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I. STATEMENT OF ISSUES
1. Whether the Trial Court erred when entering Summary Judgment in favor
Defendant-Village at Eagle Creek Home Owners Association (VECHOA) when genuine issues
of material fact existed pursuant to Ind. TR 56. App. pp. 52.
Further, Trial Court Special Judge Sherry K. Reid and Appellee/Defendant, VECHOA’s
counsel violated Indiana Rules of Professional Conduct. Trial Court Special Judge Reid granted
the summary judgment in false pretense and the Appellee/Defendant, VECHOA’s counsel
misrepresented that this Appealed Trial Court Case is an extension of the Appellant/Plaintiff’s
Appeals from Small Claims Court Case. App. pp. 68 thru 104.
a. Trial Court’s Order granting Summary Judgment in false pretense for the
Defendant-VECHOA. In the Order, the Trial Court stated that the all parties were
notified, appeared by counsel, heard oral arguments and submitted evidence.
Appellee/Defendant-VEC HOA’s counsels and the Judge Sherry K. Reid
lied and signed the order granting summary judgment for the Appellee-VEC
HOA. There was no notification of the hearing date to the Appellant therefore,
there was no appearance, no oral arguments, no evidence submitted. The Trial
Court issued the Order granting the summary judgment for the Appellee on May
12, 2011 before the scheduled the hearing on May 16, 2011. Pre-trial hearing was
held on May 16, 2011 with the CHUBB Insurance only. App. pp. 52, 118.
b. Subsequently, Appellants/Plaintiffs’ Exhibits (photos and document lists)
for each claim of the damaged property were ignored. The EXHIBIT LISTS were
ignored and never had chance to be presented in the Court. App. pp. 13 thru 51.
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c. Appellee/Defendant-VECHOA’s entire Designation of Evidence
Supporting Motion for Summary Judgment, paragraph A thru K was presented
under false pretence as shown as follow: App. pp. 83.
(1) Plaintiff’s Respond to Defendant’s TR 12(e) Motion to Make Clear
Pleading. App. pp. 88. The Appellee/Defendant use the
Appellants/Plaintiffs’ Respond only supports the Appellant’s cause for this
Appealed Trial Court Case. It proves the Appellant case’s merit and
genuine issues left pursuant to Ind. TR 56 which the Trial Court erred
when granting summary judgment in favor of the Appellee/Defendant.
(Reference: State of Issues paragraph 1. a, b, c, 4.)
(2) Affidavit of Becky Cruse. App. pp. 97. Becky Cruse is property
manager of the Appellee/Defendant-VECHOA. In her affidavit, she did
not mention anything about the Appellant’s property damage which is the
core of this Appealed Trial Court Case. Her affidavit consists of only a
true copy of the VECHOA’s Bylaws. App. pp. 97. The Appellant does
not have any disagreement of the bylaws and do not have any issue with
the bylaws. The Appellant’s lawsuit arises from proximate and ultimate
causes of damages to her own condo unit. App. pp. 13 thru 51.
(3) Appellee/Defendant-VECHOA by counsel of Designation of
Evidence Supporting Motion for Summary Judgment paragraph C thru K
is taken from the Pike/Perry SCC (Small Claims Court) Case which has
nothing to do with this Appealed Trial Court Case. Appellee/Defendant,
VECHOA counsel deliberately misled the Trial Court by stating that this
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Appealed Trial Court Case is an extension from the Case in the Perry
Small Claims Court (SCC). Appeal from Small Claims Court Cause No.
49K04-1009-SC-03527 is not a duplicate claim but a stand alone lawsuit
from this Appealed Trial Court Case. The Perry SCC case’s initial
Defendants were Shannon Lampsa & Kyle Love. When the
Appellants/Plaintiffs received a copy of VECHOA’s CHUBB Insurance
Policy, the Appellants/Plaintiffs amended the Perry SCC lawsuit to sue
the new Defendant, VECHOA. App. pp. 68 thru 80. The Trial Court must
deal with the Appeal from the Small Claims Court Case separately but
instead denied the case as moot. App. pp. 68 thru 82. Chronological Case
Summary of the Appeals from SCC will show exactly what went on. App.
pp. 81.
2. Whether the Trial Court erred when granting motion to dismiss in favor of
Defendant-CHUBB Insurance Company’s because Appellant/Plaintiff failed to state a claim
upon which relief can be granted pursuant to Ind. TR 12(B)(6). App. pp. 54.
3. Trial Court erred when applying the procedures to the appointment of Special
Judge-Sherry K. Reid pursuant to Ind. TR 79. App. pp. 62.
4. This Trial Court Case was set for jury trial by the Honorable Judge David A.
Shaheed. Jury Trail was requested by both Appellants/Plaintiffs and Appellee/Defendant. The
Special Judge Reid overturned the prior proceedings as soon as she took over this Trial Court
case and dismissed the case without a jury trial. App. pp. 56 thru 63.
5. Trial Court Special Judge Sherry K. Reid erred when ordering the Appellants to
make clear statement as to the Complaint. App. pp. 13, 64, 88.
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6. Trial Court Special Judge Reid did not rule/ignored/denied as moot the following:
a. Appeal from the Small Claims Court is not a duplicate claim and is
independent from this Appealed Trial Court Case. Whether the
Appellants/Plaintiffs can sue the new Defendant-VECHOA for the remaining
claimed amount on a case which already won a court judgment for partial claim
amount from the initial Defendants, Shannon Lampsa & Kyle Love. App. pp. 68
thru 82.
b. Appellants/Plaintiffs filed Petition for hearing on Judicial Notice of party
or parties to be sued pursuant to Ind. TR 201/17(B). App. pp. 66.
c. Appellants/Plaintiffs filed Requested expense pursuant to Ind. TR 36,
37(A)(4). App. pp. 66.
d. Appellants/Plaintiffs issued/filed Subpoena Duces Tecums against
VECHOA and CHUBB Insurance Company. App. pp. 107, 108.
7. Whether the undisputed evidences indicate that as a matter of law and/or merit,
either VECHOA, CHUBB Insurance, Owner of building 4250 upper unit 6 or any entity acting
on their behalf, proximately and ultimately caused the damages claimed by the
Appellants/Plaintiffs.
8. Appellants/Plaintiffs should be paid for punitive damages from
Appellee/Defendant, VECHOA for years of discrimination, fraud, nuisance and neglect for
property damage claims in the Complaint. Paragraph I, II, III, IV, 14. App. pp. 16 thru 23.
Appellees/Defendants-VECHOA and CHUBB Insurance conspired to discriminate, defraud and
neglect the Appellants/Plaintiffs’ property damage claims. The Appellants/Plaintiffs should be
paid for punitive damage for Claim I. App. pp. 16.
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9. Besides actual and punitive damage claims, the Appellants/Plaintiffs’ expenses
should be paid. Expenses include: direct costs and indirect cost-equivalent to attorney fees.
II. STATEMENT OF CASE
This case arises over the last 6 years from recurring proximate and ultimate causes of
damages by water and toilet-excrement or sewer from the upper level condominium unit and/or
leaking from the roof to the Appellants/Plaintiffs’ ceilings, walls, carpet (excrement/toilet water
was discharged through the ceiling’s fire alarm hole) and vandalism to the vehicles, exterior of
unit door and screen doors of the Appellants/Plaintiffs Kay Kim, Pro Se and Charles Chuang’s,
Pro Se ground floor condominium unit. App. pp. 13 thru 51.
To date all claimed damages in the Appellants/Plaintiffs’ Complaint have not fixed and
the Appellants/Plaintiffs are still living in the condo unit with the claimed damages. The
Appellants/Plaintiffs attempted to be claim the damages from the Appellees/Defendants,
VECHOA and CHUBB Insurance Company. App. pp. 25 thru 33.
On November 10, 2010, Appellants/Plaintiffs, Kay Kim, Pro Se and Charles Chuang, Pro
Se filed a Complaint for damages and Requested Jury Trial. This case was assigned to Civil
Superior Court D01 under the honorable Judge David A. Shaheed. App. pp. 13.
A Notice of Appointment of Special Judge Reid was given On January 19, 2011. App.
pp. 62. The Appointment of Special Judge Sherry K. Reid violated the administrative
procedures by not complying to Ind.TR 79(D)(E)(F) before appointment.
Trial Court Special Judge Sherry K. Reid ignored/overturned all the previous
proceedings. This Appealed Trial Court Case was set for jury trial on December 08, 2010 by the
Honorable Judge David A. Shaheed. Both the Defendant-VECHOA and the Appellant/Plaintiff
requested for a jury trial. App. pp. 115. Special Judge Reid ignored all previous proceedings.
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On January 24, 2011 this Appealed Trial Court Case was transferred to Special Judge
Sherry K. Reid, Special Judge Reid. Judge Reid erred when she ordered (her 1st order of
business) the Appellants/Plaintiffs to file clear statement as to the Appellants/Plaintiffs’
Complaints pursuant to Ind.TR 12(e). App. pp. 64.
Trial Court denied as moot the following Appellants/Plaintiffs’ motions: App. pp. 66
thru 82.
- Appellants/Plaintiffs filed Petition for hearing on Judicial Notice of
party or parties to be sued pursuant to Ind. TR 201/17(B). App. pp.
66.
- Requested expense pursuant to Ind. TR 36, 37(A)(4). App. pp. 66.
- Appeals from Small Claims Court. App. pp. 68 thru 82.
- Subpoena Duces Tecums against the Defendants-VECHOA and CHUBB
Insurance Company. App. pp. 107, 108.
On May 12, 2011, Special Judge Sherry K. Reid granted Summary Judgment in favor of
the movant-Appellee/Defendant, VECHOA. App. pp. 3, 13. Trial Court erred when granting
Summary Judgment for the movant- Appellee/Defendant, VECHOA. This Summary Judgment
for the Appellee/Defendant, VECHOA was not in pursuant to Ind.TR 56 and ordered under false
pretense. App. pp. 52.
On May 16, 2011, Special Judge Sherry K. Reid erred when dismissing the movant-
Appellee/Defendant, CHUBB Insurance Company. Special Judge Reid stated that the
Appellants/Plaintiffs failed to state the claim which the court can be granted pursuant to Ind. TR
12(B)(6). App. pp. 54.
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On May 16, 2011 Special Judge Sherry K. Reid in her final judgment denied as moot all
outstanding motions of the Appellants/Plaintiffs. App. pp. 66 thru 82, 107, 108. (See
STATEMENT OF ISSUE paragraph 5. a, b, c, d.)
On June 6, 2011, Appellants/Plaintiffs filed the Joint Notice of Appeal. App. pp. 1.
III. STATEMENT OF FACTS
1. Appellants/Plaintiffs moved into Village at Eagle Creek Condominium (VEC) in
1999. Since then, we have paid our monthly association fees up to date. VECHOA is obligated
to purchase umbrella insurance for civil and criminal damages for the condominium on behalf of
all the owners. App. pp. 43, 105.
2. Appellants/Plaintiffs’ real property damages claims are pursuant to Indiana’s Six-
year Statute of Limitations “Actions for injuries to property other than personal property...”,
IC § 34-11-2-7(3).
3. The Appellants/Plaintiffs is not disputing that each condominium owner shall be
responsible at his/her own expense for the maintenance, repairs and replacement of all interior
and personal property for normal wear and tear.
4. This appealed Trial Court Case is for recurring damages to Appellants/Plaintiffs’
ground floor condo unit by proximate and ultimate causes from above either immediate upper
level unit, upper sewer connection, upper water connection &/or roof over the last 6 years. All
the Appellants/Plaintiffs’ property damages in the Appealed Trial Court Case are caused by other
person &/or outer sources/elements from above Appellants/Plaintiffs’ unit.
5. Appellants/Plaintiffs filed the Complaint against Appellees/Defendants-VECHOA
& CHUBB Insurance in year 2010 for the first time since the day the Appellants/Plaintiffs
moved into condominium in 1999. App. pp. 13.
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The Appellants/Plaintiffs’ Complaint, Claim I, III & IV property damage claims were
filed in this Appealed Trial Court in year 2010. App. pp. 16 thru 20, 25 thru 33.
The Appellants/Plaintiffs’ Complaint, Claim II of property damages claims were filed in
year 2006 against the Defendants who was Appellants/Plaintiffs’ immediate upper level of
condominium owners. This Claim II Court Case against the condo owners was dismissed
pursuant to Ind. TR 12(B)(6) by the Honorable Judge Cale J. Bradford in 2006. App. pp. 121.
Appellants/Plaintiffs brought Claim II against the new Defendant-VECHOA in 2010 in this
Appealed Trial Court Case.
Claim II is the only lawsuit filed for same property damage claims with different/new
Defendant-VECHOA. Claim 1, III and IV property damage claims’ lawsuit in this Appealed
Trial Court Case were filed for the first time against the Defendants. All other Claims in the
Complaint of this Trial Court were also filed for the first time against the Defendants. However,
the Appellants/Plaintiffs did not bring owners of immediate upper level in the lawsuit because of
the Court Dismissal of Claim II in 2006 and the receipt VECHOA’s umbrella insurance. The
Appellants/Plaintiffs filed for the Trial Court Judge to take judicial notice for party or parties to
be sued pursuant to TR 201/17(B). The Trial Court Special Judge ignored/denied the filing as
moot.
In year 2006 Defendant-owner of building 4250 unit 6, Chelsey Rasmussen & Tom Gusta
admitted that Claim II (the property damages to the patio furniture and water coming down to
Plaintiff’s unit through fire alarm hole) in the Complaint was their tenant’s faults. The Plaintiff
and the owners-building 4250 unit 6, Chelsey Rasmussen & Tom Gusta agreed to settle the case
$350 for the property damages to the patio furniture by excrement (Tenant allowed the dog to
pee and poop on the balcony.) App. pp. 120. At that time, there was no damage claim for the
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soiled carpet because the water coming down from the unit above appeared to be clean. There is
no excrement stain on the top of the carpet and the Defendant did not inform the Plaintiff
otherwise. However, a few days later, the Appellants/Plaintiffs the water leaking from above
was from the toilet when the carpet was cut and flipped over. App. pp. 121. The soiled carpet
must be replaced because of health hazard. Due to financial difficulty the soiled carpet has not
been replaced. In year 2006 Defendants-Chelsey Rasmussen & Tom Gusta, owner of building
4250 unit 6 admitted that there was a toilet over flow in the 2nd bathroom and in light of the
Plaintiff’s complaint on the carpet excrement stain, Defendant,-Chelsey Rasmussen filed a claim
against their own insurance company - American Family. American Family Insurance denied the
claim. App. pp. 113,114. Eventually in 2006 the Plaintiff, Kay Kim, Pro Se filed a lawsuit
against Defendants-Chelsey Rasmussen & Tom Gusta. The case was dismissed by the Honorable
Judge Cale J. Bradford. On the day of hearing the Judge said: “12(B)(6)! You are welcome to
appeal!”
Ind. TR 12(B)(6), “Failure to state a claim upon which relief can be granted, which shall include failure to name the real party...”
The Appellants/Plaintiffs filed a lawsuit on the same case (2006) against the new
Defendant-VECHOA in this Appealed Trial Court in year 2010. Claim II of this Appealed Trial
Court Case was dismissed by the Trial Court Special Judge Reid who granted Summary
Judgment for the new Defendant-VECHOA in pursuant to Ind. TR 56 under false pretense.
6. Claim I of the property damages in the Appellants/Plaintiffs’ Complaint in
this Appealed Trial Court Case was initially filed claim against VECHOA’s CHUBB Insurance.
App. pp. 41. The Appellants/Plaintiffs’ claimed damages for excrement stain on the master
bathroom ceiling, moisture on the master bathroom wall and water/excrement stain in the master
bedroom ceiling. App. pp. 26, 29, 30.
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On September 29, 2010, Appellees/Defendants ,VECHOA-Becky Cruse, property
manager and CHUBB Insurance Co.-Kimberlyn J. Twiehaus, adjuster came to the
Appellants/Plaintiffs’ condominium building 4250 unit 2 to assess the damages. The Adjuster
took a few measurements of the master bathroom and master bedroom walls. She did not bring a
moisture detector, which can detect moisture/damage above the ceiling and behind the wall.
The CHUBB Insurance Adjuster deliberately came without the very basic and most important
tool-moisture detector. The Appellants/Plaintiffs offered to cut open the ceilings and the walls,
but the adjuster replied: “We don’t work that way.” As they were leaving the unit,
Appellants/Plaintiffs asked for a rough estimate of the damage. The Adjuster said, “it’s about
$3,000.” On September 30, 2010, the Appellants/Plaintiffs, Kay Kim, Pro Se was told over the
phone by CHUBB Insurance’ Adjuster, Kimberlyn J. Twiehaus and her Supervisor, Sandra
Vanmill that they will be closing Appellants/Plaintiffs, Kay Kim’s claim file because there is no
damage and will not issue a written report.
Claim III in the Complaint of the property damages were the dining room and living
room ceilings & the wall. A couple years back, the Appellants/Plaintiffs noticed that the ceiling
dripping a few millimeters and the seams of the ceiling’s drywall are coming apart. App. pp. 27,
28.
Claim IV in the Complaint of the property numerous vandals on vehicles, exterior of unit
door, window screens. App. pp. 31 thru 33.
7. Whenever there were property damages which occurred by other(s) &/or outer
source-proximate & ultimate appeared on the Appellants/Plaintiffs’ ceilings and the walls,
immediate upper level current owner of building 4250 unit 6 -Shannon Lampsa & Kyle Love and
VECHOA denied of any responsibility. Since Claim II in the Complaint in this Appealed Trial
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Court Case against the immediate upper level previous owner of building 4250 unit 6-Chelsey
Rasmussen &Tom Gusta were dismissed by Judge Cale J. Bradford, immediate upper level
current owner of building 4250 unit 6 and VECHOA conspired to bully and intimidate the
Appellants/Plaintiffs.
8. Appellants/Plaintiffs’ vehicles, unit door (outside), window screens damages
occurred many times over the years and the damages are not random occurrence. App. pp. 31
thru 33. VECHOA intensified the hostile environment whenever the Appellants/Plaintiffs asked
to be compensated for the property damages (inside unit). The Appellant/Plaintiff have
constantly been discriminated, intimidated, harassed by the VECHOA Board of Directors,
property managements, owners/residents of building 4250. The Appellants/Plaintiffs were told
to move out by the VECHOA President, Bryan Wheatfield and VECHOA maintenance man.
The VECHOA property manager told the Appellants/Plaintiffs that she will make their life very
miserable if they do not move out of the condominium. Various emails from the VECHOA
show their discrimination, intimidation, fraud and neglect towards the Appellants/Plaintiffs:
“... will not be placing a Security camera... there was nothing wrong with your door.... The front
door of your unit is your responsibility...”. App. pp. 34. “...VEC HOA will not be firing Becky
or Gene over the issue...”. App. pp. 35. “...You can demand all you wish...It is not a VECHOA
issue it is a private issue.” . App. pp. 36. “The leak that is coming into your bathroom from the
upstairs unit is not the responsibility of the VECHOA..., ...Since the Love’s have not responded
to your request and the threat of lawsuit did not work, you are now threatening the VECHOA
with the same action. This is clearly a dispute between two Owners. If you choose to involve
the VECHOA in any legal litigation, we will respond to recover any Legal cost that we incur in
this frivolous matter.”. App. pp. 37. “It is your responsibility to determine the cause of the
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damage...”. App. pp. 38. “Once you determine what is the cause..., ...If you file a lawsuit, you
still need to prove who is at fault...Please call someone to look at your damages and determine
the cause.”. App. pp. 39. “If I send the insurance adjuster out to your unit, they will want you to
determine the cause of the leak. I will send the adjuster out...”. App. pp. 40. “Have you ever
thought of moving to a place where you’d feel more comfortable?...”. App. pp. 112. The
VECHOA boards and management often ignore and do not response to any request from the
Appellants/Plaintiffs.
9. The Appellant/Plaintiff openly accuse the VECHOA Board of Directors and
management for embezzling the VECHOA funds, but the Appellee/defendant-VECHOA never
defend themselves and choose to remain silent on the subject matter. VECHOA does not sue the
Appellants/Plaintiffs for the accusation for fear of exposing the truth. VECHOA Board of
Directors and the management ignored the bylaws and embezzled the funds openly. The
VECHOA is obligated under the bylaws to provide accounting details of all transactions to all
owners. App. pp. 106(f)(g)(h). The Appellants/Plaintiffs received VECHOA’s financial audit by
CPA (Certified Public Accountant) once a year. All the CPA’s reports contain one common
statement: “...We have not audited or reviewed the accompanying financial statements, and
accordingly, do not express an opinion or any other form of assurance on them. Management
has elected to omit substantially all of the disclosures... Accordingly, these financial statements
are not designed for those who are not informed about such matters.” App. pp. 109. “...We just
commissioned a full audit from a certified public accountant... I can’t believe how you can find
malfeasance where the accountant couldn’t. I don’t understand why you don’t just leave all your
miseries behind and simply move away from here...” App. pp. 112.
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VECHOA boards and management openly embezzle millions from the condo funds
contrary to its bylaws. Under Section 3.05(a)(f)(g)(h)(i) the VECHOA Boards must provide and
issue detailed financial statement to all owners. The Trial Court should not ignore/deny as moot
issue of Subpoena Duces Tecum to the Defendant/Appellee-VECHOA & CHUBB Insurance.
App. pp. 107, 108. The VECHOA claimed that they have never paid any “property damage
claims” to any of the 200 home owners is not true. With the reply from the Subpoena Duces
Tecum the Appellants/Plaintiffs can prove that there were payments made to other home owners’
property damage claims-civil and criminal. It will also show that the VECHOA discriminate,
defraud, and neglect the Appellants/Plaintiffs property damage claims. App. pp. 105, 106.
10. Appeals from the Small Claims Court’s initial Defendants were the owner of
upper level unit 6 - Shannon Lampsa & Kyle Love. Perry SCC Judge Robert S. Spear granted
the Plaintiff’s petition to dismiss the case without prejudice and attach it to this Appealed Trial
Court Case. App. pp. 68 thru 81. The counsel(s) of the Appellee/Defendant-VECHOA
intentionally misrepresented in their designation of evidence supporting motion for summary
judgment that the Appeals from the Small Claims Court was a duplicate claim and a continuation
of this Appealed Trial Court Case. App. pp. 83 thru 87. The Counsels of Appellee/Defendant-
VECHOA’s have violated the Indiana Rules of Professional Conduct with the intentional false
statements.
The Appellants/Plaintiffs initially sued the Defendants-Shannon Lampsa & Kyle Love,
owner of upper level unit 6 in the Pike SCC. The case was transferred to Perry SCC where the
Appellants/Plaintiffs won the Judgment for 1/3 of the claimed amount. When the
Appellants/Plaintiffs was given the VECHOA umbrella insurance information, the
Appellants/Plaintiffs sued the new Defendant-VECHOA to recover the remaining 2/3 of the
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claimed amount. This appealed Small Claims Court Case is not a duplicate claim and is
independent from this Appealed Trial Court Case. Trial Court Special Judge Sherry K. Reid
ignored/denied as moot this claim.
For the reason(s) presented above, the Plaintiff, Kay Kim, Pro Se requested the Perry
SCC to dismiss the case so that it can be attached to an ongoing case in the State Civil
Superior Court /this appealed Trial Court Case. The Perry SCC granted the Plaintiff’s petition.
App. pp. 74.
11. Claim II in this Appealed Trial Court Case’ Complaint which was dismissed by
Judge Cale J. Bradford in 2006. While the Appellant/Plaintiff was pursuing the lawsuit in 2006,
Plaintiff, Kay Kim, Pro Se was jailed for trespassing in the City/County Building. The Criminal
Case was subsequently dismissed in 2009. The Appellant/Plaintiff, Kay Kim, Pro Se filed the
lawsuit in year 2008 against the Judge Sosin, Magistrate Judge, and the Court Staff (which is the
original court of the lawsuit which Judge Bradford’s dismissed in 2006) in the Federal District
Court. This Federal lawsuit is still ongoing as of today.
12. The court does not give any leniency on the procedure of the Court or the Law
just because the Appellants/Plaintiffs are pro Se. On the contrary everyone (including the
judges) involves in the Appellants/Plaintiffs case(s) often gang up (even to the extent of breaking
the law) to dismiss my-Plaintiff case. The Appellant/Plaintiff have to work 2 to 3 times harder
than all the lawyers combined so the Appellants/Plaintiffs should be paid all expenses and
equivalent lawyer’s fees for this lawsuit.
IV. SUMMARY OF ARGUMENT
Trial Court Special Judge Sherry K. Reid erred when granting Summary Judgment for the
movant, Defendant/Appellee-VECHOA stating that no genuine issue of material fact exists. Trial
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Court Special Judge Sherry K. Reid Order for Summary Judgment was issued under false
pretense. Special Judge Reid’s Order granting the Summary Judgment is erroneous and not
supported by the Ind. TR 56.
Special Judge Reid erred when granting Motion to Dismiss for the Appellee-CHUBB
Insurance Company under Ind. TR 12(B)(6) stating that the Appellants/Plaintiffs failed to state a
claim upon which relief can be granted. Appellants/Plaintiffs have stated a detailed (item by
item, line by line and dollar amount claimed) damages in the Complaint. The
Appellants/Plaintiffs also stated the request for relief in detail in the Complaint. A Claim is
legally actionable wherever and whenever there is a presence of damage(s) to the properties
exists due to proximate and ultimate causes.
Special Judge Sherry K. Reid ignored/overturned the prior proceeding by the Judge
Shaheed and acted like the head of the Defendants/Appellees. This Appealed Trial Court Case
was already set for jury trial by Honorable Judge David A. Shaheed after the Appellee/Defendant
requested for jury trial. A few days later for reason(s) unbeknown to the Appellants/Plaintiffs,
this case was transferred to Civil Superior Court 14 under Special Judge Sherry K. Reid without
the proper procedure pursuant to Ind. TR 79. When Special Judge Reid took over the case, her
1st order of business was to order the Appellants/Plaintiffs to file/make a clear statement as to the
Complaint. The Appellants/Plaintiffs Complaint was properly filed pursuant to Ind. TR 3.
If Appellants/Plaintiffs’ property damages were occurred because of normal wear and
tear, the Appellees/Defendants does not have any responsibility to compensate the
Appellants/Plaintiffs. The Appellees/Defendants are responsible for the Appllants/Plaintiffs’
property damages when the damages arise from recurring proximate and ultimate causes of
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damages by water and toilet-excrement or sewer from other person &/or source(s)-upper level
condominium unit and/or leaking from the roof to the Appellants/Plaintiffs’ ceilings, walls,
carpet (excrement/toilet water was discharged through the ceiling’ fire alarm hole) and
vandalism to the vehicles, exterior of unit door and screen doors of the Appellants/Plaintiffs’
ground floor condominium unit over the last 6 years.
V. ARGUMENT
A. STANDARD OF REVIEW – Indiana Trial Rule 56.
Trial Court Special Judge Sherry K. Reid erred when granting Summary Judgment in
favor of Appellee/Defendant-VECHOA because there is no genuine issue of material facts left
under Ind. TR 56. There are sufficient evidences in the Claim to establish that there are genuine
issues as to material facts to survive the Summary Judgment. The issue would best be
determined by a jury.
The standard of review on the entry of judgment granting summary relief is de novo.
Kluver v. Weatherford Hosp. Auth., 1993 OK 85, 859 p.2d 1081, 1084. Indiana Trial Rule 56,
specified that Summary Judgment is only appropriate if the pleadings and evidence submitted
demonstrate there are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law, Ind. TR 56(C). “examine the pleadings and evidentiary materials
submitted by the parties to determine if there is a genuine issue of material fact and view the
facts and all reasonable inferences arising therefrom in the light most favorable to the non-
moving party.” Carmichael v. Beller, 1996 OK 48, 914 P.2d 1051, 1053. A dispute about a
material fact is “genuine” only if it cannot be foreclosed by reference to undisputed facts and is
such that a reasonable jury could return a verdict for the non-moving party. Welda v. Dowden,
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664 N.E.2d 742, 747 (Ind. Ct. App. 1996). The Appellants/Plaintiffs are confident that a
reasonable jury will return a verdict for the nonmoving party-Appellants/Plaintiffs.
Indiana Trial Rule 56(E) Form of affidavits—Further testimony—Defense required. Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein, Ind. TR 56(E).
All pleadings, affidavits, and designated evidence are construed liberally and in the light
most favorable to the non-moving party. May v. Franhiger, 716 N.E.2d 591, 594 (Ind.App.
1999). Summary Judgment is appropriate when the pleadings, affidavits, depositions,
admissions or other evidentiary materials show there is no substantial controversy as to any
material fact and one party is entitled to judgment as a matter of law. Tucker v. ADG, Inc., 2004
OK 72, 102 P.3d 660, 665. For summary judgment purposes, a fact is “material” if it bears on
ultimate resolution of relevant issues. Yin v. Soc’y Nat’l Bank Ind., 665 N.E.2d 58, 64 (Ind.
App.1996), trans. denied. “Any doubt as to the existence of an issue of material fact, or an
inference to be drawn from the facts, must be resolved in favor of the non-moving party.” Am.
Mgmt., Inc. v. MIF Realty, L.P., 666 N.E.2d 424, 428 (Ind. App. 1996). Where material facts
conflict, or undisputed facts lead to conflicting inferences, summary judgment should not be
granted, even if the judge feels the plaintiff will not succeed at trial. Wilson v. Royal Motor
Sales, Inc., 812 N.E.2d 133, 135 (Ind. App. 2004); see also Gen. Housewares Corp. v. Nat’l
Sur.Corp., 741 N.E.2d 408, 412 (Ind. App. 2000) (“On appeal, we must carefully scrutinize an
entry of summary judgment to ensure that the non-prevailing party is not denied his or her day in
court.”). “proceeds from the premise that summary judgment is a lethal weapon and that courts
must be ever mindful of its aims and targets and beware of overkill in its use.” PSI Energy, Inc.
v. Home Ins. Co., 801 N.E.2d 705, 713 (Ind. App. 2004)(quoting Bunch v. Tiwari, 711 N.e.2d
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844, 847 (Ind. App. 1999)). “Even when basic facts are undisputed, motions for summary
judgment should be denied if, under the evidence, reasonable persons might reach different
inferences or conclusions from the undisputed facts.” Bird v. Coleman, 1997 OK 44, 939 P.2d
1123, 1127.
1. Order of Summary Judgment done under false pretense.
Trial Court’s Order granting Summary Judgment for the Defendant-VECHOA was issued
under false pretence. In the Order, the Trial Court misstated that the all parties were notified,
appeared by counsel, heard oral arguments and submitted evidence. There were no appearance
by counsel, no oral arguments and no evidence submitted before May 12, 2011, when the Order
of Summary Judgment was issued. The only hearing for the Case was held on May 16, 2011.
App. pp. 52,118.
2. Plaintiff’s Exhibit Lists and Photos.
Trial Court’s Order granted Summary Judgment under false pretense for the Defendant-
VECHOA. In the Order, the Trial Court statement that the all parties were notified, appeared by
counsel, heard oral arguments and submitted evidence was falsely presented when the Order for
Summary Judgment was issued on May 12, 2011. App. pp. 52,118. As a result the
Appellants/Plaintiffs’ Exhibits (photos and document lists for each claimed) for damaged
property of in the Complaint and EXHIBIT LISTS were ignored and never allowed to be
presented to the Court. App. pp. 13 thru 51.
Ind. TR 56(C), “...there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law... the court shall
make its determination from the evidentiary matter designated to the court”.
3. Appellee/Defendants’s misrepresentation and insufficient designation of evidence to support motion for summary judgment.
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The entire Designation of Evidence Supporting Motion for Summary Judgment,
paragraph A thru K by the Appellee/Defendant-VECHOA was done under false pretence and/or
not supported by Ind. TR 56 as shown below: App. pp. 83.
a. Appellants/Plaintiffs’ Complaint satisfies Indiana Trial Rule 3.
Plaintiff’s Respond to Defendant’s TR 12(e) Motion to Make Clear
Pleading. App. pp. 88. Appellee/Defendant’s frivolous use of
Appellants/Plaintiffs’ Respond only supported the Appellants/Plaintiffs cause for
this appealed Trial Court Case and strengthen the Appellants/Plaintiffs case that
there are genuine issues left in pursuant to Ind. TR 56 and the Trial Court erred
when granting summary judgment in favor of the Appellee/Defendant.
(Reference: State of Issues paragraph 1. a,b,c, 4.)
Trial Court Special Judge Sherry K. Reid erred when ordering the
Appellants/Plaintiffs to make clear statement as to the Complaint. App. pp. 64.
Appellants/Plaintiffs’ Complaint was filed in pursuant to Indiana Trial Rule 3.
Commencement of an action as a Complaint is not a pleading or document. “A
civil action is commenced by filing with the court a complaint or such equivalent
pleading or document as may be specified by statute, by payment of the
prescribed filing fee...”, Ind. TR 3. Trial Court Special Judge Sherry K. Reid
thereby erred when ordering the Appellants/Plaintiffs to make clear statement as
to the Complaint. App. pp.13, 64, 88.
b. Absence of key witness/Defendant/Appellee’s affidavit of Kimberlyn J. Twiehaus, CHUBB Insurance adjuster and absence of the
subject matter of this Trial Court case that the witness/Defendant/Appellee’s VECHOA property manager Becky Cruse is insufficient evidence to
support summary judgment.
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Affidavit of Becky Cruse. App. pp. 97. Becky Cruse is property manager
of the Appellee/Defendant-VECHOA. In her affidavit, she did not mention
anything about the Appellants/Plaintiffs’ property damage which is the core of the
Appealed Trial Court Case. Her affidavit contains only a true copy of the entire
VECHOA Bylaws as an exhibit. Her affidavit is thus very unprofessional and
misleading. The Appellants/Plaintiffs do not have any issue with the VECHOA
bylaws and there is no reason or need to attach the entire book of bylaws as
exhibit. If there is an issue with the bylaws in the Appealed Trial Court Case only
the relevant paragraphs or pages pertaining to the Case need to attached. The
Appellee/Defendant-VECHOA does not better thing to present to the Trial Court
except dumping the entire book of bylaws as supporting evidence.
Appellee/Defendant-VECHOA property manager, Becky Cruse’s affidavit
is useless because she did not deny or admit whether there was property damage
when she and Appellee/Defendant - CHUBB Insurance adjuster, Kimberlyn J.
Twiehaus were in the Appellants/Plaintiffs’ unit to assess the damages. App. pp.
98. The Appellants/Plaintiffs’ property damage is the core matter in this
Appealed Trial Court Case. Appellee/Defendant-VECHOA property manager,
Becky Cruse did not deny any Appellants/Plaintiffs’ property damage. The
absence of an affidavit from the Appellee/Defendant - CHUBB Insurance
adjuster, Kimberlyn J. Twiehaus only strengthen the Appellants/Plaintiffs’
property damage claims. The Appellants/Plaintiffs does not have any
disagreement with the bylaws and does not dispute the validity of the copy of the
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bylaws. The Appellants/Plaintiffs even agree that any damage due to normal wear
and tear is responsibility of the each unit owner.
c. Appellant’s lawsuit arises from proximate and ultimate causes of damages to the own condominium unit and not from normal wear and tear.
Appellant’s lawsuit arises from proximate and ultimate causes of damages
to the own condominium unit and not own use of normal wear and tear.
App. pp. 13 thru 51.
Ind. TR 56(E), “...Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein...”.
The Appellee/Defendant VECHOA’s property manager - Becky Cruse and
Appellee/Defendant CHUBB Insurance Adjuster - Kimberlyn J. Twiehaus came
to the Appellants/Plaintiffs condo unit to assess the claimed damages. There is no
affidavit from the Appellee/Defendant-CHUBB Insurance adjuster Kimberlyn J.
Twiehaus. The only affidavit from Appellee/Defendant VECHOA property
manager -Becky Cruse, did not state any relevant issue to the Appellants/Plaintiffs
property damage claims. It did not state whether there was/were any property
damage(s). App. pp. 97.
d. Appellants/Plaintiffs’ Appeals from Small Claims Court is independent and not a duplicate from this Trial Court. Defendant’s counsels misrepresented that the Small Claims Court Case is the sameas the Appealed Trial Court Case.
Paragraph C thru K in the Appellee/Defendant-VECHOA counsel
Designation of Evidence Supporting Motion for Summary Judgment is taken
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directly from the Pike/Perry SCC Case which is independent and has nothing to
do with this Appealed Trial Court Case. Appellee/Defendant, VECHOA counsel
misleads the Trial Court by misstating that this Appealed Trial Court Case is an
extension from the Perry Small Claims Court (SCC). App. pp. 83. Appeals from
the Small Claims Court Case is not a duplicate claim and is not related to this
Appealed Trial Court Case. Appeals from Small Claims Court case was filed in
Pike SCC on April 21, 2009 and transferred to Perry SCC on July 27, 2009. App.
pp. 71, 72.
Initial Defendants to the SCC Case were Shannon Lampsa & Kyle Love.
App. pp. 72, 73, 79, 122. The Appellants/Plaintiffs later amended the Complaint
and paid $13.00 to bring new Defendant-VECHOA. App. pp. 74, 81.
The Appellants/Plaintiffs’ final amendment on January 05, 2011 was to
claim the remaining $2,000 balance from the new Defendant-VECHOA for the
original Pike SCC suit’s claim of $2, 726.82. The Appellants/Plaintiffs have
already won the Case from initial Defendant-Shannon Lampsa & Kyle Love on
September 29, 2009. App. pp. 72-74, 79.
In this Appealed Trial Court Case, the Appellee/Defendant’s counsels
knowingly misrepresented that this Appealed Trial Court Case was an extension
to the appeals from Perry Small Claims Court and that Perry SCC Judge Robert S.
Spear tried and dismissed the case. App. pp. 83.
The Chronological Case Summary of the Small Claims Court Case is self
explanatory. It only contained a list of continuations. App. pp. 79 thru 82.
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The reason for the numerous continuations was because no Defendants show up
until the last day of dismissal of the case on January 05, 2011. App. pp. 81. When
the Plaintiff filed for default judgment, the Court was silent on the matter. The
Court instead “continued” the case with its own motion on behalf of the
Defendant(s). App. pp. 81.
The Perry Small Claims Court Honorable Judge Robert S. Spear granted
the Appellants/Plaintiffs’ petition to dismiss the case without prejudice and
attached the case to this Appealed Trial Court Case. App. pp. 74.
Therefore, Defendants’ counsel should not bring any subject matter
prior to the amendment. Appellants/Plaintiffs’ Amended Complaint supersedes
any prior Complaint. Appellee/Defendant-VECHOA’s counsels violated Indiana
professional conduct:
Ind. PC 8.4. “It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so
through the acts of another;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that
violate the Rules of Professional Conduct or other law;
(f) Knowingly assist a judge or judicial official in conduct that is a violation of applicable rules of judicial conduct or other
law.”
Ind. TR 15 “... a party may amend... shall be given when justice so requires.”
Fed. RCP R.15 provides that leave to amend pleadings “shall be freely given when justice so requires.”
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“[t]he lengthy nature of litigation, without any other evidence of prejudice to the defendants or bad faith on the part of the plaintiffs, does not
justify denying the plaintiffs the opportunity to amend their complaint”. Bryant v. Dupree, 11th Circuit Court.
The purpose of Summary Judgment is to “assess the proof in order to see whether there is
a genuine need for trial.” Matsushita Elec. Indus. Co. v. Zenith RadioCorp., 475 U.S. 574, 587
(1986). If a material fact relevant to the outcome of the case at issue is in dispute, summary
judgment cannot be granted. McComb v. Memory Gardens Management Corp., 813 F.Supp. 663
(N.C. Ind. 1992). The inquiry on summary judgment boils down to whether a rational trier of
fact could reasonably find for the party opposing the motion with respect to the particular issue
raise. Vitug v. Multistate Tax Comm’n., 88 F.3d 506, 512 (7th Cir. 1996). In doing so, the court
will not weight the credibility of witnesses or evidence because evaluating credibility, weighing
evidence, and reaching factual inferences are only within the province of the jury. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Rather, the court’s role is limited to assessing
whether a genuine issue of material fact exists, thereby creating the need for trial. Anderson, 477
U.S. at 255. The moving party must illustrate for the court that there is an absence of evidence in
support of the non-moving party’s claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). The court must likewise draw all reasonable inferences and resolve all disputed
facts in favor of the non-moving party. Solon v. Kaplan, 398 F.3d 629, 631 (7th Cir. 2005).
Additionally, the plaintiff’s version of the facts is presumed to be correct and is accepted to be
true. Rush v. McDonald’s Corp., 966 F.2d 1104, 1107 (7th Cir. 1992). The plaintiff is entitled to
any benefit of doubt in all summary judgment inquiries. Santiago v. Lane, 894 F.2d 218, 224 (7th
Cir. 1990).
B. STANDARD OF REVIEW – Indiana Trial Rule 12(B)(6).
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Trial Court Special Judge Sherry K. Reid erred when dismissing CHUBB Insurance that
the Plaintiff is “Failure to state a claim upon which relief can be granted...”, under Ind. TR 12(B)
(6).
“The Trial Court erred in entering a judgment dismissing the complaint. Because TR 12(B)
allows a party an absolute right to amend a pleading when a motion to dismiss for failure to state
a Claim Is sustained...” Gregory & Appel, Inc. v. Duck, 459 N.E.2d 46, 49 (Ind. Ct. App. 1984).
A motion for judgment on the pleadings should be granted only when it is clear from the face of
the complaint that under no circumstances could relief be granted. Nat’l R.R. Passenger Corp. v.
Everton by Everton, 665 N.E.2d 360, 363 (Ind. Ct. App. 1995), trans. denied (1996).
On May 16, 2011 at the hearing, Special Judge Sherry K. Reid erred when dismissing for
the movant-Appellee/Defendant, CHUBB Insurance Company that Appellants/Plaintiffs failed to
state the claim which the court can be granted pursuant to 12(B)(6). App. pp. 54.
1. Appellees/Defendants-CHUBB Insurance’ Adjuster, Kimberlyn J. Twiehaus and
VECHOA’s property manager, Becky Cruse came to Appellants/Plaintiffs’ condominium unit
for claimed damages assessment. When assessing water damage an insurance adjuster must have
a moisture detector to detect damage above the ceiling or behind the walls. The Adjuster did not
bring a moisture detector on the day of assessment. The Appellants/Plaintiffs offered to open the
damaged areas but she said, “we don’t work that way.” She took a few measurement of the
damaged areas-master bathroom and master bedroom. As CHUBB Insurance adjuster,
Kimberlyn J. Twiehaus walked away and she said, “The damage is about $3,000.00 .” The next
day, Appellants/Plaintiffs was told by the Adjuster, Kimberlyn J. Twiehaus and her Supervisor,
Sandra Vanmill that they will close Appellants/Plaintiffs, Kay Kim’s claim because there is no
damage and will not issue a written report. Furthermore, they told Appellants/Plaintiffs that they
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have obligation to the VECHOA and not to the Appellants/Plaintiffs. CHUBB Insurance and
VECHOA conspired to lie about the Appellants/Plaintiffs’ damages. VECHOA’s yearly tax free
revenue is about $400,000.00 from over 200 units. Any insurance company almost will do
whatever it takes to have VECHOA’s business. In this Trial Court case, CHUBB Insurance’
Adjuster, Kimberlyn J. Twiehaus did not provide affidavit of any kind. Instead, CHUBB
Insurance mislead/lied to the Trial Court that the Appellants/Plaintiffs’ damages are due to the
Appellants/Plaintiffs’ faults and that they are not responsible. CHUBB Insurance admitted their
guilt of fraud and negligence/gross negligence and the Appellants/Plaintiffs’ claimed damages by
their silence and lack of action. Evidence of photos speaks itself. App. pp. 25 thru 33.
Appellants/Plaintiffs’ claimed damaged areas and its commensurate amount in the Complaint
paragraph Claim I and request for relief. App. pp. 16 thru 18, 22.
2. VECHOA’s tax free yearly revenue is about $400,000.00. VECHOA’s civil and
criminal deductable are $5,000.00 and $1,000.00. CHUBB Insurance and VECHOA conspired
to lie that the Appellants/Plaintiffs’ property damages are due to normal wear and tear.
3. Appellants/Plaintiffs offered to Defendants, CHUBB Insurance adjuster,
VECHOA property manager, Trial Court Special Judge Reid and the Defendants’ counsels to
come Appellants/Plaintiffs’ condo unit and cut open the ceiling and wall to expose the claimed
damaged areas. If photos are not good enough then one has to cut open and see the hidden area
of the damaged areas of the ceilings and the walls in the Appellants/Plaintiffs’ unit.
4. These recurring sustain damages to the Appellants/Plaintiffs’ property is the cause
of action and legally actionable pursuant to IC § 34-11-2-7(3) which states actions for injuries to
property other than personal property must be commenced within six years after the cause of
action accrues.
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5. Appellants/Plaintiffs stated in the Complaint claimed details and exact dollar
amount to be compensated line by line which pursuant to Ind. TR 12(B)(6). App. pp. 16 thru 20.
6. Trial Court Special Judge ignored/denied as moot Appellants/Plaintiffs’ request
for relief. Appellants/Plaintiffs’ request for relief in the Complaint satisfy Ind. TR 12(B)(6).
App. pp. 21 thru 23.
C. THE UNDISPUTED EVIDENCE DEMONSTRATS THAT THE APPELLANTS/PLAINTIFFS’ PROPERTY DAMAGE CLAIMS WERE NOT DUE TO NATURAL WEAR AND TEAR BUT THE RECURRING PROXIMATE AND ULTIMATE CAUSED BY THE WATER &/OR EXCREMENT/BLACK WATER.
“A party’s act is the proximate cause of an injury if it is the natural and probable
consequence of the act and should have been reasonably foreseen and anticipated in light of the
circumstances.” Munsell v. Hambright, 776 N.E.2d 1272, 1279 (Ind. Ct. App. 2002), trans.
denied. “Proximate cause requires, at a minimum, that the harm would not have occurred but for
the defendant’s conduct.” Id. The plaintiff does not have to prove that actions undertaken in
furtherance of the conspiracy were the only or most immediate, cause of the injuries.
Intervening acts which are readily foreseeable and the proximate result of the conspirators’
actions will not break the chain of legal causation. Vance v. Chandler, 231 Ill App3d 747, 173 Ill
Dec 525, 597 NEx2d 233 (1992) app den 147 Ill2d 637, 180 Ill Dec 159, 606 Ne2d 1236 (1992).
“... the concept of proximate causation in tort law, in the last analysis, the court must make a
judgment call. Tae v. Tae, 57 Mass. App. Ct. 297, 783 N.E.2d 827 (2003). “... The problem
comes about when the act, seemingly innocent, causes changes so subtle and latent that they are
not discoverable to the plaintiff until they manifest themselves many years later”. Barnes v. A.H.
Robins Co, Inc. 476 N.E.2d 84, 86 (Ind. 1985)(emphasis added).
D. TRIAL COURT ERRED APPLYING PROCEDURES OF APPOINTMENT OF SPECIAL JUDGE-SHERRY K. REID PURSUANT TO IND. TR 79. App. pp. 62.
27
The Appointment of Special Judge Sherry K. Reid violated the administrative procedures
when Ind.TR 79(D)(E)(F) were skipped and only Ind.TR 79(H) is applied to the Appointment.
Ind. TR 79“(D) Agreement of the parties...”,
“(E) Selection by court. In the event the parties fail to agree or are not permitted to agree to the appointment of a special
judge under Section (D)...”,
“(F) Selection by Panel. In the event a special judge is not selected under Sections (D) or (E) of this rule, this section
shall be used for the selection of a special judge...”,
“(H) Selection under local rule...”.
E. TRIAL COURT SPECIAL JUDGE SHERRY K. REID ABUSED POWER AND ACTED AS A HEAD OF DEFENDANTS’ COUNSEL.
1. Trial Court Special Judge Sherry K. Reid ignored/overturned the previous proceeding by the Judge David A. Shaheed who has already set this case for jury trial on June 21, 2011.
Trial Court Special Judge Sherry K. Reid ignored/overturned the previous proceeding by
the Honorable Judge David A. Shaheed when this case was set for jury trial on June 21, 2011.
Appellants/Plaintiffs and Defendants filed with the Court demanding the Jury Trial. Honorable
Judge David A. Shaheed granted the motions and set the jury trial on June 21, 2011. App. pp.
115. Per Order of the Court, Appellants/Plaintiffs completed and filed the Case Management
with the Court. App. pp. 59.
2. As soon as the Trial Court Special Judge Reid took over the case, her 1st order of business was to order the Plaintiff/Appellant to file/make
clear statement as to Appellants/Plaintiffs’ original Complaint.
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Trial Court Special Judge Sherry K. Reid erred when ordering the Appellants to make
clear statement as to the Complaint. App. pp. 64. Appellants/Plaintiffs’ Complaint filed pursuant
to Indiana Trial Rule 3. Commencement of an action as a Complaint and not a pleading or
document. “A civil action is commenced by filing with the court a complaint or such equivalent
pleading or document as may be specified by statute, by payment of the prescribed filing fee...”,
Ind. TR 3. Trial Court Special Judge Sherry K. Reid erred ordering the Appellants/Plaintiffs to
make clear statement as to the Complaint. App. pp. 13, 64, 88. Appellants/Plaintiffs’ Complaint
satisfies Indiana Trial Rule 3.
3. Trial Court Special Judge Reid’s Order granting summary judgment was false pretense for the Defendant/Appellee-VECHOA.
Trial Court Special Judge Reid’s Order granting summary judgment was false pretense
for the Defendant/Appellee-VECHOA. In the Order, the Trial Court stated that the all parties
were notified, appeared by counsel, heard oral arguments and submitted evidence were falsely
presented. There was no appearance by counsel, no oral arguments, no evidence submitted
before the Order of Summary Judgment was issued on May 12, 2011. The only hearing was on
May 16, 2011. App. pp. 52,118.
Trial Court Special Judge Sherry K. Reid violated demonstrated her intent to dismiss this
Trial Court case regardless of its merits and laws. Trial Court Special Judge Reid violated
Indiana Judicial Conduct:
Ind. JCC1, “A judge Shall Uphold and Promote the Independence, Integrity, and Impartiality of the Judiciary, and Shall Avoid
Impropriety and the Appearance of Impropriety.”
Ind. JCC1 R1.2, “A judge shall act at all times in a manner that promotes public confidence in the independence,* integrity,* and
*impartiality* of the judiciary, and shall avoid impropriety and the appearance of impropriety.”
29
Ind. JCC2, “A judge Shall Perform the Duties of Judicial Office Impartially, Competently, and Diligently.”
Comment [1] A judge who manifests bias or prejudice in a proceeding
impairs the fairness of the proceeding and brings the judiciary into disrepute.
F. APPELLANTS/PLAINTIFFS SHOULD BE PAID FOR PUNITIVE DAMAGE, DIRECT AND INDIRECT COSTS OF THIS ACTION AND FOR ALL OTHER JUST AND PROPER RELIEF IN THE PREMISES.
Punitive damages are not designed to make a plaintiff whole but rather to deter and
punish wrongful activity. Wohlwend v. Edwards, 796 N.E.2d 781 (Ind. Ct. App. 2003). Because
an award of punitive damages goes beyond compensation for a Plaintiff’s losses and damages,
they are only awarded if a Defendant’s conduct was so obdurate that the Defendant should be
punished for the good of the overall general public. Bell v. Clark, 670 N.E2d 1290 (Ind. 1996),
Budget Car Sales v. Stott, 656 N.E.2d 261 (Ind. Ct. App. 1995).
Where a nuisance is not abated after one verdict, punitive damages may be awarded in a
second action brought for the continuance of the nuisance. Cashin v Northern P. R. Co. (1934)
96 Mont 92, 28 P2d 862.
Property owners could seek emotional damages based on claims for trespass, nuisance...
Hassoldt v. Patrick Media Group, Inc., 84 Cal. App. 4th 153, 100 Cal. Rptr. 2d 662 (2d Dist.
2000).
....ratio of punitive damages to actual damages was seven to one, and there was no
evidence that neighbors could not afford to pay punitive damages. Shrader-Miller v. Miller, 2004
ME 117, 855 A.2d 1139 (Me. 2004).
30
Prejudgment interest is often allowed-either as a matter of right or in the court’s
discretion-as part of the damages assessed in actions for injury to real property. Torrans v Tri-
State Iron & Metal Co. (1964Tex Civ App Texarkana) 381 SW2d 668; Leibowitz v Mt. Vernon
(1937) 253 App Div 758, 300 NYS 1167.
... tort was committed against the property intentionally, willfully, or maliciously,
exemplary or punitive damages may be allowed. Claude v Weaver Constr. Co. (1968) 261 Iowa
1225, 158 NW2d 139, 31 ALR3d 1336; Ruppel v. Ralston Purina Co. (1968, Mo) 423 SW2d
752.
In 2006, Judge Cale J. Bradford dismissed the Plaintiff, Kay Kim’s lawsuit pursuant to
12(B)(6) even though the Defendants-owners of upper unit 6, Chelsey Rasmussen & Tom
Gusta’s had admitted faults. App. pp. 113. Appellee/Defendants CHUBB Insurance adjuster
Kimberlyn J. Twiehaus lied when she stated that there was no property damage to the
Appellants/Plaintiffs’ unit to support the owners of upper level condo unit 6-Shannon Lampsa &
Kyle Love. Defendant/Appellee, VECHOA always insisted over 10 years that they are not
responsible for any of Appellants/Plaintiffs’ property damage claims. The Appellants/Plaintiffs
cannot file any claim against the umbrella CHUBB Insurance or any VECHOA’s insurance
without the permission from the VECHOA. Indiana Trial Court denied the Appellants/Plaintiffs’
lawsuit. Appellants/Plaintiffs’ damages are from normal wear and tear but proximate and
ultimate causes. Appellants/Plaintiffs’ sustained actual loss of about $25,000.00 plus direct &
indirect costs of lawsuit of over $5,000.00 over the years. This amount does not include punitive
damages. Besides actual damage compensation, the Appellants/Plaintiffs is entitled to be paid
for punitive damages. Punitive damages are awarded against the defendants to punish them for
31
malicious conduct and to deter other people and corporations from committing the same
injustices.
VECHOA’s yearly tax free revenue is about $400,000.00 from over 200 units.
Appellants/Plaintiffs has been discriminated by the VECHOA and CHUBB Insurance. The
Court does not give any leniency for the procedure of the court or the law just because the
Appellants/Plaintiffs is Pro Se. The Appellants/Plaintiffs has to work 2 or 3 times harder than all
the lawyers combined. Besides actual and punitive damage for the claims, the
Appellants/Plaintiffs, Pro Se should be paid the equivalent of lawyer fees and all expenses
associated with the lawsuit.
IV. CONCLUSION AND PRECISE RELIEF SOUGHT
Trial Court erred when granting Order for Summary Judgment in false pretense for the
Defendant-VECHOA. In the Order, the Trial Court stated that the all parties were notified,
appeared by counsel, heard oral arguments and submitted evidence. There was no appearance by
counsel, no oral arguments, no evidence submitted before the Order of Summary Judgment was
issued on May 12, 2011. The only hearing for the Case was held on May 16, 2011.
Trial Court erred when granting Order to Dismiss CHUBB Insurance Company. The
CHUBB Insurance adjuster-Kimberlyn J. Twiehaus lied that Appellants/Plaintiffs’ property has
no damage but normal wear and tear. The absence of her affidavit &/or any document(s) in
writing is de facto their admission of guilt.
The Appellants/Plaintiffs’ property damages are still present to this date. If photos are
not good enough evidence, the Appellants/Plaintiffs would allow anyone to cut open the ceiling
and wall so that hidden damages areas above the ceilings and behind the walls can be exposed.
The Appellants/Plaintiffs has never been compensated (not even a penny) for the $25,000.00
32
actual damages in this Appealed Trial Court case. The Appellants/Plaintiffs has already spent
thousands of dollars to seek recourse for the damages.
The Appellants/Plaintiffs agrees with the Appellees/Defendants that if the damages were
caused by normal wear and tear, the Appellants/Plaintiffs shall be responsible for fixing and
maintaining the damages. The Appellants/Plaintiffs’ property damages are caused by the
proximate and ultimate causes and undisputable evidence for which the Appellees/Defendants
are responsible.
Appellants/Plaintiffs have suffered unjustly from the property damages without this
Appeals Court’s intervention.
Appellants/Plaintiffs Kay Kim, Pro Se and Charles, Chuang, Pro Se respectfully requests
this Court to reverse the Trial Court’s order granting summary judgment and dismissing the
Appellees/Defendants-VECHOA (Village at Eagle Creek Homeowner’s Association).
Appellants/Plaintiffs Kay Kim, Pro Se and Charles, Chuang, Pro Se respectfully requests
this Court to reverse the Trial Courts Order to dismiss CHUBB Insurance Company.
Appellants/Plaintiffs Kay Kim, Pro Se and Charles, Chuang, Pro Se respectfully requests
this Court to remand for further proceedings accordingly with costs of this action and for all
other just and proper relief in the premises.
Respectfully submitted,
Date: August 31, 2011 Kay Kim, Pro se-Plaintiff/Appellant4250 Village Pkwy Cir E. Unit 2Indianapolis, IN 46254Tel# 317-641-5977em: [email protected]
Date: August 31, 2011 Charles Chuang, Pro se-Plaintiff/Appellant4250 Village Pkwy Cir E. Unit 2
33
Indianapolis, IN 46254Tel# 317-641-5977em: [email protected]
WORD COUNT CERTIFICATE
Pursuant to Appellate Rule 44, I verify that this Appellants/Plaintiffs brief contains no more than 14,000 words, excluding the items listed in Appellate Rule 44(C) and I verify that this brief contains approximately 9,400 words.
Date: August 31, 2011 Kay Kim, Pro se-Plaintiff/Appellant4250 Village Pkwy Cir E. Unit 2Indianapolis, IN 46254Tel# 317-641-5977em: [email protected]
34
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the foregoing has been served by person on August 31, 2011.
Kay Kim, Pro se-Plaintiff/Appellant
LEWIS WAGNER, LLP501 Indiana Avenue, Suite 200Indianapolis, IN 46202Tel# (317) 237-0500 / Fax# (317) 630-2790 / em: [email protected]
KIGHTLINGER & GRAY, LLP Market Square Center, Suite 600151 Delaware StreetIndianapolis, IN 46204Tel# (317) 638-4521 / Fax# (317) 636-5917 / em: [email protected]
DUFFIN & HASH, LLP 251 E. Ohio Street, Suite 900Indianapolis, IN 46204Tel# (317) 580-9348 / Fax# (317) 224-2345 / em: [email protected]
ROCAP WITCHGER, LLP. 6666 E. 75th St., Suite 410Indianapolis, IN 46250Tel# (317) 577-5380 / Fax# (317) 577-5385 / em: [email protected] / [email protected]
Kay Kim, Pro Se-Plaintiff/Appellant 4250 Village Pkwy Cir E. Unit 2
35
