Shepherd v. Truex

• Decision Date: 07 March 2005
• Docket Number: No. 43A03-0407-CV-344.,43A03-0407-CV-344.
• Citation: 823 N.E.2d 320
• Parties: Kenneth R. SHEPHERD, Appellant-Plaintiff, v. Raymond D. TRUEX, Michael L. Miner, William Fawley, Valentine & Miner, Attorneys at Law, Alan Rovenstine, Steve Heller, Terry McGlennen and Kenneth Wolf, Jr., Appellees-Defendants.
• Court: Indiana Appellate Court

823 N.E.2d 320

Kenneth R. SHEPHERD, Appellant-Plaintiff, v. Raymond D. TRUEX, Michael L. Miner, William Fawley, Valentine & Miner, Attorneys at Law, Alan Rovenstine, Steve Heller, Terry McGlennen and Kenneth Wolf, Jr., Appellees-Defendants.

No. 43A03-0407-CV-344.

Court of Appeals of Indiana.

March 7, 2005.

Rehearing Denied May 6, 2005.

Kenneth R. Shepherd, Claypool, IN, Appellant pro se.

Philip E. Kalamaros, Hunt Suedhoff Kalamaros LLP, South Bend, IN, Attorney for Appellees Michael L. Miner, William Fawley and Valentine & Miner.

OPINION

BAILEY, Judge.

Case Summary

Appellant-Plaintiff Kenneth R. Shepherd ("Shepherd") appeals the trial court's order granting judgment on the pleadings to Appellees-Defendants Michael L. Miner ("Miner"), William Fawley, and Valentine & Miner (collectively referred to as "Appellees"). We affirm.¹

Issue

Shepherd raises two issues, which we consolidate and restate as whether the trial court erred by granting judgment on the pleadings to Appellees because the allegations in the complaint, when taken as true, support an independent action for fraud upon the court, pursuant to Indiana Trial Rule 60(B), and a cause of action for attorney deceit, pursuant to Indiana Code Section 33-21-1-8.

Facts and Procedural History

The relevant facts as alleged in the complaint follow. On August 4, 1999, Shepherd, Steve Heller ("Heller"), Terry McGlennen ("McGlennen"), and Kenneth Wolf, Jr. ("Wolf") reported to the Indiana State Police that Raymond D. Truex ("Truex") had threatened them with a gun. In the report, the witnesses described the gun used by Truex "down to make and color." Appellant's App. at 18. On March 3, 2000, Truex pleaded guilty to pointing a firearm at another person and received a one-year suspended sentence, to be served on probation. At that time, Truex allocuted that "on August 4, 1999, he did knowingly or intentionally point a firearm at another person." Id. at 20.

On June 5, 2000, Shepherd filed a civil tort action against Truex in federal court. Appellees represented Truex in that lawsuit. In the course of the federal lawsuit, Alan Rovenstine — a relative of Truex and an investigator with the Kosciusko County Sheriff's Department — on behalf of Appellees, conducted an investigation regarding the incident that had occurred on August 4, 1999. As part of his investigation, Rovenstine interviewed Heller, McGlennen, Wolf, and Truex. Rovenstine "then made an affidavit" of Heller, McGlennen, Wolf, and Truex's testimony, stating that Truex did not point a firearm at anyone on the date in question and, further, that the affiants were not certain that what Truex showed them was a gun.

Appellees presented these affidavits to the federal court, which eventually dismissed Shepherd's cause of action, without prejudice, for lack of jurisdiction. Subsequently, on August 3, 2001, Shepherd filed the civil tort action against Truex in Kosciusko Superior Court. On August 23, 2001, Truex, with Appellees as his counsel, filed a motion for summary judgment, to which he designated the affidavits of Heller, McGlennen, Wolf, and Truex. In response, and in an attempt to prove that the affidavits were false, Shepherd filed a motion for continuance and a request for depositions. Appellees objected to Shepherd's motion and request, and the trial court sustained the objection. On September 27, 2001, Shepherd subpoenaed Heller, McGlennen, and Wolf to appear and give evidence at the summary judgment hearing. On October 8, 2001, Truex, through Miner, filed a motion to quash the subpoenas, which the trial court granted. On October 15, 2001, Shepherd, once again, unsuccessfully moved for a continuance to provide him more time to prove that the affidavits of Heller, McGlennen, Wolf, and Truex were "fraudulent." Id. at 24. Thereafter, on October 19, 2001, after conducting a hearing, the trial court granted summary judgment in favor of Truex.

Approximately two and one-half years later, on March 26, 2004, Shepherd filed a separate cause of action against Truex, Appellees, Rovenstine, Heller, McGlennen, and Wolf in Kosciusko Circuit Court,² alleging fraud upon the court pursuant to Indiana Trial Rule 60(B) and attorney deceit under Indiana Code Section 33-21-1-8.³ With respect to his "fraud upon the court" claim, Shepherd alleged that Appellees "used an unconscionable plan or scheme to commit `fraud on the court' to get . . . [s]ummary [j]udgment awarded in their favor against [Shepherd.]" Id. at 28. Specifically, Shepherd asserted that Appellees prepared and submitted the "false affidavits" of Heller, McGlennen, Wolf, and Truex — which state that Truex did not point a gun at anyone on August 4, 1999 and, further, expressed uncertainty as to whether what Truex showed Heller, McGlennen, and Wolf was a gun — to the summary judgment court knowing that Truex had previously pleaded guilty to pointing a gun at another person. In furtherance of this "fraud on the court," Shepherd alleged that Appellees purposefully objected to his motions for a continuance and additional discovery, as well as moved to quash his subpoenas, to protect the fraudulent affidavits. According to Shepherd, at the summary judgment hearing, Appellees also represented to the trial court that "affidavits were the home run hitters in summary judgment." Id. at 34.

In addition, with regard to his cause of action for attorney deceit or collusion, Shepherd alleged that Appellees committed fraud, for which they are not immune from liability, by knowingly preparing and submitting the false affidavits to the trial court. In his complaint, Shepherd further alleged that Miner and Fawley consented to "deceit and collusion," in violation of the Attorney Deceit Statute, because, despite their knowledge that Truex had pleaded guilty of pointing a gun at another person on August 4, 1999, they presented the four affidavits, which provide that Truex did not point a gun at anyone on that date.

On April 27, 2004, Appellees filed a motion for judgment on the pleadings, arguing that Shepherd's complaint fails to state a cause of action for fraud upon the court and attorney deceit. On June 7, 2004, the trial court granted Appellees' motion for judgment on the pleadings. This appeal by Shepherd ensued.

Discussion and Decision

I. Standard of Review

On appeal, Shepherd contends that the trial court erred by granting Appellees' motion for judgment on the pleadings. A judgment on the pleadings pursuant to Indiana Trial Rule 12(C) attacks the legal sufficiency of the pleadings. National R.R. Passenger Corp. v. Everton By Everton, 655 N.E.2d 360, 363 (Ind.Ct.App. 1995), trans. denied. In reviewing a trial court's decision on a motion for judgment on the pleadings, this Court conducts a de novo review. Eskew v. Cornett, 744 N.E.2d 954, 956 (Ind.Ct.App.2001), reh'g denied, trans. denied. We will affirm the trial court's grant of a Rule 12(C) motion for judgment on the pleadings when it is clear, from the face of the pleadings, that one of the parties cannot in any way succeed under the operative facts and allegations made therein. Davis ex rel. Davis v. Ford Motor Co., 747 N.E.2d 1146, 1149 (Ind.Ct.App.2001), trans. denied.

In addition, when we consider a motion for judgment on the pleadings, we deem the moving party to have admitted "all facts well pleaded, and the untruth of his own allegations which have been denied." New Trend Beauty Sch., Inc. v. Indiana State Bd. of Beauty Culturist Examiners, 518 N.E.2d 1101, 1103 (Ind.Ct. App.1988). All reasonable inferences are drawn in favor of the nonmoving party and against the movant. National, 655 N.E.2d at 363.

II. Analysis

Shepherd argues that the trial court erred by granting Appellees' motion for judgment on the pleadings because his complaint alleged sufficient facts to support a claim upon which relief could be granted. Specifically, Shepherd contends that his complaint properly asserted an independent action for fraud on the court, as well as a cause of action for attorney deceit. We separately address each argument.

A. Fraud on the Court

Shepherd first maintains that the allegations in the complaint at issue sufficiently stated an independent action for fraud on the court pursuant to Indiana Trial Rule 60(B). Rule 60(B), which governs motions for relief from judgments, provides, in relevant part:

On motion and upon such terms as are just the court may relieve a party or his legal representative from an entry of default, final order, or final judgment, including a judgment by default, for the following reasons:

* * * * * *

(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

* * * * * *

The motion shall be filed within a reasonable time for reasons (5), (6), (7), and (8), and not more than one year after the judgment, order or proceeding was entered or taken for reasons (1), (2), (3), and (4). A movant filing a motion for reasons (1), (2), (3), (4), and (8) must allege a meritorious claim or defense. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding or for fraud upon the court.

Id. (emphasis added).

Pursuant to Indiana Trial Rule 60(B), there are three ways to attack a judgment on the grounds of fraud on the court. See Stonger v. Sorrell, 776 N.E.2d 353, 355-57 (Ind.2002)

(adopting federal authority for analyzing claims under Indiana Trial Rule 60(B)). The first method is by way of a motion filed under Trial Rule 60(B)(3). Id. at 355, 356. Such a motion may be based upon any kind of fraud — albeit intrinsic, extrinsic, or fraud on the court — so long as it is chargeable to an adverse party and has an adverse effect on the moving party. Id. at 356. However, the motion is generally limited to the court in which the judgment was rendered...