RegalDaddy wrote:Plaintiff Scott Wells Wins Counterclaim vs. Bud and Amy Bernitt; Attorney Geoffrey Grodner of MCGB
Court Case of the Plaintiff is proceeding forward
STATE OF INDIANA, LAWRENCE COUNTY, SS:
IN THE LAWRENCE SUPERIOR COURT
Annual Term, 2009
SCOTT D. WELLS
Plaintiff,
vs.
HERMAN BUD BERNITT, individually,
AMY BERNITT, individually,
J.D. MAXWELL, as an employee of the Indiana State Police,
TRAVIS CORYEA, individually, and as an employee of the Indiana State Police,
STACY BROWN, individually, and as an employee of the Indiana State Police,
INDIANA STATE POLICE,
OTHER UNKNOWN EMPLOYEES OF
THE INDIANA STATE POLICE, and
STATE OF INDIANA,
Defendants.
MEMORANDUM AND ORDER GRANTING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
This matter is before the court on Plaintiffs Motion for Summary Judgment
("Motion") on the Counterclaim of Defendants, Herman and Amy Bernitt
("Counterclaim"). The Counterclaim was filed on September 27, 2006, and Plaintiffs
Motion was filed on June 24, 2009. Defendants filed a Response in Opposition to
Plaintiffs Motion for Summary Judgment ("Response") on July 27, 2009. The Court held
a hearing on August 17, 2009 for oral argument on the Motion, which both parties
attended.
The Court, having heard and considered oral argument from both parties, and
having reviewed the moving and opposition documents, now GRANTS Plaintiffs
Motion for Summary Judgment on the Counterclaim of Defendants, Herman and Amy
Bernitt...
III. MEMORANDUM OF LAW
Malicious Prosecution
In his Motion for Summary Judgment, Counterclaim Defendant Wells has
identified portions of both the trial testimony offered by the Bernitts, and the deposition
of Mr. Bernitt, as demonstrating the absence of a genuine issue of material fact, asserting
that he acted with probable cause when he initiated a civil action against the Bernitts.
(Motion, pg. 4.) Wells has sustained the burden of proving the nonexistence of a genuine
issue of material fact using information obtained during discovery and his criminal trial.
Therefore, the burden shifts to the Bernitts to prove the existence of a genuine issue of
material fact precluding summary judgment.
In response to Wells' assertions, the Bernitts argue that the alleged
misrepresentation of factual information in both the trial testimony of the Bernitts, and
the affidavit of Mr. Bernitt, is an "insignificant detail that is not pertinent" to the lawsuit
filed against the Bernitts. (Response, pg. 10.) This Court disagrees, finding instead that
conflicting testimony during the discovery and trial process is sufficient to support the
initiation of a civil claim against one's accusers...
Abuse of Process
Abuse of process is the misuse of legal process to accomplish some ulterior
purpose outside of the proper scope of the process itself. Tancos v. A. W, Inc., 502 N.E.2d
109, 116 (Ind. Ct. App. 1986). It requires proof of the following elements: 1) illegal and
improper use of process by the defendant (in this case Counterclaim Defendant Wells);
and 2) malicious or ulterior motive or purpose employed in the use of process. National
City Bank v. Shortridge, 689 N.E.2d 1248, 1252 (Ind. 1997).
The Bernitts argue that the evidence mustered is sufficient for a jury to conclude
that Wells sued the Bernitts because he "wanted to seek personal retribution against his
political enemies." (Response, pg. 12.) Yet this Court does not agree that a statement
regarding the alleged existence of a long-standing animosity between parties, and the
Bernitts' dependence on previous litigation as evidence of a contemporary malicious or
ulterior motive or purpose is sufficient to establish the existence of a genuine issue of
material fact for the purpose of defeating a Motion for Summary Judgment.
CONCLUSION
For the reasons stated above, the Court does now GRANT the Plaintiffs Motion
for Summary Judgment, finding against Defendants in their Counterclaim.
It is so ORDERED this 10th day of September 2009.
The Honorable Michael A. Robbins
Special Judge, Monroe Circuit Court VI
This was on another thread and should have been linked here.
After reading the postings of Bernitts’ Counterclaim Denial by Judge Robbins Supporting Scott Wells, there is a clear Material Issue of Fact which means in normal court room proceedings there will be a Trial at some point involving the Defendants.
Judge Robbins: Malicious Prosecution
“In his Motion for Summary Judgment, Counterclaim Defendant Wells has
identified portions of both the trial testimony offered by the Bernitts, and the deposition
of Mr. Bernitt, as demonstrating the absence of a genuine issue of material fact, asserting
that he acted with probable cause when he initiated a civil action against the Bernitts.
(Motion, pg. 4.) Wells has sustained the burden of proving the nonexistence of a genuine
issue of material fact using information obtained during discovery and his criminal trial.”
The motivation to get Scott Wells setup and arrested on phony charges by Bud and Amy Bernitt becomes much more obvious after reading the investigative reporting by Steven Higgs and the connection to Developer Steve Smith of Pedigo Bay and the Wells’ Defamation Trial that took place last year where Scott Wells won in a very big way against Kevin Shiftet.
However, I didn’t realize that veteran Indiana State Trooper JD Maxwell was connected to the Kevin Shilfet Defamation Case with Bud and Amy Bernitt as supporting parties in that Wells’ Defamation as well. Oh yes the other standard supporting cabal cast of characters is listed below as well as participants in the Higgs Article in the Bloomington Alternative:
http://www.counterpunch.org/higgs1029.html
BLOOMIGTON ALTERNATIVE: Steven Higgs wrote: “He also has no doubt why Maxwell would target him. Wells recently sued county resident Kevin Shiflet for defamation after he charged at a county council meeting that Wells knew who set the fire at the Pedigo Bay housing development on Lake Monroe. In a 108-page deposition taken in that case, Shiflet "cracked like an egg, and the egg splattered, and part of it landed on J.D. Maxwell," Wells says.
"J.D. Maxwell is clearly one of the active participants in my defamation lawsuit against Kevin Shiflet et al," Wells says. Maxwell, along with other right-wing zealots like Franklin Andrew, Leo Hickman, Richard Wells and Bud Burnitt, were implicated in the deposition, Wells says.
"What's the motive for J.D. Maxwell to go after me?" he asks. "Is it the defamation lawsuit?”
