Myers v. Maxson
| Decision Date | 29 March 2016 |
| Docket Number | No. 79A05–1501–CT–39.,79A05–1501–CT–39. |
| Citation | 51 N.E.3d 1267 |
| Court | Indiana Appellate Court |
| Parties | Jason T. MYERS, Appellant, v. Thomas D. MAXSON; Amy L. Hutchison; Bruce W. Graham; and Trueblood & Graham (In their Official and Individual Capacities), Appellees. |
Jason T. Myers, Plainfield, IN, pro se.
Robert J. Feldt, Kyle B. Lawrence, Philip H. Getter, Eichhorn & Eichhorn, LLP, Hammond, IN, Attorneys for Appellees Graham and Trueblood & Graham, P.C.
Daniel M. Witte, Travelers Staff Counsel, James O. Giffin, Miranda W. Bernadac, Riley Bennett & Egloff, LLP, Indianapolis, IN, Attorneys for Appellees Hutchison and Maxson.
, Judge.
[1] Jason T. Myers appeals the trial court's order granting summary judgment in favor of Thomas Maxson, Amy L. Hutchison, Bruce W. Graham and Trueblood & Graham, P.C. (collectively, the “Appellees”). He raises five issues which we consolidate and restate as:
We affirm.
[2] The facts relating to Myers's conviction for battery resulting in serious bodily injury as a class C felony, which provide context for the issues raised in his appeal, are as follows:
.
Myers then fled the apartment. A short time later, he called Norris to check on her. He told her to go to the hospital, but threatened to kill her and everyone in the house if she pressed charges against him. Tr. p. 23. As the result of her injuries, Norris received five stitches, suffered bruising, swelling, and pain, and later underwent surgery.
Myers v. State (“Myers I”), No. 79A05–0507–CR–405, 853 N.E.2d 553, slip op. at 2–3 (Ind.Ct.App. August 23, 2006)
, trans. denied.
[3] Maxson, a police officer with the Lafayette Police Department, arrested Myers on May 11, 2003. At the time of the arrest, Myers told Maxson that he was acting in self-defense, and Maxson told Myers he would note that Myers's injuries were less severe than those of the complaining party. On June 20, 2003, the Tippecanoe County Prosecutor's Office charged Myers with battery resulting in serious bodily injury as a class C felony; battery as a class A misdemeanor; confinement as a class D felony; and criminal recklessness resulting in serious bodily injury as a class D felony. Id. at 3.
[4] Myers initially hired private counsel, but the Tippecanoe County Public Defender was later appointed to represent him, and on November 11, 2003, Hutchison entered an appearance on Myers's behalf. On February 24, 2005, Myers submitted to the court a pro se motion to dismiss based on an alleged violation of Criminal Rule 4(C)
,2 and on March 11, 2005, the court scheduled a two-day jury trial for June 28, 2005. The trial was held as scheduled, and Maxson testified that he could not recall whether a May 11, 2003 booking photograph accurately depicted Myers's physical appearance at the time of his arrest. Myers requested to see the booking photograph, told Hutchison that she should use the photograph in her cross-examination of Maxson, and that she should re-call a previous witness to present an alleged inconsistent statement to support Myers's claim that he had acted in self-defense during the events on May 10, 2003. In response to Myers's requests that she use his booking photograph and re-call the previous witness, Hutchison advised Myers that the booking photograph was probably not admissible and that re-calling the previous witness might be damaging because the witness's statement referred to Myers's drug use. Hutchison sought the advice of a long-time investigator who explained to Myers that the witness's statement related to Myers's drug use. Myers ultimately decided not to use the booking photograph and was convicted of battery as a class C felony. He was sentenced on September 29, 2005.
[5] On October 20, 2005, Graham entered an appearance on Myers's behalf and filed a notice of appeal. On August 23, 2006, this Court issued an opinion affirming Myers's felony battery conviction. See Myers I, slip op. at 1. On Myers's behalf, Graham filed a petition to transfer to the Indiana Supreme Court, and the petition was denied on October 3, 2006. After notifying Myers of the outcome of the transfer petition, Myers wrote Graham a letter in which he accused Graham of ineffective assistance of counsel in appealing his felony conviction for battery and threatened Graham with “a malpractice action” for his failure to assert a Criminal Rule 4(C)
violation. Appellant's Appendix at 160.
[6] On March 5, 2008, Myers, pro se, filed a petition for post-conviction relief from his 2005 battery conviction, alleging ineffective assistance of counsel.3 On April 1, 2008, the court appointed the Indiana Public Defender to represent him. On December 9, 2010, Deputy Public Defender Gregory Lewis met with Myers, who was incarcerated on unrelated drug charges,4 to discuss post-conviction remedies available to him. Lewis advised Myers that the court's scheduling of his trial date may have violated Criminal Rule 4(C)
.
[7] Beginning in April 2011, Myers began sending Douglas Masson, the Tippecanoe County Attorney, a series of letters related to allegations of legal malpractice against Hutchison. Masson employed a policy of “retain[ing] the envelope if a letter is sent using certified or registered mail,” he did not have “any envelopes associated with the letters from Mr. Myers,” and it was his belief “the letters were not received via registered or certified mail.” Id. at 67. Myers's April 4, 2011 letter contained headings titled “Discovery Rule” which attempts to explain his reasons why the discovery rule should apply to his case, “Compensatory Damages” which states his alleged mental health problems resulting from the alleged malpractice, and “Punitive Damages” which he bases on Hutchison's failure to identify the Criminal Rule 4(C)
Violation. Another letter, dated April 26, 2011, references a request Myers made to Tippecanoe County's insurance company to settle his alleged malpractice claim against Hutchison for her failure to file a motion to dismiss on the basis of Criminal Rule 4(C). Hutchison also received a letter from Myers in late April or early May 2011, which enclosed unsigned and undated materials as well as certain documents stemming from his battery conviction, direct appeal, and correspondence with his counsel for his petition for post-conviction relief.
[8] On April 30, 2012, after an evidentiary hearing, the post-conviction court concluded that Myers received ineffective assistance of trial and appellate counsel and vacated his battery conviction on the basis of a Criminal Rule 4(C)
violation. Myers remains incarcerated for his conviction for dealing in cocaine. See
Myers II, slip op. at 11–12.
[9] On December 6, 2012, Myers filed a complaint against the Appellees asserting a “Brady [5 ] type due process violation, legal malpractice, constructive fraud and intentional infliction of emotional distress” by the Appellees. Id. at 12. Myers's complaint requested compensatory damages related to his felony battery conviction, special damages for his inability to mitigate the penalty in another crime and present potentially exculpatory evidence at the battery trial, and alleged mental health issues and drug addiction stemming from the trial's outcome. He requested punitive damages from the Appellees. He also filed a supporting brief and a motion requesting the trial court to order a court reporter, at no cost to him, to prepare and deliver transcripts of his May 23, 2011 post-conviction evidentiary hearing.
[10] On February 4, 2013, Maxson filed a motion to dismiss Myers's claims pursuant to Indiana Trial Rule 12(B)(6)
. On June 17, 2013, Hutchison filed a motion for summary judgment, a brief in support of the motion, and a designation of evidence. On the same day, Graham and Trueblood & Graham filed a motion for summary judgment, a brief in support of the motion, and their designation of evidence.6 Myers responded to the motions for summary judgment filed by Hutchison, Graham and Trueblood & Graham, and to Maxson's motion to dismiss on July 22, 2013 and filed an additional designation of evidence.
[11] On August 1, 2013, the court held a hearing on the parties' pending motions, and on January 2, 2014, granted the motions for summary judgment filed by Hutchison, Graham and Trueblood & Graham, and denied Maxson's motion to dismiss. Myers appealed.
[12] On January 28, 2014, while Myers's appeal of the court's January 2 order was pending, Maxson filed a motion for summary judgment and designation of evidence. On April 2, 2014, Maxson filed a motion for entry of judgment on his motion for summary judgment. On April 7, 2014, Myers responded to Maxson's motion, requesting additional time to file his answer due to the pendency of his appeal.
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