 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
                                                                      FILED
                                                                   Jun 12 2012, 9:09 am
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,                                 CLERK
                                                                         of the supreme court,
                                                                         court of appeals and
 collateral estoppel, or the law of the case.                                   tax court




APPELLANT PRO SE:                                         ATTORNEYS FOR APPELLEE:

ERIC D. SMITH                                             GREGORY F. ZOELLER
Carlisle, Indiana                                         Attorney General of Indiana

                                                          ELIZABETH ROGERS
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

ERIC D. SMITH,                                            )
                                                          )
       Appellant-Defendant,                               )
                                                          )
                vs.                                       )      No. 46A03-1110-CT-493
                                                          )
STEVE EULER, MELVIN BROOKS, MARTY                         )
SEXTON, and JASON JACOB,                                  )
                                                          )
       Appellee-Plaintiff.                                )


                      APPEAL FROM THE LAPORTE SUPERIOR COURT
                           The Honorable Richard Stalbrink, Judge
                               Cause No. 46D03-1001-CT-21


                                                June 12, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       Veteran pro se litigant Eric D. Smith, an inmate at Wabash Valley Correctional

Facility when this appeal was filed, appeals the trial court’s denial of his motion for relief

from judgment pursuant to Ind. Trial Rule 60 (B)(8).

       We affirm and remand with instructions.

       This is the third appellate iteration of an action that started with a complaint Smith

filed in 2005. Perhaps we should begin there. The underlying facts were summarized in the

first appeal, decided in 2007, which resulted in a decision adverse to Smith. Those facts are

as follows:

               On September 13, 2005, Smith filed a complaint against the DOC,
       alleging that on February 23, 2005, Euler completed an unwarranted conduct
       report against Smith for abuse of mail to cause Smith harm and to retaliate
       against him for the multiple grievances and tort claims he had filed in the past.
       Smith alleged that the abuse of mail regulation was unconstitutionally vague
       and denied him due process and that the DOC failed to provide him with an
       impartial hearing on the allegation. Additionally, Smith alleged that on March
       1, 2005, he was beaten by Sexton, Jacob, and Brooks [officers at the Westville
       Control Unit correctional facility where Smith was imprisoned at the time] and
       suffered injuries as a result of the beating. The complaint includes claims for
       conspiracy to retaliate against him, failure to protect him, use of excessive
       force, and failure to provide proper medical treatment.

              On September 13, 2005, Smith filed a motion for the appointment of
       counsel. Over the subsequent months, he filed a copious number of motions
       covering many different topics, only a small number of which are relevant to
       this appeal. On November 9, 2005, the DOC filed a motion for partial
       judgment on the pleadings. On January 1, 2006, Smith renewed his motion for
       the appointment of counsel. On April 20, 2006, he sought leave to file an
       amended complaint. On June 5, 2006, Smith filed another motion for the
       appointment of counsel. The trial court denied Smith’s motion to amend his
       complaint on September 25, 2006. On April 5, 2007, the trial court entered
       summary judgment in favor of the DOC on Smith’s complaint and found
       Smith’s request for an attorney to be moot, noting that, in any event, he was
       not entitled to the appointment of counsel.

Smith v. Ind. Dept. of Corr., No. 49A02-0705-CV-430, slip op. at 1 (Ind. Ct. App. Dec. 26,

                                              2
2007), trans. denied (henceforth, CV-430). In that case, we affirmed a summary judgment

ruling against him on the original complaint, as well as the denial of his motion to amend his

complaint. With respect to the former, we determined: (1) Smith’s allegations concerning the

abuse of mail regulations and the DOC’s treatment of the conduct report constituted

disciplinary actions of the DOC and were therefore not subject to judicial review; (2) Smith’s

allegations of negligence or other tort claims against employees of the DOC were precluded

by the Indiana Tort Claims Act because government employees acting within the scope of

their employment are immune from liability; and (3) Smith’s allegations that the DOC’s

regulations violated article 1, sections 9, 11, 12, 15, 16, and 23 of the Indiana Constitution

were waived because they were undeveloped or unsupported. As to the denial of the motion

to amend, Smith failed to argue that his federal claims were meritorious or that the

clarifications and added defendants corrected the deficiencies in the complaint and therefore

the amendment would have been futile.

       Round two commenced with Smith filing a motion for relief from judgment pursuant

to Indiana Trial Rule 60(B) and a motion to amend his complaint. Smith sought thereby to

set aside the summary judgment order that was the subject of the aforementioned

unsuccessful appeal and to commence a new action premised upon an amended version of the

original complaint. The trial court denied Smith’s motion for relief from judgment. Having

apparently missed the deadline to appeal that ruling, Smith sought permission to file a belated

appeal, which the trial court granted. Smith filed the belated appeal on June 11, 2009 (No.

49A04-0901-CV-40) (henceforth, CV-40). This court dismissed CV-40 on July 13, 2009,

upon our conclusion that the trial court did not have authority to grant Smith’s motion to file

                                              3
a belated appeal and therefore that we did not have jurisdiction over the appeal.

       The present iteration – round three – commenced on January 13, 2010 with Smith

filing a 42 U.S.C. § 1983 complaint in LaPorte County, Indiana, under Cause No. 46D03-

1001-CT-21 (henceforth, the § 1983 action). The factual basis set out in that complaint is the

same as that underlying each of the appeals described above, i.e., CV-430 and CV-40. On

June 18, 2010, Appellees filed a motion to dismiss or for summary judgment. The trial court

granted that motion on October 14, 2010. Smith failed to timely appeal that ruling, but on

September 16, 2011, he filed a Trial Rule 60(B)(8) motion for relief from judgment. Smith

appeals the denial of that motion.

       Smith contends the trial court abused its discretion by denying his motion to set aside

the default judgment pursuant to T.R. 60(B)(8).

       Upon a motion for relief from default judgment, the burden is on the movant to
       show sufficient grounds for relief under Indiana Trial Rule 60(B). We review
       the grant or denial of a Trial Rule 60(B) motion for relief from judgment under
       an abuse of discretion standard. The trial court’s discretion is necessarily broad
       in deciding whether to vacate a default judgment because any determination of
       excusable neglect, surprise, [ ] mistake [or extraordinary circumstances] must
       turn upon the unique factual background of each case. The trial court must
       balance the need for an efficient judicial system with the judicial preference
       for deciding disputes on the merits.

Mallard’s Pointe Condo. Ass’n, Inc. v. L & L Investors Grp., LLC, 859 N.E.2d 360, 365-66

(Ind. Ct. App. 2006), trans. denied (citations omitted). T.R. 60(B)(8) is an omnibus

provision that allows the trial court to set aside a judgment within a reasonable time “for any

reason justifying relief from operation of the judgment, other than those reasons set forth in

sub-paragraphs (1), (2), (3), and (4).” T.R. 60(B)(8) confers broad equitable power upon the

trial court in the exercise of its discretion. Brimhall v. Brewster, 864 N.E.2d 1148 (Ind. Ct.

                                               4
App. 2007), trans. denied. “The trial court’s residual powers under subsection (8) may only

be invoked upon a showing of exceptional circumstances justifying extraordinary relief.” Id.

at 1153.

       The complaint that Smith seeks to resurrect here is more or less a reincarnation of the

complaint he originally filed in 2005, certainly with respect to the operational facts. What is

the requisite exceptional circumstance upon which Smith premises his request for relief

under T.R. 60(B)(6)? None that we can detect. Essentially, he merely contends that his §

1983 action should be permitted to go forward because the motion to amend filed in early

2006 should have been granted in the first place (e.g., “the reason why [Smith] could not

raise the federal claims [presented in the instant § 1983 action] in the previous case was

because the Marion County Superior Court would not allow him to file an amended

complaint”). Appellant’s Brief at 9. In CV-430, we rejected the argument concerning the

viability of the amended complaint upon the basis that the resulting complaint would have no

more merit than the original, viz.:

       In his amended complaint, Smith clarified his legal claim, added defendants,
       and added federal claims. He has failed to argue on appeal that his federal
       claims are meritorious or that the clarifications and added defendants correct
       the deficiencies in the complaint that we have already described herein. Under
       these circumstances, we find that the trial court did not abuse its discretion in
       denying Smith’s motion to amend his complaint because the amendment
       would have been futile.

Smith v. Ind. Dept. of Corr., No. 49A02-0705-CV-430, slip op. at 4 (footnote omitted).

       In the final analysis, the viability of any grievances Smith might have against

Appellees that are based upon the alleged events of February and March 2005 at the

Westville Control Unit have already been decided against Smith by this court – twice.

                                              5
Today’s decision makes three. “The doctrine of res judicata prevents the repetitious

litigation of that which is essentially the same dispute.” Ben–Yisrayl v. State, 738 N.E.2d

253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164. If an issue was raised on direct appeal, but

decided adversely, it is res judicata. Williams v. State, 808 N.E.2d 652 (Ind. 2004). Because

we concluded in CV-430 that the amended complaint was as meritless as the original, res

judicata prevents us from addressing the same argument again in the instant appeal.

Therefore, the denial of Smith’s motion for relief from judgment stands.

       As a final matter, upon cross-claim, Appellees ask for an imposition of appellate

attorney fees under Indiana Appellate Rule 66(E), which states: “The Court may assess

damages if an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages

shall be in the Court’s discretion and may include attorneys’ fees.” Our discretion to award

attorney fees under App. R. 66(E) is limited to instances when an appeal is permeated with

meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay. Life v.

F.C. Tucker Co., Inc., 948 N.E.2d 346 (Ind. Ct. App. 2011). We use “extreme restraint in

awarding appellate damages because of the potential chilling effect upon the exercise of the

right to appeal.” Gariup Const. Co., Inc. v. Carras-Szany-Kuhn & Assocs., P.C., 945 N.E.2d

227, 240 (Ind. Ct. App. 2011) trans. denied. This sanction is not imposed to punish mere

lack of merit, but something more egregious. Wright v. Miller, 965 N.E.2d 135 (Ind. Ct.

App. 2012).

       Our appellate courts have divided claims for appellate attorney fees into substantive

and procedural bad-faith claims. Poulard v. LaPorte Cnty. Election Bd., 922 N.E.2d 734

(Ind. Ct. App. 2010). In order to prevail on a claim of substantive bad faith, a party must

                                              6
demonstrate that the appellant’s contentions and arguments “are utterly devoid of all

plausibility.” Id. at 738. Substantive bad faith “‘implies the conscious doing of wrong

because of dishonest purpose or moral obliquity.” Id. (quoting Wallace v. Rosen, 765 N.E.2d

192, 201 (Ind. Ct. App. 2002)). In addition to bad faith, recovery of attorney fees under App.

R. 66(E) is conditioned upon proof of “meritlessness, … frivolity, harassment, vexatiousness,

or purpose of delay”. We have defined these terms in a different but substantially similar

context.

        In Fisher v. Estate of Haley, 695 N.E.2d 1022 (Ind. Ct. App. 1998), we considered a

request for an award of attorney fees under Ind. Code Ann. § 34-52-1-1 (West, Westlaw

through legislation effective March 14, 2012), which states:

        In any civil action, the court may award attorney’s fees as part of the cost to
        the prevailing party, if the court finds that either party:

               (1) brought the action or defense on a claim or defense that is frivolous,
               unreasonable, or groundless;

               (2) continued to litigate the action or defense after the party’s claim or
               defense clearly became frivolous, unreasonable, or groundless; or

               (3) litigated the action in bad faith.

I.C. § 34-52-1-1(b). This provision established virtually the same criteria for the same

award, i.e., attorney fees, albeit under a different statute governing a different stage of

litigation. Discussing the meaning of these terms, the Fisher court examined the grounds for

recovery of attorney fees under Ind. Code Ann. § 34-1-32-1(b), repealed by P.L. 1-1998, the

predecessor to the current I.C. § 34-52-1-1 and consisting of precisely the same language,

viz.:


                                                7
       For purposes of awarding attorney fees pursuant to Indiana Code section 34–
       1–32–1, a claim is “frivolous” if it is made primarily to harass or maliciously
       injure another, if counsel is unable to make a good faith and rational argument
       on the merits of the claim, or if counsel is unable to support the action by a
       good faith and rational argument for extension, modification, or reversal of
       existing law. A claim is “unreasonable” if, based upon the totality of the
       circumstances, including the law and facts known at the time of filing the
       claim, no reasonable attorney would consider the claim justified or worthy of
       litigation. A claim is “groundless” if no facts exist which support the legal
       claim relied upon and presented by the losing party. Finally, a claim is litigated
       in “bad faith” if the party presenting the claim is affirmatively operating with
       furtive design or ill will.

Fisher v. Estate of Haley, 695 N.E.2d at 1029. Considering the language and purpose of I.C.

§ 34-52-1-1(b), we conclude that the definitions for the relevant terms as set out above in

Fisher are applicable as well to those terms as used in App. R. 66(E). We note that

“frivolous” and “unreasonable” were defined by the Fisher court partially in terms of what an

attorney might know or do. Of course, we are aware that Smith is not an attorney.

Nevertheless, Smith will be held to the same standards that apply to trained counsel. See

Fisher v. Estate of Haley, 695 N.E.2d 1022; see also Poulard v. LaPorte Cnty. Election Bd.,

922 N.E.2d at 738 (“just as pro se litigants are required to follow all of the rules of appellate

procedure, they are also liable for attorney fees when they disregard the rules in bad faith”)

(quoting In re Estate of Carnes 866 N.E.2d 260, 267 (Ind. Ct. App. 2007)).

       Smith initially filed an action based upon these same operative facts more than six

years ago. He lost at the trial court level and again on appeal. He attempted to cure what he

perceived to be the defects in his case, but again lost below and upon appeal. Undeterred by

those setbacks, Smith persists in his efforts to discover a way to hold Euler, Brooks, Sexton,

and Jacob liable to him. His efforts have produced nothing more than a series of essentially


                                               8
identical lawsuits, each failing for what amounts to the same reason – a fatal flaw in his case

that Smith seems unwilling to acknowledge. The stubborn refusal to accept the futility of his

ongoing legal efforts renders them frivolous. Further, we are forced to conclude that Smith’s

serial attempts to assert claims that have been repeatedly rejected both by trial courts and this

court reflect that his motivation for filing this latest lawsuit was primarily to harass

Appellees.

       We are aware that an award of appellate damages can have a chilling effect on

litigants, but in this particular case, that is precisely the point. Smith has maintained this

cause of action in a manner calculated to require the needless expenditure of time and

resources by Appellees, the trial court, and this court. It is time to put an end to this matter.

Upon our conclusion that Smith’s appeal was brought in bad faith and for purposes of

harassment, we remand to the trial court for a determination of appellate damages to which

Appellees may be entitled pursuant to App. R. 66(E). See Poulard v. Laporte Cnty. Election

Bd., 922 N.E.2d 734.

       Judgment affirmed and remanded with instructions.

ROBB, CJ., and BAILEY, J., concur.




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