Charles E. Sweeney v. The Honorable Nancy H. Vaidik (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Dec 23 2015, 8:42 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Charles Sweeney Gregory F. Zoeller
Carlisle, Indiana Attorney General
Kyle Hunter
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles E. Sweeney, December 23, 2015
Appellant, Court of Appeals Cause No.
77A01-1509-MI-1556
v. Appeal from the Sullivan Circuit
Court
The Honorable Nancy H. The Honorable Robert E. Hunley,
Vaidik, Judge
Robert E. Springer, Magistrate
Appellee.
Trial Court Cause No.
77C01-1508-MI-427
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 77A01-1509-MI-1556 | December 23, 2015 Page 1 of 7
Case Summary
[1] Charles E. Sweeney appeals the trial court’s dismissal of his complaint against
the Honorable Nancy H. Vaidik, Chief Judge of the Indiana Court of Appeals.
We affirm.
Issues
[2] Sweeney raises several issues. We address two of the issues, which we restate
as:
I. whether the trial court properly dismissed
Sweeney’s complaint; and
II. whether the trial court properly denied
Sweeney’s motion to correct error.
Facts
[3] In 1995, Sweeney was convicted of murder and sentenced to sixty years in the
Indiana Department of Correction. Sweeney v. State, 704 N.E.2d 86, 93 (Ind.
1998), cert denied. Our supreme court affirmed his conviction and sentence. Id.
at 112. Sweeney then unsuccessfully sought habeas corpus relief. Sweeney v.
Carter, 361 F.3d 327 (7th Cir. 2004), reh. and reh. en banc denied, cert. denied.
Sweeney then sought post-conviction relief, which the post-conviction court
denied. A panel of this court that included Judge Bailey, Judge May, and
Judge Bradford affirmed the denial of his petition for post-conviction relief.
Sweeney v. State, 886 N.E.2d 1 (Ind. Ct. App. 2008), trans. denied, cert. denied.
Court of Appeals of Indiana | Memorandum Decision 77A01-1509-MI-1556 | December 23, 2015 Page 2 of 7
[4] In August 2015, Sweeney filed a 42 U.S.C. § 1983 civil complaint against Chief
Judge Vaidik.1 Sweeney alleged that the appeal of the denial of his petition for
post-conviction relief was incorrectly decided. According to Sweeney,
The Court of Appeals [sic] inexplicable failure to recognize
decades of Indiana Supreme Court precedent holding that the
Article I Section 13 right to be heard by (competent) counsel
attaches when a suspect is arrested and before the filing of formal
charges violates the right to due process and equal protection of
law as guaranteed by the Fourteenth Amendment of the U.S.
Constitution and the Indiana Article I Section 12 right to due
course of law.
Appellant’s App. p. 12.
[5] On August 27, 2015, Chief Judge Vaidik filed a motion to dismiss with
prejudice because “the claims are barred by collateral estoppel, are contrary to
public policy and Plaintiff has failed to state a claim against Defendant.”
Appellee’s App. p. 6. Chief Judge Vaidik argued, in part, that Sweeney was
attempting to relitigate his petition for post-conviction relief and that she did not
participate in the decision at issue. On September 1, 2015, the trial court
dismissed Sweeney’s complaint with prejudice. Sweeney then filed a motion to
correct error, which the trial court also denied. Sweeney now appeals.
1
Sweeney identified the defendant in the complaint as “Hon. Nancy H. Vaidik, Chief Judge of the Indiana
Court of Appeals, et al.” Appellant’s App. p. 5 (emphasis added). Although Sweeney apparently mailed a
copy of the complaint and various other pleading to other judges on this court, he has not named anyone
other than Chief Judge Vaidik as a defendant.
Court of Appeals of Indiana | Memorandum Decision 77A01-1509-MI-1556 | December 23, 2015 Page 3 of 7
Analysis
I. Motion to Dismiss
[6] Chief Judge Vaidik’s motion to dismiss was based on Indiana Trial Rule
12(B)(6). A Trial Rule 12(B)(6) motion to dismiss challenges the legal
sufficiency of a complaint. Meyers v. Meyers, 861 N.E .2d 704, 705-06 (Ind.
2007). “Our review of a trial court’s grant or denial of a motion to dismiss
based on Trial Rule 12(B)(6) is de novo.” Allen v. Clarian Health Partners, Inc.,
980 N.E.2d 306, 308 (Ind. 2012). Viewing the complaint in the light most
favorable to the non-moving party, we must determine whether the complaint
states any facts on which the trial court could have granted relief. Id.[7] Sweeney’s only argument2 on appeal is that the motion to dismiss should have
been construed as a motion for summary judgment pursuant to Indiana Trial
Rule 12(B), which provides:
If, on a motion, asserting the defense number (6), to dismiss for
failure of the pleading to state a claim upon which relief can be
granted, matters outside the pleading are presented to and not
excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56. In
2
Sweeney does not address the merits of the motion to dismiss or basis of the trial court’s grant of the motion
to dismiss. Consequently, we do not address these issues. Sweeney does summarily contend that he is not
collaterally challenging the denial of his petition for post-conviction relief. To the extent this could be
considered a challenge to the merits of the motion to dismiss, it is waived for failure to make a cogent
argument. See Ind. Appellate Rule 46(A)(8). The majority of Sweeney’s appellant’s brief addresses the
claims presented in his complaint, which we also need not address.
Court of Appeals of Indiana | Memorandum Decision 77A01-1509-MI-1556 | December 23, 2015 Page 4 of 7
such case, all parties shall be given reasonable opportunity to
present all material made pertinent to such a motion by Rule 56.
According to Sweeney, the trial court considered matters outside the pleadings
and should have allowed him thirty days to file a response to the motion. Our
review of the motion to dismiss does not reveal any matters outside of the
pleadings that were presented to or considered by the trial court. Sweeney does
not specifically identify any such matters or evidence. As such, the trial court
properly did not convert the motion into a motion for summary judgment.
[8] The Indiana Trial Rules do not require the trial court to wait for Sweeney to file
a response before granting the motion to dismiss. See Higgason v. State, 789
N.E.2d 22, 29 (Ind. Ct. App. 2003) (“Because the trial court did not have to
wait for a response from Higgason, the trial court did not err when it ruled on
Defendants’ motion thirteen days after it was filed.”); see also Ind. Trial Rule
6(C). Consequently, the trial court did not err by granting the motion to dismiss
before Sweeney responded.
II. Motion to Correct Error
[9] Sweeney next argues that the trial court erred by denying his motion to correct
error. We review a trial court’s ruling on a motion to correct error for an abuse
of discretion. Santelli v. Rahmatullah, 993 N.E.2d 167, 173 (Ind. 2013). An
abuse of discretion occurs when the decision is clearly against the logic and
effect of the facts and circumstances before the court, including any reasonable
Court of Appeals of Indiana | Memorandum Decision 77A01-1509-MI-1556 | December 23, 2015 Page 5 of 7
inferences therefrom. Dunno v. Rasmussen, 980 N.E.2d 846, 849 (Ind. Ct. App.
2012).
[10] Sweeney argued in his motion that he had not received a service copy of the
motion to dismiss and was not afforded “his right (15 days) to Reply.”
Appellant’s App. p. 16. On appeal, he argues that the trial court should have
granted the motion to correct error because he was not served with a copy of
the motion to dismiss. He argues that the “trial court should have ordered
Counsel to serve Appellant and afforded him an opportunity to reply.”
Appellant’s Br. p. 12. Chief Judge Vaidik responds that the certificates of
service of the motion to dismiss and related documents indicate that Sweeney
was, in fact, served with the documents.
[11] Even if Sweeney did not receive the documents, the trial court was not required
to give Sweeney an opportunity to respond prior to ruling on the motion. See
Higgason, 789 N.E.2d at 29. Sweeney has failed to demonstrate any error in the
trial court’s grant of the motion to dismiss. Consequently, even if he did not
receive the documents in a timely manner, he has failed to demonstrate any
prejudice. The trial court did not err by denying the motion to correct error.
Conclusion
[12] The trial court properly granted the motion to dismiss and properly denied the
motion to correct error. We affirm.
[13] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 77A01-1509-MI-1556 | December 23, 2015 Page 6 of 7
Robb, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 77A01-1509-MI-1556 | December 23, 2015 Page 7 of 7