MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                            Jun 29 2016, 8:17 am
this Memorandum Decision shall not be                                  CLERK
regarded as precedent or cited before any                          Indiana Supreme Court
                                                                      Court of Appeals
court except for the purpose of establishing                            and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT, PRO SE                                        ATTORNEYS FOR APPELLEE
Philip H. Chamberlain                                    Gregory F. Zoeller
                                                         Attorney General of Indiana
                                                         Frances Barrow
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Philip H. Chamberlain,                                   June 29, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         53A05-1507-CT-1281
        v.                                               Appeal from the Monroe Circuit
                                                         Court
State of Indiana, Connie                                 The Honorable E. Michael Hoff,
Lawson, and Chris Naylor,                                Judge
Appellees-Defendants.                                    Trial Court Cause No.
                                                         53C01-1410-CT-1890



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 53A05-1507-CT-1281 | June 29, 2016       Page 1 of 13
                                       Statement of the Case
[1]   Philip H. Chamberlain (“Chamberlain”) appeals the trial court’s grant of the

      defendants’—the State of Indiana; Connie Lawson (“Lawson”), in her official

      capacity as Indiana Secretary of State; and Chris Naylor (“Naylor”), in his

      former official capacity as Indiana Securities Commissioner (collectively, “the

      Monroe County Defendants”)—motion to dismiss his tort complaint. The trial

      court granted the Monroe County Defendants’ motion to dismiss under Indiana

      Trial Rule 12(B)(8) because it concluded that Chamberlain’s complaint was

      substantially the same as a previous complaint that he had filed in a different

      county. On appeal, Chamberlain argues that the two complaints were not

      substantially the same because, according to him, they: (1) did not have any of

      the same underlying factual circumstances; (2) had different defendants; (3)

      were based on different tort theories; and (4) sought different remedies.

      Because we conclude that the complaints were substantially the same, we affirm

      the trial court’s decision.


[2]   We affirm.

                                                     Issue
              Whether the trial court erred when it dismissed Chamberlain’s
              complaint pursuant to Indiana Trial Rule 12(B)(8).

                                                     Facts
[3]   In 2014, Chamberlain filed two pro se complaints—one in Marion County

      (“Marion County complaint” or “Marion County case”) and one in Monroe

      County (“Monroe County complaint” or “Monroe County case”)—against

      Court of Appeals of Indiana | Memorandum Decision 53A05-1507-CT-1281 | June 29, 2016   Page 2 of 13
      various governmental officials whom he claimed had engaged in “ongoing

      tortious and egregious conduct” towards him related to his long history with the

      State of Indiana Securities Division (“Securities Division”).1 (App. 11).


[4]   Chamberlain filed his Marion County complaint, naming Charles P. Williams

      and Kimberly Haskett (“Haskett”) (two employees of the Securities Division)

      and the Securities Division (collectively, “Marion County Defendants”) as

      defendants, in February 2014.2 In this complaint, he asserted that in February

      2012 he had been arrested on a civil writ and detained in police custody for 70

      hours. He alleged that the defendants had conspired to arrange this arrest and

      detention as a result of his history with the Securities Division, which included

      a dismissed criminal case in 2005 and an ongoing criminal securities case that

      had begun in 2008. With respect to the 2008 case, in particular, Chamberlain

      contended that the defendants had used the civil writ “as an ‘instrumentality’ to

      punish [him] for questioning the competency and integrity of the Securities

      Division’s Prosecution Assistance Unit . . . and to dissuade him from filing

      more motions and requesting more hearings, and to generally compromise his

      defense of the [2008] Securities Case.” (App. 145) (emphasis removed). In this

      Marion County complaint, Chamberlain also raised claims of intimidation,

      abuse of process, intentional infliction of emotional distress, and negligent




      1
       Although Chamberlain filed his complaints pro se, he is not a typical pro se plaintiff as he is also an
      attorney.
      2
          On July 10, 2014, Chamberlain then filed an amended complaint.


      Court of Appeals of Indiana | Memorandum Decision 53A05-1507-CT-1281 | June 29, 2016                Page 3 of 13
      infliction of emotional distress based on his arrest and detention. Based on

      these claims, he requested compensatory damages of: (1) $84 in overtime

      parking charges while he was detained; (2) “$100+ in prepaid long distance

      costs;” and (3) “$200+ in fuel and mileage costs.” (App. 153-54).


[5]   Several months later, on October 16, 2014, Chamberlain filed the instant

      Monroe County complaint naming Lawson, Naylor, and the State of Indiana as

      defendants. In this complaint, he raised claims of libel, defamation per se,

      invasion of privacy by false light publicity, intentional infliction of emotional

      distress, negligent infliction of emotional distress, harassment, and tortious

      interference with contractual and prospective business relationships and

      requested damages “in excess of $1 million” and injunctive relief. (App. 84).


[6]   The background for Chamberlain’s Monroe County claims is long and

      complex. Broadly, he included a preliminary statement in his Monroe County

      complaint summarizing that:

              The State of Indiana through the actions and/or omissions of
              various employees working at the Indiana Securities Division []
              has since early-2005, and continuing until March of 2013, been
              engaged in certain tortious and egregious conduct with one, and
              only one, organizational goal in mind: to improperly utilize the
              investigatory and law enforcement powers provided to [the
              Securities Division] under [the Indiana Securities Act] to destroy
              [his] reputation and professional livelihood . . . .


      (App. 11). To support these allegations, Chamberlain recounted several of his

      interactions with the Securities Division over the period of 2005 to 2013.


      Court of Appeals of Indiana | Memorandum Decision 53A05-1507-CT-1281 | June 29, 2016   Page 4 of 13
[7]   For example, Chamberlain described his 2005 criminal prosecution, which he

      had also mentioned in the Marion County complaint. He contended that he

      had been charged because Haskett, an investigator with the Securities Division,

      had “purposely misled the Prosecutor’s Office into filing criminal charges, and

      the Honorable Douglas R. Bridges, Judge into issuing a warrant for [his]

      arrest.” (App. 17). The charges were for offer or sale of an unregistered

      security; transacting business as an unregistered agent; and fraudulent or

      deceitful acts. The Prosecutor later dismissed the charges on November 9,

      2006.


[8]   Next, Chamberlain alleged that he had sent a letter to the Securities Division on

      August 2, 2007, informing the division about multiple people he knew who had

      been victimized by certain loan transactions. According to Chamberlain, the

      Securities Division had not followed up on the information. Instead, Haskett

      had “encouraged the Securities Division to ‘bury’ th[e] letter since it had been

      prepared and sent by the agency’s persona non grata – Philip H. Chamberlain.”

      (App. 21).


[9]   Next in the complaint, Chamberlain recounted his version of the circumstances

      surrounding his 2008 criminal charges. According to him, on May 28, 2008, he

      had been charged with the offer or sale of an unregistered security; transacting

      business as an unregistered agent; forgery; and two counts of fraudulent or

      deceitful acts as a result of short term loans he had facilitated on behalf of an

      Indiana company. In his complaint, he asserted that, as in his 2005 case, “the

      Prosecutor’s Office [had been] duped into bringing the 2008 criminal charges

      Court of Appeals of Indiana | Memorandum Decision 53A05-1507-CT-1281 | June 29, 2016   Page 5 of 13
       primarily to satisfy the ulterior motives of the Securities Division.” (App. 28).

       Those ulterior motives, he alleged, were: (1) the Securities Division’s “anger[]”

       that his 2005 case had been dismissed; (2) to retaliate against him for having the

       “audacity” to request in his August 2, 2007 letter that the agency perform its

       statutory job; and (3) to “right[] [the division’s] only prosecutorial defeat since

       the inception of Indiana Investment Watch.” (App. 28). Chamberlain

       admitted in the complaint that he had eventually pled guilty to an amended

       charge of counterfeiting but claimed that he had done so only because he had

       not had adequate time to prepare for trial. He maintained that he had been

       innocent of the charge despite his guilty plea.


[10]   Next in the complaint, Chamberlain said that he had sent letters to the

       Prosecutor’s Office and the Securities Division on September 24, 2011 and

       October 12, 2011 concerning information about a local Bloomington real estate

       developer who, he believed, had been operating a large, multi-state Ponzi

       scheme. According to him, the Securities Division “took no action, prioritized

       other cases, or simply chose to ‘punt’ this case[,]” in spite of his letters. (App.

       50).


[11]   Finally, Chamberlain claimed in the Monroe County complaint that on March

       1, 2013, the Securities Division had issued a press release on its website

       containing allegations about him that were “materially false.” (App. 63).

       Among other grievances, Chamberlain contended that the division had “[taken]

       credit” for his 2008 conviction, even though it was a conviction for

       counterfeiting, rather than for violating the Indiana Securities Act. (App. 63).

       Court of Appeals of Indiana | Memorandum Decision 53A05-1507-CT-1281 | June 29, 2016   Page 6 of 13
       Chamberlain also claimed that the release contained information that the

       Securities Division had known was false, including information about the

       business transactions underlying his conviction and information taken from his

       pre-sentence investigation report, which was supposed to have been

       confidential.


[12]   On December 22, 2014, the Monroe County Defendants filed a motion to

       dismiss the Monroe County complaint under Indiana Trial Rule 12(B)(8). They

       alleged that the Marion County case, which was in the discovery stage of

       litigation at the time of the motion to dismiss, was substantially the same action

       as the Monroe County case because the two cases “unquestionably involve[d]

       the same or substantially the same defendants[] and derive[d] from a common

       core set of facts, transactions, or occurrences[.]” (App. 132). They also noted

       that all of the actions in both cases sounded in tort.


[13]   On January 14, 2015, Chamberlain responded to the Monroe County

       Defendants’ motion to dismiss. He argued that the two complaints did not

       have any of the same underlying factual circumstances, had different

       defendants, were based on different tort theories, and sought different remedies.

       In addition, Chamberlain contended that neither lawsuit would affect the

       outcome of the other.


[14]   The trial court granted the Monroe County Defendants’ motion to dismiss on

       January 28, 2015. Its decision was based on its reasoning that:




       Court of Appeals of Indiana | Memorandum Decision 53A05-1507-CT-1281 | June 29, 2016   Page 7 of 13
               The named Defendant[s] are not the same in both lawsuits.
               However, [Chamberlain] is proceeding against the State of
               Indiana and its officers and employees in both lawsuits based
               upon one set of closely related occurrences. [Chamberlain] seeks
               money damages from the governmental defendants in both cases.
               [Chamberlain] alleges in both cases that he is the victim of a
               governmental conspiracy against him, arising out of the
               regulation of securities by officers and employees of the State of
               Indiana. It is hard to imagine that a trial of either case would not
               include evidence about the facts alleged in both cases, especially
               concerning the claims of conspiracy and ill will on the part of the
               governmental defendants.

               The similarity of the claims and the predicate facts make double
               recovery a possibility should [Chamberlain] prove his claims.
               [Chamberlain] is making some of the same claims twice.

               If this case is dismissed, there would seem to be no reason why
               [Chamberlain] could not include claims he made in this Monroe
               County case in his Marion County complaint, to the extent those
               claims are not already presented. Defendants should not object
               to any necessary amendment since Defendants have argued in
               their motion to dismiss that the claims in this case are already at
               issue in the Marion County case.

       (App. 8).


[15]   Thereafter, on February 27, 2015, Chamberlain filed a motion to correct error.

       He disagreed with the trial court’s conclusion that he was making some of the

       same claims twice, and he argued that the trial court had erred in issuing an

       order that presumed how the Marion County court would respond if he filed an

       amended complaint in the Marion County case. He also requested a hearing on

       his motion. The trial court held a hearing on the motion on June 2, 2015. At

       the hearing, the Marion County Defendants stipulated that they would not

       Court of Appeals of Indiana | Memorandum Decision 53A05-1507-CT-1281 | June 29, 2016   Page 8 of 13
       object to an amended complaint including the allegations from the Monroe

       County case if Chamberlain chose to file one in Marion County.


[16]   The trial court denied Chamberlain’s motion to correct error on June 8, 2015.

       The court stated that it was “left with the firm impression that [Chamberlain]

       ha[d] structured substantially similar claims against closely related parties to

       enable him[self] to have two bites at the same apple.” (App. 10). Based on this

       reasoning, the court concluded that the two complaints were substantially the

       same and that allowing Chamberlain to maintain the two separate cases would

       “put[] form over substance.” (App. 10). Chamberlain now appeals.


                                                         Decision
[17]   On appeal, Chamberlain argues that the trial court erred when it granted the

       Monroe County Defendants’ motion to dismiss his complaint pursuant to

       Indiana Trial Rule 12(B)(8) based on its finding that his Monroe County

       complaint was substantially the same as the Marion County complaint. As in

       his response to the motion to dismiss and his motion to correct error, he reasons

       that the complaints were not substantially the same because they involved

       unrelated torts that occurred thirteen months apart, were brought against

       different defendants, sought different remedies, were based on different tort

       theories, and were provable with different evidence and witnesses.3




       3
         Chamberlain also argues that the two cases could not qualify as the same action because they required the
       filing of separate tort notices under the Indiana Tort Claims Act. However, we need not address his second
       argument as he has waived it by raising it for the first time on appeal. See DenniStarr Envtl., Inc. v. Ind. Dep’t of

       Court of Appeals of Indiana | Memorandum Decision 53A05-1507-CT-1281 | June 29, 2016                    Page 9 of 13
[18]   As a general principle, when an action is pending before an Indiana court,

       courts in other Indiana counties must defer to that court’s authority over the

       case. Crawfordsville Apartment Co. v. Key Trust Co. of Fla., 692 N.E.2d 478, 479

       (Ind. Ct. App. 1998). This is “‘a matter of policy and practicality in the

       operation of our judicial system,’” because to operate otherwise “‘would create

       confusion and chaos in our trial and appellate courts.’” Bosley v. Niktob, LLC,

       973 N.E.2d 602, 605 (Ind. Ct. App. 2012) (quoting State ex. rel. Coleman v.

       Hendricks Superior Court II, 396 N.E.2d 111, 112 (1979)), trans. denied. Trial Rule

       12(B)(8) implements this principle by allowing dismissal of an action on the

       grounds that the same action is pending in another Indiana court. Crawfordsville

       Apartment Co., 692 N.E.2d at 480. “‘The determination of whether two actions

       being tried in different state courts constitute the same action depends on

       whether the outcome of one action will affect the adjudication of the other.

       Kentner v. Ind. Pub. Emp’rs Plan, Inc., 852 N.E.2d 565, 570 (Ind. Ct. App. 2006)

       (quoting Vannatta v. Chandler, 810 N.E.2d 1108, 1110 (Ind. Ct. App. 2004)),

       reh’g denied, trans. denied. This rule applies and an action should be dismissed

       “‘where the parties, subject matter, and remedies are precisely the same, and it

       also applies whe[re] they are only substantially the same.’” Crawfordsville

       Apartment Co., 692 N.E.2d at 480 (quoting State ex. rel. Meade v. Marshall Superior

       Court II, 664 N.E.2d 87 (Ind. 1994)). We apply a de novo standard of review




       Envtl. Mgmt., 741 N.E.2d 1284, 1289 (Ind. Ct. App. 2001) (“Time and again, this court has determined that a
       party waives an issue if it is raised for the first time on appeal. Generally, only those issues properly raised
       and preserved below may be appealed.”), trans. denied. Instead, we will only address whether the trial court
       erred when it dismissed Chamberlain’s complaint under Trial Rule 12(B)(8).

       Court of Appeals of Indiana | Memorandum Decision 53A05-1507-CT-1281 | June 29, 2016              Page 10 of 13
       when we review the grant or denial of a motion to dismiss under Trial Rule

       12(B)(8) as it presents a question of law. Doe Corp. v. Honore, 950 N.E.2d 722,

       729 (Ind. Ct. App. 2011).


[19]   In spite of Chamberlain’s arguments, we agree with the trial court that his

       Marion and Monroe County complaints were substantially the same. Even

       though, as Chamberlain notes, the defendants in the two actions were not

       exactly the same, the State of Indiana—specifically, the Securities Division—

       was a defendant in both cases.4 In addition, the remaining defendants were all

       employees of the Securities Division (past or present) or affiliated with the

       Securities Division.5


[20]   As for the subject matter of the case, Chamberlain asserts that his two

       complaints concerned different events and did not factually overlap. We

       disagree. While there were separate claims in each complaint, the underlying

       theory behind each complaint was that the Securities Division had harbored a

       vendetta against Chamberlain since 2005. For instance, in his Monroe County

       complaint Chamberlain asserted that employees of the Security Division had

       “duped” the Prosecutor into bringing the 2008 criminal charges against him

       because, among other reasons, the Securities Division had been “angered” that




       4
        The State of Indiana is listed as a defendant in both cases, but Chamberlain clarifies in both instances that
       “State of Indiana” refers to the Securities Division in particular.
       5
        The Securities Division is under the control of the Secretary of State, so Lawson was in control of the
       division in her capacity as Secretary of State.

       Court of Appeals of Indiana | Memorandum Decision 53A05-1507-CT-1281 | June 29, 2016              Page 11 of 13
       Chamberlain’s 2005 case had been dismissed. (App. 28). In his Marion

       County complaint, he again cited the Securities Division’s anger over the 2005

       dismissal as its motivation to have him arrested and detained in 2012.


[21]   In terms of the remedies sought, while Chamberlain seeks an injunction in one

       complaint but not the other, he seeks compensatory damages from the State of

       Indiana in both. Thus, the remedies are substantially the same. See Grand

       Trunk W. R.R. Co. v. Kapitan, 698 N.E.2d 363, 367 (Ind. Ct. App. 1998) (“The

       remedy sought [] in both actions, a money award, would be the same as well.”),

       trans. denied.


[22]   Finally, we find it significant that a ruling in Chamberlain’s favor in the Marion

       County case would affect the facts or issues that would arise in the Monroe

       County case. In essence, the State would be collaterally estopped from re-

       litigating the same facts or issues. See Tofany v. NBS Imaging Systems, Inc., 616

       N.E.2d 1034 (Ind. 1993) (“Generally, collateral estoppel operates to bar a

       subsequent re-litigation of the same fact or issue where that fact or issue was

       necessarily adjudicated in a former suit and the same fact or issue is presented

       in the subsequent lawsuit. In that situation, the first adjudication will be held

       conclusive even if the second is on a different claim.”).


[23]   In light of the substantial similarity between the parties, subject matter, and

       remedies Chamberlain named in his Marion County and Monroe County cases,

       we conclude that the trial court did not err in dismissing the Monroe County

       case pursuant to Trial Rule 12(B)(8) as it was substantially the same.


       Court of Appeals of Indiana | Memorandum Decision 53A05-1507-CT-1281 | June 29, 2016   Page 12 of 13
Affirmed.


Baker, J., and Bradford, J., concur.




Court of Appeals of Indiana | Memorandum Decision 53A05-1507-CT-1281 | June 29, 2016   Page 13 of 13
