Pursuant to Ind.Appellate Rule 65(D), Jul 30 2013, 7:39 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 APPELLEES:
VICTOR FOINTNO GREGORY F. ZOELLER
Bunker Hill, Indiana Attorney General of Indiana
KATHY BRADLEY
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
VICTOR FOINTNO, )
)
Appellant-Petitioner, )
)
vs. ) No. 52A05-1303-SC-126
)
CLAIR BARNES, et al., )
)
Appellees-Respondents. )
APPEAL FROM THE MIAMI SUPERIOR COURT
The Honorable J. David Grund, Judge
Cause No. 52D01-1206-SC-425
July 30, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Victor Fointno (“Fointno”), an inmate at the Miami Correctional Facility proceeding
pro se in this matter, filed a small claims action against Indiana Department of Correction
(“DOC”) Officer Earnest Parkin1 (“Officer Parkin”) and other DOC employees (“the
Defendants”), each in their personal rather than official capacities. In his suit, Fointno
claimed that his television was broken as a result of tortious conduct engaged in by one or
more of the Defendants. The trial court set the matter for trial by affidavit because of
Fointno’s status as a DOC inmate.
Fointno submitted affidavits to the trial court and filed a motion for summary
judgment; the Defendants filed a motion to dismiss Fointno’s claims. In a single order, the
trial court denied Fointno’s motion for summary judgment, found that Fointno failed to meet
his burden of proof, found that all of the Defendants were immune from liability under the
Indiana Tort Claims Act (“the Act”), see Ind. Code § 34-13-3-1 et seq., and entered judgment
for the Defendants.
Fointno now appeals. We affirm.
Issue
Though Fointno raises numerous issues for our review, we find one matter dispositive:
whether the trial court erred when it concluded that Fointno had not adduced sufficient
1
In his notice of claim, Fointno identified Officer Parkin as “Perkins,” and the trial court retained the
erroneous spelling in its case caption.
2
evidence to prove his claim, and therefore entered judgment in favor of the Defendants.2
Facts and Procedural History
On May 14, 2011, Fointno had been transferred from a cell house at the Miami
Correctional Facility to a segregation unit. Among Fointno’s belongings that were
transferred with him was a television set.
On June 13, 2012, Fointno, proceeding pro se, alleged in his Notice of Claim that
when he left the cell house for segregation, his television was working properly, but that the
television set was broken when it was returned to him in segregation. Fointno further
alleged, “I believe [Officer Parkin] had drop [sic] my TV.” (Appellees’ App. at 1.) As relief,
Fointno sought $500 in damages plus 10% interest per annum and $600 in court costs.
Fointno served the Notice of Claim and accompanying summonses on Officer Parkin and
numerous other individuals employed by DOC. Though Fointno’s Notice of Claim was
served upon numerous other individuals, Fointno did not allege facts concerning the conduct
of anyone other than Officer Parkin.
On June 14, 2012, the trial court ordered that evidence in the case be submitted by
affidavit, with a trial date set for October 14, 2012. The order required that Fointno have
submitted his evidence with all supporting exhibits by the trial date and afforded the
Defendants 20 days after that to file their evidence and exhibits, Fointno an additional 10
days after the Defendants’ submissions in which to submit evidence and exhibits in rebuttal,
2
To the extent Fointno raises constitutional issues, we observe that he provided neither evidence nor
argument to the trial court concerning these matters, and he has thus waived our review of those issues.
See Endres v. Ind. State Police, 809 N.E.2d 320, 321 (Ind. 2004) (concluding that a constitutional claim
was waived where there were no materials submitted to indicate any argument before the trial court until a
motion to correct error).
3
and an additional 10 days for the Defendants to submit any surrebuttal. The trial court
further ordered that it would render a ruling after all evidence was submitted and subject to
review.
On July 24, 2012, Fointno filed an “affidavit of fact” with the trial court, which
opposed any representation of the Defendants by the Indiana Attorney General.
On August 2, 2012, a Deputy Attorney General filed her appearance in the case on
behalf of the Defendants. On August 9, 2012, the Defendants filed a response to Fointno’s
affidavit. On August 16, 2012, the trial court entered an order denying Fointno’s request that
the Indiana Attorney General be precluded from representing the Defendants.
On September 5, 2012, Fointno filed a responsive affidavit and motion opposing the
Defendant’s response to his initial “affidavit of fact.” On September 13, 2012, the
Defendants filed a response to Fointno’s responsive affidavit. On September 21, 2012, the
trial court again denied Fointno’s request that the Indiana Attorney General be precluded
from representing the Defendants.
On October 22, 2012, Fointno filed a motion for summary judgment, seeking
judgment against the Defendants as a matter of law without submitting additional evidentiary
matter in support of the motion. On October 23, 2012, the Defendants filed a motion to
dismiss with a supporting memorandum of law.
On February 21, 2013, the trial court denied Fointno’s motion for summary judgment
and entered judgment in favor of the Defendants, finding that Fointno had failed to meet his
burden of proof in the matter and that the Defendants were immune from suit under the
4
Indiana Tort Claims Act.
This appeal ensued.
Discussion and Decision
Though Fointno raises numerous issues, we address one issue here: whether the trial
court erred when it entered judgment in favor of the Defendants.3 Where an appellant
challenges the entry of judgment after a small claims bench trial, we generally will not set
aside the judgment unless it is clearly erroneous. Ind. Small Claims Rule 11(A) (providing
for “review as prescribed by relevant Indiana rules and statutes”); Ind. Trial Rule 52(A)
(providing that on appeal, a judgment shall not be set aside where “tried by the court without
a jury … unless clearly erroneous”). However, where the trial court’s judgment “turns solely
on documentary evidence,” we will review the judgment “de novo,” as we do with summary
judgment and other cases involving paper records. Eagle Aircraft, Inc. v. Trojnar, 983
N.E.2d 648, 657 (Ind. Ct. App. 2013) (emphasis in original) (quoting Trinity Homes, LLC v.
Fang, 848 N.E.2d 1065, 1068 (Ind. 2006)) (internal quotes omitted).
Here, the trial court found that Fointno failed to adduce evidence sufficient to
demonstrate by a preponderance of the evidence his entitlement to relief under the Indiana
Tort Claims Act. Among the Act’s provisions is a requirement that a plaintiff bring suit
either against a government employee personally or against the government body itself. I.C.
§§ 34-13-3-5(a) – (c). Where a plaintiff pursues a tort claim against state employees
3
The Defendants address Fointno’s claims by arguing in their brief before this Court that the trial court
granted their motion to dismiss. The trial court’s order entering judgment for the Defendants does not
purport to dismiss Fointno’s claims, and was issued in conformance with the scheduled trial of the case.
We therefore treat Fointno’s appeal as one from the entry of judgment on the merits, rather than as an order
dismissing his notice of claim.
5
personally, rather than under a theory of respondeat superior, the lawsuit “must allege that an
act or omission of the employee that causes a loss is: (1) criminal; (2) clearly outside the
scope of the employee’s employment; (3) malicious; (4) willful and wanton; or (5) calculated
to benefit the employee personally.” I.C. § 34-13-3-5(c). “Although the statute formulates
this as a pleading requirement, it also amounts to a legislative establishment of substantive
elements of a claim.” Niksich v. Cotton, 810 N.E.2d 1003, 1006 (Ind. 2004). Thus, not only
was Fointno required to properly plead his claim against the Defendants in their personal
capacities, but to succeed at trial he needed to establish by a preponderance of the evidence at
least one of the five factors in Subsection 34-13-3-5(c).
Our review of the record does not reveal that the trial court erred when it concluded
that Fointno failed to adduce evidence sufficient to prove by a preponderance of the evidence
that any of the Defendants damaged Fointno’s television set in a manner that was criminal,
outside the scope of any of the Defendants’ employment, malicious, willful and wanton, or
calculated to benefit any of the Defendants personally. Fointno’s notice of claim states only
that the television set worked before it was moved and later did not, which Fointno believed
was the result of the device being dropped. None of Fointno’s subsequent filings before the
trial court make any factual representations concerning the events of May 14, 2011.
Fointno’s two “Affidavit(s) of Fact” make it clear that his suit sought to hold each of the
individual Defendants personally liable. The affidavits further present arguments that seek to
preclude representation of the Defendants by the Indiana Attorney General, and his motion
for summary judgment was filed without any accompanying affidavit or other designated
6
evidentiary matter.
Simply put, Fointno produced no probative evidence of any kind—let alone evidence
sufficient to demonstrate that any of the various Defendants engaged in any action that would
amount to conduct rendering any of them personally liable under Subsection 34-13-3-5(c) of
the Act for damage to the television set. We therefore affirm the trial court’s entry of
judgment against Fointno and in favor of the Defendants.
Affirmed.
NAJAM, J., and BARNES, J., concur.
7