, acting as an
advocate for the defendants, dismiss the case citing the dismissal was in response to
a “motion” that in fact does not exist on the record and was never served upon Sims'
counsels, dismissed the case, initially for res judicata and collateral estoppel, then
in response to two Court of Appeals Orders to clarify, abandoning res judicata and
later bottomed its dismissal on (non existent) collateral estoppel and law of the case
theories which as shown above does bar this case from proceeding as those theories
do not apply to this matter. The trial court hastily threw together a defense for the
defendants when one did not exist. “ At all times the trial court " ‘must maintain an
impartial manner and refrain from acting as an advocate for either party.” Beatty v.
State, 567 N.E.2d 1134, 1136 (Ind. 1991) ). "A violation of due process occurs where
a trial judge combines the roles of judge and advocate." A.N. v. K.G., 3 N.E.3d 989,
995 (Ind. Ct. App. 2014), aff'd on reh'g.
Here the court clearly became an advocate for the defendants, violating Sims
due process rights requiring this court to reverse the trial courts orders.
29

VI. In taking the acts above the St. Joseph County Circuit Court violated
numerous canons Indiana Code of Judicial Conduct.
There were many troubling acts taken by the trial court, as shown above,
that violate judicial canons. From conducting the Scopelitis screening allowing the
case to proceed, then only after Sims filed his motion for default, determining the
defendants had/would file no defense, acted twice (original Order of October 15,
2021 and Order of February 18, 2022 to clarify) to dismiss the case based on a non
existent motion based on non existent theories of collateral estoppel and law of the
case.
The trial court even was in contempt of the Court of Appeals by failing to
respond within twenty days as Ordered on December 10, 2021, requiring this Court
to take the extraordinary step of ordering the court again to respond on February 4,
2022. (App. Vol. II, 51-52, 53,54). This Court has jurisdiction pursuant to Article 7,
Section 4 of the Indiana Constitution and Indiana Admission and Discipline Rule
25.
The above acts violated Canon 1 of the Code of Judicial Conduct, which
generally requires a judge to uphold the integrity and independence of the judiciary
and Canon 2(A), which generally requires judges to avoid impropriety and the
appearance of impropriety and to conduct themselves at all times in a manner
promoting public confidence in the integrity and impartiality of the judiciary.
30

Code of Judicial Conduct provision stating that a judge shall disqualify himself or
herself in a proceeding in which the judge's impartiality might reasonably be
questioned. In the Matter of Edwards, 694 N.E.2d 701, 707-08 (Ind. 1998)
“Holding that a court which must search the record and make up its own
arguments because a party has presented them in perfunctory form runs the risk of
being an advocate rather than an adjudicator.” Keller v. State, 549 N.E.2d 372 (Ind.
1990)
The Orders of the trial court must be reversed for further hearing by an
impartial judge.
CONCLUSION
For the reasons explained more thoroughly above, Sims respectfully requests
that this Court reverse the trial court’s Orders and remand this case with
instructions to grant Sims' Motion for Default so this matter can be set for a
hearing on damages, and for any further relief deemed just and proper.
31

Respectfully submitted;
/s/Johnny W. Ulmer
Johnny W. Ulmer #2737371
Ulmer Law Office, Inc. PO Box 866
Bristol, Indiana 46507
Telephone: (574) 848-7600
/s/Thomas F. Godfrey
Thomas F. Godfrey #1672249
3 Bristol Drive
Michigan City, IN 46360
Telephone: (219)-221-2151
/s/ Richard Bryant
Richard Bryant #29568-20
22356 Spicewood Drive
P.O. Box 866
Goshen, Indiana 46528
Telephone: (574) 903-7603
E-Mail: rbryant@attyrichbryant.com
WORD COUNT CERTIFICATE
“We verify that this brief contains no more than 14,000 words, and we verify that
this brief contains 7,813 words.”
Respectfully submitted;
/s/Johnny W. Ulmer
Johnny W. Ulmer #2737371
Thomas F. Godfrey #1672249
/s/ Richard Bryant
Richard Bryant #29568-20
32

CERTIFICATE OF FILING AND SERVICE
The undersigned hereby certifies that we electronically filed the foregoing
document using the Indiana E-filing system (IEFS) and a true and correct copy of
the APPELLANT'S BRIEF, ( with appealed Orders filed seperately), was served
via IEFS upon , James Groves (jimfgroves@aol.com) and Bree Tuttle
(bltuttle@lgzlegal.com)this 22nd day of March, 2022.
/s/Johnny W. Ulmer
Johnny W. Ulmer
Thomas F. Godfrey
/s/ Richard Bryant
Richard Bryant
33

Brief - Appellant (1).pdf 00000000000001

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