Brian S. Moore v. Del Anderson (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 13 2017, 10:07 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Brian S. Moore Trenton W. Gill
Indianapolis, Indiana Bailey L. Box
Reminger Co., LPA
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian S. Moore, January 13, 2017
Appellant-Plaintiff, Court of Appeals Case No.
49A04-1605-CT-955
v. Appeal from the Marion Superior
Court
Del Anderson, The Honorable James A. Joven,
Appellee-Defendant. Judge
The Honorable Kimberly Dean
Mattingly, Magistrate
The Honorable Shannon L.
Logsdon, Commissioner
Trial Court Cause No.
49D13-1502-CT-3909
Bailey, Judge.
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Case Summary
[1] Pro-se Appellant Brian S. Moore (“Father”) appeals the denial of his motion to
correct error, which challenged a grant of summary judgment in favor of
Appellee-Guardian Ad Litem Del Anderson (“the GAL”) upon Father’s claim
of intentional infliction of emotional distress arising from the GAL’s alleged
perjury in custody modification proceedings involving Father’s children with
Kristy Moore (“Mother”). Father presents the sole restated and consolidated
issue of whether summary judgment was improvidently granted. We affirm.
Facts and Procedural History
[2] Father and Mother were divorced in 2009 and agreed to share the legal and
physical custody of their children, with Father having somewhat less than equal
parenting time. In 2010, Mother filed a petition to modify custody, seeking sole
legal and physical custody. Father also filed a petition for modification,
requesting equal parenting time, a modified child support order based upon
equal parenting time, an order that the children remain in a private school, and
a continuation of an agreed-upon restriction of the maternal grandmother’s
visitation with the children.
[3] The parents appeared for an evidentiary hearing on September 19, 2011 and
each testified. At the conclusion of this testimony, the trial court found
insufficient evidence for an immediate modification but expressed concern
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about parental inability to communicate. The hearing was continued to permit
the appointment of a GAL.
[4] On August 22, 2012, an interim hearing was conducted at which Mother
testified that she had enrolled the children in a public school in Pendleton. The
GAL testified and opined that this was an appropriate change of schools. The
trial court found Mother in contempt for having made the school change
without court authorization, but ordered that the children would remain in
Pendleton Elementary School. Because of the distance between the parental
homes, this necessitated a modification of parenting time. Father was to have
the children each weekend and alternating Mondays.
[5] The previously continued evidentiary hearing, which began in September 2011,
recommenced on February 5, 2013, after a custody evaluation and the GAL’s
report had been filed with the court. The custody evaluator recommended that
Mother have custody with Father having parenting time consistent with the
Indiana Parenting Time Guidelines. The GAL, in his report, made the same
recommendation.
[6] The hearing was continued and the trial judge sua sponte recused herself. The
final day of the modification hearing was April 5, 2013, with a special judge
presiding. Father proposed that the parenting time arrangement continue
unchanged, with the exception of his giving Mother one weekend per month
with children.
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[7] During the custody hearing, Father took issue with three statements in the GAL
report. He strenuously challenged the GAL’s statements that Father had
maligned attorneys and judges, that Father had cried during an interview, and
that Father’s conduct had prompted a lockdown at Pendleton Elementary
School. Father presented testimony that local law enforcement and school
administration did not characterize the heightened security measures taken at
the school as a lockdown. He also submitted into evidence a recording of his
interview with the GAL and elicited the GAL’s admission that Father was not
heard on the recording to malign judges and attorneys. The GAL re-iterated
during cross-examination that Father had cried. Father moved, unsuccessfully,
to exclude the GAL report on grounds that it contained substantial
misrepresentations.
[8] On June 6, 2013, the trial court issued an order denying Mother’s request for
sole physical and legal custody of the children. Parenting time was modified to
provide that Father would have parenting time each weekend during the school
year, except one weekend per month. Father was to have mid-week parenting
time of no more than four hours. The order also provided that the maternal
grandmother could have unrestricted contact with the children and Father was
not to attend the children’s medical appointments.
[9] Father filed a motion to correct error, which was denied. He then appealed.
See Moore v. Moore, No. 49A04-1308-DR-401 (Ind. Ct. App. May 9, 2014). The
Court remanded the matter to the trial court for a recalculation of Father’s child
support obligation. With respect to the parenting time modification,
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grandparent access, and medical appointment restriction, the Court affirmed
the trial court’s order. Slip op. at 5-6. Father sought transfer to the Indiana
Supreme Court, which was denied on November 20, 2014.
[10] On February 5, 2015, Father filed a complaint against the GAL, Child
Advocates, Inc., and attorney Cynthia Dean (“Dean”). His claim against the
GAL was one of intentional infliction of emotional distress;1 he asserted that
the GAL had committed perjury in retaliation for Father’s filing a disciplinary
complaint against Dean. According to Father’s complaint, his overnights with
his children had been reduced from 182 to 110 per year, increasing his child
support obligation. Allegedly, Father had expended over $4,300.00 to pay for
transcripts and appellate filing fees and had lost work hours. He requested
unspecified monetary damages.
[11] On April 6, 2015, the defendants filed a motion for summary judgment. At the
conclusion of a hearing conducted on May 11, 2015, summary judgment was
granted in favor of Dean and Child Advocates, Inc. With regard to the claim
against the GAL, the trial court concluded that Indiana Code Section 31-17-6-8,
providing immunity to a GAL for professional conduct, does not immunize
gross misconduct. The trial court reasoned that the allegation of perjury alleged
1
Although Father’s complaint is not a model of clarity, in open court he described his claim as one of
“intentional infliction of emotional distress because they knew that I was self-employed.” (Tr. at 34.)
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gross misconduct and presented a factual issue not resolved by the sparse
designated materials.
[12] On September 11, 2015, the GAL filed a second motion for summary judgment
and his designation of materials, including materials from the custody
proceedings and appeal. At the hearing conducted on January 4, 2016, the
GAL argued that the issue of his credibility had been determined in prior
proceedings, specifically, the custody modification hearing and appeal. On
February 22, 2016, the trial court granted summary judgment to the GAL on
grounds of issue preclusion.2
[13] Father filed a motion to correct error, which was denied. This appeal ensued.
Discussion and Decision
[14] Generally, we review a trial court’s ruling on a motion to correct error for an
abuse of discretion. City of Indianapolis v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct.
App. 2010), trans. denied. However, to the extent the issues raised on appeal are
purely questions of law, our review is de novo. Id.
2
Issue preclusion, or collateral estoppel, bars subsequent re-litigation of the same fact or issue where that fact
or issue was necessarily adjudicated in a former lawsuit and that same fact or issue is presented in a
subsequent lawsuit, even if the second adjudication is on a different claim. National Wine & Spirits, Inc. v.
Ernst & Young, LLP, 976 N.E.2d 699, 704 (Ind. 2012). There are three requirements for application: (1) a
final judgment on the merits in a court of competent jurisdiction; (2) identity of the issues; and (3) the party to
be estopped was a party or the privity of a party in the prior action. Id.
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[15] Here, the motion to correct error challenged a grant of summary judgment.
Our supreme court has set out the applicable standard of review on summary
judgment as follows:
We review summary judgment de novo, applying the same
standard as the trial court: “Drawing all reasonable inferences in
favor of … the non-moving parties, summary judgment is
appropriate ‘if the designated evidentiary matter shows that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.’” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
fact is ‘material’ if its resolution would affect the outcome of the
case, and an issue is ‘genuine’ if a trier of fact is required to
resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).
The initial burden is on the summary-judgment movant to
“demonstrate [ ] the absence of any genuine issue of fact as to a
determinative issue,” at which point the burden shifts to the non-
movant to “come forward with contrary evidence” showing an
issue for the trier of fact. Id. at 761-62 (internal quotation marks
and substitution omitted). And “[a]lthough the non-moving
party has the burden on appeal of persuading us that the grant of
summary judgment was erroneous, we carefully assess the trial
court’s decision to ensure that he was not improperly denied his
day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
omitted).
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).
[16] Father has alleged that the GAL committed perjury when he “fabricated and
provided false evidence in a written report,” and “fabricated and presented false
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testimony in a hearing for a custody modification.” (App. at 28.) Specifically,
in his written report, the GAL had used the term “lock-down” to characterize a
heightened-security event at the children’s school – occasioned by Father’s
warning to “be ready” because he claimed to be “coming back with force.”
(Amended App. at 30.) Other witnesses denied that the heightened security
measures – extra police patrol and school staffing at the door – amounted to a
lock-down. Also, the GAL had claimed that Father had flowing tears, and had
used such terms as “crooks, liars, thieves, or belly-crawlers” to describe lawyers
and judges. (App. Vol. 3 at 34.) However, the derogatory references were not
heard on Father’s recording of his interview with the GAL. According to
Father, the rendering of demonstrably false testimony amounted to intentional
infliction of emotional distress.
[17] In Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991), our supreme court defined
the tort of intentional infliction of emotional distress as conduct by “one who by
extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another.” The intent to harm the plaintiff emotionally
constitutes the basis for the tort, and it is found only where the conduct exceeds
all bounds typically tolerated by a decent society and causes mental distress of a
very serious kind. Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind. Ct. App. 2011).
The elements of the tort are that the defendant: (1) engages in extreme and
outrageous conduct (2) which intentionally or recklessly (3) causes (4) severe
emotional distress to another. Id.
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[18] In Bradley v. Hall, 720 N.E.2d 747, 752-53 (Ind. Ct. App. 1999), a panel of this
Court quoted Restatement (Second) of Torts § 46 cmt. D with approval:
The cases thus far decided have found liability only where the
defendant’s conduct has been extreme and outrageous. It has not
been enough that the defendant has acted with an intent which is
tortious or even criminal, or that he has intended to inflict
emotional distress, or even that his conduct has been
characterized by “malice,” or a degree of aggravation which
would entitle the plaintiff to punitive damages for another tort.
Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation of the facts to
an average member of the community would arouse his
resentment against the actor, and lead him to exclaim,
“Outrageous!”
[19] In the appropriate case, the question of whether actions constitute “outrageous”
behavior can be decided as a matter of law. Curry, 943 N.E.2d at 361. The
instant matter – where the conduct at issue is the presentation of evidence in a
courtroom where decorum was maintained and no witness was admonished –
is such a case.
[20] The designated materials indicate that Father urged the trial court to find that
substantial misrepresentations were in the GAL report; we cannot say that the
trial court entertained a specific allegation of willful perjury during the course of
the custody proceedings. However, credibility determinations were necessitated
as the GAL provided testimony and documentary evidence and those written
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and oral representations were vigorously challenged. Father presented
witnesses to contradict the use of the term “lock-down.” He presented a
recorded interview that did not include his use of derogatory language. The
GAL was subjected to cross-examination on his report; he acknowledged the
lack of recorded evidence of derogatory remarks and conceded that others did
not find the term “lock-down” applicable. However, he did not retreat from his
claims that there had been a heightened-security event, or that Father had cried
and used derogatory language to describe lawyers and judges. Father asked
that the trial court strike the GAL report for alleged substantial
misrepresentations; the motion was denied.
[21] In the face of conflicting evidence, the trial court exercised its role as fact-finder
and accepted or rejected representations. Ultimately, Mother was granted some
portion of the modification terms she sought. Father points to the absence of
an explicit finding that the GAL’s testimony and report were credible and
argues that the evidence may have been rejected. However, in the event that
the GAL evidence was found lacking in credibility and not relied upon, Father
would have suffered no harm. The modification order would have been
produced independent of the GAL evidence.
[22] Nonetheless, even assuming a lack of credibility on the part of a witness, this is
not tantamount to extreme and outrageous behavior beyond the bounds of
decency or to the gross misconduct exception to civil immunity contemplated
by Indiana Code Section 31-17-6-8. Father has essentially launched a collateral
attack upon the process leading to the modification order, as opposed to
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addressing behavior beyond societal tolerance. The GAL is entitled to
summary judgment upon the claim for intentional infliction of emotional
distress.
Conclusion
[23] The trial court properly granted summary judgment in favor of the GAL.
[24] Affirmed.
Najam, J., and May, J., concur.
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