Petition for Writ of Certiorari — Leona Stack, et vir, Petitioners v. Menard, Inc.

Supreme Court briefApr 1, 2022

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FILED

OFFICE OF THE CLEF!

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IN THE

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SUPREME COURT OF THE UNITED STATES

LE 6 NA A N 0 Jtorh BS S ificic— PETITIONER^?,)

(Your Name)

vs.

rv\&NiARfr.XhCC. .

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

U,S, C-OURT OF A^P£ArLS £oQ-SFs/mTU C,)Rc.{>tT~rc^& >

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

•IX-L i

PETITION FOR WRIT OF CERTIORARI

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(Your Name)

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(Address)

Sou~ri4 B£^t> /3>\. Uteag-iZot

(City, State, Zip Code)

CxiM)

(Phone Number)

QUESTION(S) PRESENTED

• (1) Did the "construal" by United States Court of Appeals For The Seventh Circuit

in their ORDER of January 10, 2022 amount to a mis-construal by them in presuming

the Petition For En Banc Panel Rehearing by Appellants, Leona and James Stack was

a "motion to recall" court's MANDATE of December 27, 2021?

• (2) Did the ORDER of December 16, 2021 by United States Court of Appeals For

The Seventh Circuit, in its quick response to Appellants' Petition for Panel Rehearing

of December 11, 2021 provide reasonable explanation for its DENIAL?

• (3) Did the FINAL JUDGMENT of November 30, 2021 by United States Court of

Appeals For The Seventh Circuit, which AFFIRMED the November 29, 2021 ORDER

by that court of the decision by the lower United States District Court For Northern

District of Indiana, South Bend Division, provide opportunity for oral argument bv

Appellants, Leona and James Stack?

• (4) Did the November 29, 2021 ORDER by United States Court of Appeals For The

Seventh Circuit, by their "affirmation", sustain the decision of the lower District

Court while disregarding triable facts and evidence given them, and that were

previously presented via Appellants’ Response to Appellees' Brief {September

8,2021), Appellants' Rule 10 - The Record on Appeal (May 12, 2021) and, Plaintiffs'

Appeal (April 8, 2021)?

• (5) Did the OPINION AND ORDER of March 25, 2021 by United States District Court

For Northern Indiana, South Bend Division relating to Defendant's Motion For

Summary Judgment of July 2, 2020 contain triable facts and evidence overlooked,

misapprehended, or otherwise ruled inadmissable bv the Magistrate Judge?

• (6) Did "outside influences" prevail in the March 25, 2021 OPINION AND ORDER by

United States District Court For Northern Indiana, South Bend Division apparent

"reversal", without prior notification to Plaintiffs Leona and James Stack, of

Magistrate Judge's thirty-seven previous day ORDER SETTING TRIAL DATE AND

PRETRIAL CONFERENCE, AND WITH REFERENCE TO CONDUCT OF TRIAL?

• (7) Did the fact that no request for "remand" back to Superior Court of St. Joseph

County of State of Indiana was made within the "legal system" which may have

played a role in allowing for ease of replacement of lawsuit originating attorney who

ultimately abandoned our case, and for an expeditious settlement of original

$125,000 demand?

Leona andJames Stack as they proceed pro se?

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LIST OF PARTIES

(x) All parties appear in the caption of the case on the cover page.

( ) All parties do not appear in the caption of the case on the cover page. A list of all

parties to the proceeding in the court whose judgment is the subject of this petition is as

follows:

RELATED CASES

Leona and James Stack, pro se, v. Menard, Inc. - United States District Court of Northern

District of Indiana, South Bend Division - Cause No. 3:19-cv-310-MGG, Judgment entered

March 25,2022.

* Leona and James Stack, pro se, v. Menard, Inc. - St. Joseph Superior/Circuit Court (State

of Indiana, St. Joseph County) - Cause No. 71D05-1903-CT-000106, moved to United

States District Court of Northern Indiana approximately latter part of June, 2019.

* (See Page 2 thru Page 4 of "Related Cases" for explanation of movement thru this court):

(Page 2 and 3} - Cause No. 71D05-1903-CT-000106, Complaint For Damages filed

March 22,2019 in the St. Joseph Superior/Circuit Court of St. Joseph County.

(Page 4) - Copy of subsequent Order (approximately early September, 2019) from

United States District Court of Northern District of Indiana, South Bend Division setting

Pretrial Conference date, and seeking "consent" from clients to transfer case to

"magistrate judge".

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

4-22

REASONS FOR GRANTING THE WRIT

23-34

CONCLUSION

INDEX TO APPENDICES

APPENDIX A; (As instructed by letter from Ms. Walker of Office of Clerk, this also appears

immediately following “Conclusion"}.

Case No. 21-1628, ORDER decided November 29,2021 by United States Court of Appeals

For The Seventh Circuit, Chicago, it- (Crass reference with "Questions) Presented",

Question No. 4}.

Case No. 21-1628, FINAL JUDGMENT AFFIRMED November 30.2021 by United States

Court of Appeals For The Seventh Circuit, Chicago, IL- (Crass reference with "Question^)

Presented", Question No. 3).

Case No. 21-1628, NOTICE OF ISSUANCE OF MANDATE December 27,2021 by United

States Court of Appeals For The Seventh Circuit, Chicago, IL -(Cross reference with

"Questions} Presented”, Question No. 1).

Cause No. 3:19-cv-31G-M6G, OPINION AND ORDER filed March 26,2021 by United States

District Court Northern District oftndiana, South Bend Division - (Cross reference with

"Questions) Presented", Question Nos. 5 and 6).

Appendix A

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APPENDIX A: (Page 2}

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Cause No. 3:iS^5itMn€6, GiwEn SETThNG TRIAL DATE AND RMAL P&01UAL

CONFERENCE, AND WITH REFERENCE TO CONDUCT OP TRIAL filed February IS, 2021 by

United S^ss £fetrktXc«Frt

K5tT»ct0flr«jKan3;South Bend Division-(Cross

reference with "Questions) Presented", Question Nos. 5 and6|.

Case No.21-I628,GRDEfVnOn€Oi^iderai3on oftbe petition for rebearing", dated .

December 16,2021 by United States Court of Appeals For The Seventh Circuit Chicago,

IL — (Cross reference with "QuestionCs} Presented", QuesbonNo. 2).

Case No. 21-1628, ORDER, on APPELLANTS P£HTiGN FOR 01 BANC PANEL REHEARING,

dated January Mt 2022 by UnitedStates Court of Appeals For The Seventh Circuit,

Chicago,lL - (Cross reference with "Questionfs} Presented", Question No. 1).

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Appendix A fPaee 21

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TABLE OF AUTHORITIES CITED

PAGE NUMBER

CASES

STATUTES AND RULES

B-

OTHER

N c?

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

00 For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix . /K__to

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

0<3 is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

A__to

[ ] reported at

I or,

[ ] has been designated for publication but is not yet reported; or,

D4 is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix_____ to the petition and is

; or,

[ ] reported at

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the_

appears at Appendix

court

to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

JURISDICTION

[ ] For cases from federal courts:

The date os which the United States Court of Appeals decided my case

was MAtfgmBgR 3$

[ ] No petition for rehearing was timely filed in my case.

[ ] A tamely petition for rehearing was denied by fee United States Court of

Appeals on fee following date: PEC.J4t3<£P &h» tM&cg&md a copy of the

order denying rehearing appears at- Appendix —A—„

[ ] An extension of time to file the petition for a writ of certiorari was granted

(date)

(date) on

to mid including--------in Application No. —A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which fee highest state court decided my case was

A copy of that decision appears at Appendix---------[ ] A timely petition for rehearing was thereafter denied on fee following date:

_____________

, and a copy of the order denying rehearing

appease at Appendix--------- [ ] An extension of time to file the petition for a writ of certiorari was granted

(date) in

(date) on

to and including-----Application No. —A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fourteenth Amendment of The Constitution of The United States of America Section 1 states:

"All persons born or naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws."

The question of "deprivation" of born citizens, and Petitioners pro se, Leona and husband,

James Stack of property, without due process of law is the main issue put forward with

this Petition For Writ of Certiorari.

STATEMENT OF THE CASE

On Nov. 7,2018, Leona Stack accompanied by husband James Stack visited the Menard,

Inc. store in Mishawaka, IN in order to do their monthly shopping at that particular

location. After traversing several aisles within the store to make selective purchases, James

Stack, with their solitary shopping cart, visited the bird feed aisle while Leona Stack walked

beyond his line of sight to visit the Christmas display area in search of an appropriate door

display - area approximately 20 feet away. Mr. Stack's shopping was interrupted by a

distressed call of his name by his wife, Leona Stack. With shopping cart containing various

purchases, James Stack hurried to a scene where he viewed Leona being helped by an

unknown woman shopper to her feet after having tripped over what, after surveying the

scene, appeared to be a recessed overlayment of 1/8"-1/4” vinyl plank flooring in the

aisle where when approached at an angle by Leona, whose attention had focused on a

candy stick door ornament at the immediate end of that aisle, caused her to fall. In what

appeared to be a pain induced traumatic state, Leona Stack stated that "I tripped and fell

over something." She contended that she never saw what she tripped over because she

was in the process of reaching for the display item which she was interested in

purchasing.

Immediate assistance was called for by James Stack for a manager in that Leona was in

great pain, subsequently proven at the St. Joseph Regional Medical Center in Mishawaka,

IN to be two fractures of her pelvis and a fractured right elbow. While awaiting the

assistance of a store or department manager, Leona was able to stand only with the

support of the shopping cart James Stack had brought with him. The woman who assisted

her to her feet until Leona’s husband arrived left the scene. It is unknown if the woman

viewed her fall. It is also unknown if any security cameras were in the area that might have

recorded her fall. During the rime that a manager- name unknown - had arrived with a

wheelchair, husband James Stack observed that there appeared to be a slight buckle

(bulge) in the recessed vinyl plank material approximately at the point where her right foot

came in contact with the overlayment of flooring. (Photos taken by Michael Stack, son of

Leona and James Stack, the afternoon of the following day, Nov. 8,2018, bear this out

although it was never determined that the "buckle" was a cause of the trip fall incident or

if the "buckle" was caused by Leona's right foot coming into contact with the recessed

vinyl plank material). In either case, the cause of Leona Stack's trip-fall injuries was

determined to be the unprotected edge of recessed overlayment of l/8"-i/4" vinyl

plank material - which the "buckle” was or became a part of - installed as a display item

in a Christmas Holiday aisle, which was at a right angle to a main aisle of the Menard's

Mishawaka Store, on Nov. 7,2018. At no time did either Leona Stack nor husband James

Stack observe any warnings of elevation change or any potential trip hazards being present

in the Christmas Display area on Nov. 7,2018. Neither were transition strips, notably

displayed in the Flooring Dept, of the Mishawaka, IN Menards Store, which might have

been used to deter tripping, noticed tobe present on Nov. 7,2018.

Within 5-10 minutes after the approximate 1:25~1:4GPM trip-fall incident occurred on

Nov. 7,2018 a manager arrived with a wheelchair. Leona Stack was asked if she wanted an

ambulance to be called by the manager. Between usiffia Stock and James Stock it was

decided that they were within 5-10 minutes driving distance from Mishawaka's St. Joseph

Regional Medical Center Emergency Room. They declined the ambulance and decided (by

James Stack) to transport Leona via their private vehicle. Leona Stack was carefully placed

in the wheelchair and wheeled to the store's Service Desk wherein an accident report was

presumably to betaken. James Stack went to the "check-out" area to payfortheir'

purchases; then, to collect Leona in order to wheel her out to the car with the assistance of

the unknown manager. Leona Stack has but a vague recollection of what transpired

while at the Service Desk at Menards of Mishawaka following her trip-fall incident owing

to die pain and trauma she was suffering. She did not receive a copyerf any incident

report nor has dear recollection of having signed any such form. Somewhere during the

process a business card carrying a daim number and the name Gallagher Bassett Services,

Inc. was provided. Leona Stack arrived at the hospital at approximately 2:0S-2;15PM on

Nov. 7,2018 from where James Stack immediately telephoned Gallagher Bassett Services

to report the incident.

Leona Stack was taken directly to Emergency at the hospital. Subsequently, after a

series of X-Rays were token and treatment received, she was admitted to the hospital at

approximately 10:00PM on Wednesday, Nov. 7,2018 for a two night stay. Late in the

afternoon of that day James Stack received a return cellphone call from a Ms. Monika

Walker of Gallagher Bassett Services. He related to her what had transpired at Menards of

Mishawaka earlier that day. James Stack also advised her that he'd seen a "slight buckle

in whatever floor material edge" over which Leona Stack had tripped. The phone call was

terminated shortly after additional particulars were given Ms. Walker. (Subsequent to this

telephone conversation between James Stack, Plaintiff, and Monika Walker, Senior

Resolution Manager at Gallagher Bassett Services, Inc, two letters, both by Ms. Walker

directed and dated Nov. 19,2018 to Leona Stack, Plaintiff and Claimant, and to Foley

and Small LLP, plaintiffs' attorney atthattime dated Nov. 26,2018 were received. Both

letters professed “negligence on both parties"}. The following early afternoon, Nov. 8,

2018, James Stack accompanied by son, Michael Stack, returned to Menards of

Mishawaka, IN in order to take photos of the trip-fall site and surrounding area.

Previously, on the day of the accident, Nov. 7,2018, James Stack had expressed a desire

to take some photos of the site, particularly stnf» the vinyl plank flooring overiayment

was recessed from the main aisle and seemed to have questionable purpose. The

manager who'd assisted Leona assured him that to photograph was OX; however, also

stated that security cameras in various areas of the store should have recorded her tripfa!!. To be on the safe side photos were taken by Michael Stack and witnessed by James

Stack the following day on Nov. 8,2018. It is important to note here that upon returning

to the Christmas Display area of the store for photos, James Stack discovered that a

"warning pylon" had, somewhere within the 24 hour period since the trip-fall incident,

been placed In the area - however, in the aisle adjacent to where Leona had suffered her

injuries, namely the "wrong aisle."

STATEMENT OF TOE CASE (As relating to Page 1 of "Question(s) Presented", Nos. 4 & 5).

To:

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

LEONA STACK, eta/.,

(

)

Plaintiffs,

(

{

CASE NO. 3:19-CV-310-MGG

)

MENARD, INC.,

(

)

Defendant

(

APPEAL

COMES NOW PLAINTIFFS LEONA STACK, pro se, and JAMES STACK, pro se,

in order to file their APPEAL to the Court's "OPINION AND ORDER" of 25, March 2021

for reason that the Plaintiffs contend THERE ARE TRIABLE ISSUES OF FACT WHICH

REMAIN FOR A JURY TO DECIDE.

INTRODUCTION

The Plaintiffs fully realize that it is not for the Court to have to "dig*' for evidence

previously submitted to both the Court and to die Defendant that may not have been

properly explained by the Plaintiffs. - Plaintiffs Leona and James Stack, representing

themselves for lack of being able to secure legal representation; and, being severely

limited in their legal expertise concerning their cause have had to rely upon the cautionary

latitude extended, andfatty appreciated, them by the Court. - Within this "cautionary"

period Plaintiffs have agonized through several periods of delay, at least two of which

included extending "teleconferences" over nearly a five month period. - Particularly, we

now refer to a Court ordered Sept 10,2020 "teleconference” during which time

Magistrate Judge Gotsch, informed the parties to the "teleconference" that he was

desirous of having additional time to "review the entire case." Though exasperated by

further delay until December, 2020, Plaintiffs were encouraged that a "review" was to take

place. Meanwhile several more fruitless attempts were made by the pro se Plaintiffs to

secure legal representation. - It appeared as if the pending Defendant's “Summary

Judgment Motion" ruling hanging over Plaintiffs' heads at that time was tiie "poison pill"

reluctant for any attorney to swallow.

This being offered as an "introduction" as to what we believe to be the succeeding

correct rationale in pursuit of a favorable Court response to our APPEAL, we will proceed

with additional explanation of Plaintiffs' July 27th, 2020 filing of NON-MOVANT

RESPONSE, IN ACCORDANCE WITH FED. RULECtV. PROC SUMMARYJUDGMENT 56 AND

LOCAL RULE 56-1, TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT (filed with the

Court on July 2,2020).

NON-MOVANTT RESPONSE SUBMISSIONS OF FACTS AND SUPPORTING EVIDENCE

(Taken from evidentiary copies enclosed with Plaintiffs' NON-MOVANT RESPONSE to both

Court and to Defendant, Menard, Inc. Counsel)

(1) Statements from the then enclosed "Notarized and Plaintiff signed Affidavit":

- "after having tripped over what - after surveying the scene - appeared to be a recessed

overiayment of 1/8“ -1/4" vinyl plank flooring in the aisle where; when approached at an

angle by Leona, whose attention had focused on a candy stick door ornament at the

immediate end of that aisle, caused her to fail."

- "}n either ragg, the cause of Leona Stack's trip-fall injuries was determined to be the

unprotected edge of recessed overlayment of 1/8" -1/4" vinyl plank material (which the

"buckle" was, or became a part of) installed as a display item in a Christmas Holiday aisle,

which was at a right angle to a main aisle of the Menard's Mishawaka Store, on Nov. 7,

2018.

(2) Statement from the then enclosed "From Plaintiff, Leona Stack, Interrogatories

answers submitted Nov. 18,2019" (From Question No. 3 relative to nature of what was

the alleged cause of Plaintiff Leona Stack's "trip-fall" incident. - The identical written

response by Plaintiff later appeared in the taking of her deposition on June 4,2020. The

deposed was then responding to a question posed by Counsel for Defendant, Menard,

Inc.):

- ANSWER: "Vinyl Plank elevated approx. 1/8" -1/4" above floor approx. 5 ft. wide and

recessed 3-4 inches from main aisle - (photo enclosed)."

(3) Statement from the then enclosed "From Plaintiff, James Stack, Interrogatories

answers submitted Nov. 18,2019" (From Question No. 27 relative to description of how

accident occurred):

- ANSWER: "(See enclosed photo of area of trip/fall. Photo was taken approximately 24

hours after incident. Photo annotated with details of accident (trip/fall) - Details of trip/fall

incident orally transmitted to Monika Walker of Gallagher Bassett on 11-07-18 at

approximately 6:00-7:00 PM by James Stack, Husband."

(4) Statements taken from the then enclosed "From Defendant, Menard, Inc.

Interrogatories answers submitted Feb. 18,2020" (Areas of evidential significance have

been underlined by Plaintiffs)."

- QUESTION NO. 8: "What was the purpose of the overlayment of what appeared to be

vinyl plank in that particular area (Christmas Display area)? - were there other areas in the

store that had simiiarily placed overlayments of vinyl plank materials? If so or not, what

made the area of trip-fall special?" - ANSWER: "The vinyl plank flooring was installed for

display purposes. There are not any similarly placed overlayments of vinyl plank in the

Hardware department."

- QUESTION NO. 6: "Was Merchandising direction in affect? - Was a planogram in use to

complete any seasonal set? - Does the store in which the trip-fall occurred follow a

corporate wide uniform display direction? - Do local stores have the OX to "tweak" home

office display direction?” - ANSWER: "Objection, interrogatory number 6 is vague and

ambiguous as to "merchandising direction" and open to interpretation, A planogram

was not used. The Mishawaka store followed the corporate installation directions. Local

stores are not allowed to deviate from design plans provided bv the corporate office.

Map and Detail Pages of the area will be disclosed upon entry of a stipulated Protective

order."

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- QUESTION NO. 11: “By whose direction was the overlayment installed? - Why was the

installation of what appeared to be vinyl plank overlayment on tide aisles recessed several

inches from the main aisle? - Was sufficient "line of sight” visual opportunity considered

from all angles of approach?” - ANSWER: "The Menard, Inc. corporate office. If set to

plan, the vinyl planking is not RECESSED and lines up with the main aisle."

- QUESTION NO. 15: "Are there other display areas nearby where the trip-fall took place

that are ovedayed with material other than vinyl plank, such as carpeting, area rugs, etc. of

a similar thickness to the vinyl plank in question? - If so, are they protected by safety strips

(such as transition struts)? - and if they are, what makes them unique from the

unprotected vinyl strip material?" - ANSWER: "There is carpeting in the display

showroom under the mezzanine approximately 6 feet away from the vinyl plank, and

two carpeted promotional squares about 6 feet in front of the vinyl plank display area*

The

has a rubber trim installed around the perimeter."

(5) Excerpts from "Letter dated Dec. 18,2019 from Plaintiffs pro se, Leona and James

Stack, to all case parties involved, which detailed object of cause of "trip-fall" claim and

"negligence" by Defendant, Menard, Inc. - Significant areas underlined. (This letter later

became the subject of a demand that we not again directly contact parties connected to

the Defendant, nor to the Defendant themselves. - The demand was made by Defendant

Counsel, Jane Callies, later to be agreed to by Plaintiffs in keeping with what they thought

to be "good faith" and proper legal ethical procedure):

- "Several months ago, on Nov. 7,2018, Leona Stack suffered a ‘trip-fall' incident at your

Menards Store in Mishawaka, IN, She tripped while approaching an attractive 'peppermint

stick' door ornament upon which her attention was focused. What caused her to trip was

an over-layment of the floor surface in the store’s Christmas Display Dept, with an

approximate 1/8" thick Vinyl plank.’ The plank had been installed as recessed

approximately 4" from a main store aisle so as to form a short display aisle of

approximately four and 1/2 to 5 foot width. The recessed edge of the Vinyl plank1 was fully

exposed without the benefit of a 'transition strip', or warning of elevation change which

would imply caution or potential 'trip hazard".

- The enclosed photos show both -1.) that the 4" recess of foe 'vinyl plank' minimized the

claimant's opportunity to recognize a potential trio hazard when approached, not directly.

but from an angle wherein she favored the right side if the main aisle as she walked

toward, and focused, on die ‘peppermint stick' door display hanging approximately 36-40"

above the floor surface - and at the end of the short display aisle. - 2,) that there appears

to be a slight buckle in the Vinyl plank1 over-layment close to where the claimant's right

foot came in contact with the exposed edge of the 'vinyl plank.' This 'buckle* was reported

to Ms. Monika Walker Senior Investigator for Gallagher-Bassett the same afternoon of

Leona Stack’s injury."

Albeit a Court extension of the "teleconference" of September 10,2020 was made in

order that a “review” of the case could be made by the Court, Plaintiffs Leona and James

Stack find absolutely no "investigative reference" to the "recess installation" as a

potential cause of the trip-fall "vinyl plank” material In this Court's latest "Opinion and

Order*” - Likewise, we have received no response from the Defense parties previously

contacted relating to the same matter of "recess installation.” - Other than what

Defendant Counsel advised as "appropriate answers" given by Defendant in tiieir

Interrogatory response relating to the "recess installation", the Defendant has

studiously avoided the subject in their entire presentation of material constituting their

filing of "Motion for Summary Judgment" on July 2,2020.

At this juncture, Plaintiffs Leona and James Stack again remind both Defendant,

Menard, Inc. and the Court that they have no iasie with the use of the “vinyl plank"

material by Menard, Inc. in that it appears as if the material in question is within thickness

safety standards for installation.

Plaintiffs' issue is with the method of "recessed installation" which impeded the view

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of Leona Stack as she approached from an indirect angle the "recessed" vinyl plank

overiayment of flooring, a flooring neve* foottraveled op^ by her^ piyyto have been

tripped by and tohave fallen upon. - Plaintiffs regard die Menard corporate prohibited

deviation in installation from corporate direction as evidence of neglect, and failure of

the local Mishawaka Menard Store to properly protect their customer. - The fact is that

by “recessing" the vaiyi plank materia! from a main store aisle, Menard's actually

created a safety hazard.

(6) Statements taken from the then enclosed "From Plaintiff, Leona Stack, Verified

and validated' Deposition taken on June 4, 2020. {Verification and validation* by Plaintiff,

Leona Stack, was made subsequent to the filing by Defendant Counsel of their "Motion For

Summary Judgment" in which yet to be verified and validated information was presented

as evidence by the Defendant:

(From Page 28, line 14-15, by Defendant Counsel Jane Callies, of Leona Stack Deposition

of June 4,2020) - Q. Is it fair to say that you were not looking where you were walking? {From Lines lfr-23 wherein objection was made to question unanswerable with simple

'Yes" or "No") - "MR. STACK: I object to that. Answer the question. - MS. CALLIES: For the

record, you can state the basis of your objection, but you go ahead. Well, for the record,

it's inappropriate to be making - for a non-attorney to be malting an objection, but Lee,

you can go ahead and answer the question. - {The question was then re-slated by MS.

CALLIES) - Lee, were you looking where you were walking? - (Line 9-10, Page 29 reply by

Leona Stack) - A. I was looking at the tiling hanging there on the wall. - (Lines 11-13, page

29) Q. All right. Were you tooking at the floor where you were about to step? A. No, I

did not look at the floor.

From that point forward, and at spaced intervals designed to cause Plaintiff, Leona

Stack to possibly alter her responses, Defendant Counsel asked no less than ten

questions concerning "the floor." - (The presumption therein being made that "the floor"

represented the display area of "vinyl plank" overiayment, as it had already been

ascertainedthatLeona Stack was well aware of the main aisle flooring as she moved at an

angle toward the intersection of visually impeded recessed “vinyl floor" material and

straight line main able flooring). - Each of the strategically placed questions by Defense

Counsel relating to "the floor" were replied to by the Plaintiff, Leona Stack, in a

consistent manner that she did not see nor insnect the “the floor" before, during, or

after her trip-fall incident of Nov. 7,2018. - Again, her only physical contact with "the

floor" came when she tripped on its unprotected and elevation change unidentified

edge to land with traumatic force onto "the floor."

Beginning with Line 8, Page 90 of Deposition of Leona Stack, June 4,2020 through Line

10, Page 110; and, beginning with Line 6, Page 114 through Line 19, Page 116 was

represented "Cross-Examination" and "Recross Examination" by Plaintiff, representing pro

se for Leona Stack, James Stack. - Other than to "go on record" to protest the

representation of James Stack as pro se Counsel during the Deposition taking of Leona

Stack, the Counsellor Defendant chose to ignore any of the testimony made by either

Deponent Leona Stack or her pro se"cross examiner" James Stack in her filings with the

Court as to actual "Motion For Summary Judgment" and reasons therefore.

- (Lines 25, Page 93 thru Lines 1-16, Page 94) Q. All right. Now, what - when you

proceeded toward the aisle in which you saw the Christmas decoration hanging, how did

you proceed toward it; at a direct route or at an angle?- A. At an angle. I was in the main

aisle.- Q. Would you say you were close in the main aisle and that decoration was at

exact-. A. Right on the end. -Q. Right on the very end of the aisle. What was -were

you at any time looking at the floor as you were, or were you looking at the decoration?

- A. I was looking at the decoration. - Q. Did you see any change in elevation — A. No. Q. — in the floor? - A. No, because 1 wasn't looking at the floor.

- (Lines 19-25, Page 97 thru Lines 1-9, Page 98) Q. All right. Then you proceeded to the

hospital. Would you say at any time between the time that you fell and got up that you

realized, or that you had seen what caused your fall? - A. No. - Q. Did you see what

caused your fall? - A. No. 1 did not. - Q. Did you at any time see any kind of warning that

would warn you of a change in elevation — A. No. - Q. — or anything? Was there

anything in that aisle that would say, or any other aisle — A. No. - Q. —that would

indicate that there was a possible, potential trip hazard? - A. There was nothing that I

saw.

(7) Statements taken from the actual (not previously enclosed) Deposition of Plaintiff,

James Stack immediately following the Deposition of Plaintiff, Leona Stack, on June 4,

2020. (As in the case of Leona Stack, in which Deposition was taken within 24 hours

subsequent to the filing by Defendant of "Motion For Summary Judgment" in which - yet

to be verified and validated information by Plaintiff - was presented as evidence by the

Defendant {Sgni^rant CTiience'undertineil: -A SiOS ,V .vo.1 io trtabi :ni Pd-qm >.*r\ v>f.s

fr.aoinu o/icrb f'C’Zbvji': bn* belst 'onqnu ,v*

• v * J; j 1 ■ , *■ r/1b;j ":Ob

- Unes22-25,Page Stimi lines 1-25, Page9 and 1^*7,

,$!/&**,&J jVs ^

a photo and there are notes «d! over it Pint of ^l, did

take Ae photo? - A. It was

taken by Micfiae? StacC

tot pK^ 2

- ^ It was taken on November 8/20183

A. Yes, -€t

at approximately, I am going to say mid-afternoon, ? dittoes this phdto arairately

reflect the scene

a y2$ it

it?-A. Yes.-

sfe-'i’Jai j;^«h&'yfefe«a,padhtiiattHere- i

£$?§&

Xm ^atSV-w-Y^ -'oresP

you provide that to me, please. tAxnYes. t can't, birt from my sqnJ ran^ ^ YouMn get a

copy of it though, right? - AbYes-- - Q. And you have my cont

me/COfTectP^A: Yesins ns, 3A 1 -Tolgnn ne t& 10 9*001 naiib s ie ;ti biswo. Cjs'kit, joy

‘b HEM r:0lJ6t059b ISfll bne O'^ifc Oiaffl

n? 920b'919W uCty ysc UGV hltnjVV .£• - -J'U.

9 i9v7 - K(jw teHW .eieic srti to bne yiuv srlS r.o MgiH 0 • hr - 9<k ito/dgif* A

I 3*9

r n (8)> Statements takeh from the then enclosed " Letter dated April -23, 2019 received by^

second p revious attofney,‘ Daniel Pfeifer, of> Pfeifer, Morgan & Stesiak/'jfrom H. Richafd| a Hicks, P.E, of Hide & Nogan Expert Consulting Services;- with pertinent documentation.. ,p

gleaned from The Internet and in support of rite installation of 'transition strips (a.k.a.floor

6nw yu

us5Y nsr..*

j»a p \<&£• l 'v',; .nrll.Tt

.<?.vcPr ?v

trim, floor reducers); and, annotated photo of placement of warning pylon subsequent to

Plaintiff, Leona Stack, trip-fall incident of Nov. 7,2018.'*- (Mr. Hick's tetter was in response

str'U Vti< £t'/ Q.u .*)- 0*‘ ' ' VIS? I0OV tlS?.'-£3 tnf*?F 1.LiC>V fed; 1 >. ! "S'b.Si

to a request of April 17,2019 from Daniel Pfeifer wherein Mr. Pfeifer had enclosed photos

.1. 7

u/uni* '■-fib

9mu yns JS UO’ ShQ .0 4oVi‘*. * C/» . .A ' cJ«*»\lUfW.bfU S5

of the trip-fall area .where Leona Stack had suffered serious injury, and a sample of the

"■•'mi -ovi/ '.gnmiyufi \C — %J - O'.'i A — «

«: eg ,?irb <5 k;

bit'.. 7

"vinyl floor!ne”,upon which she had fallen after tripping on the unprotected edge of the

1 'itu-JS 5f.r.j ■ >j - .vir, .a siyss

*0 t*ibi fchio.,' a:i

Jem n.

mar«?=! aSterafifarrt: areas a£^r«n^r qnJ

lsw 915rt,

- "I have reviewed the materials you sent relative to Mrs. Stack's November 7,2018 fall. „

at a Menards store in which she tripped on the vertical edge of some temporary flooring

(Mohawk Home Expressions floating vinyl plank)."

'it! !i‘ ;Q to tlO’Jii-OC,

t,0‘

‘ :tj--i‘. .AC1 :

‘ 'Sv,

/ “»0*d iXS,-

- 'Th?.tSmR?ranf.floorin|ha^ teenpbced overthe regular tile floor <" Chrirtmas ^

display aisles, WWte tte.tem^orary flcmnng proyided a ^Werarvt mlpred floor surface in

the Christmas dispJay aisles, it would not seem that it served any necessarv.func^iQn.

- "The temporary flooring used is typicaliy used to cover entire rooms. There. are >

t .

edge/transition pieces available that might reduce the possibility of tripping on the edge.

- Anything in a pedestrian area and that can restrict and interfere with the movement

of a pedestrian's foot is a trip hazard. A fundamental concept of safety is:

1. Do not create a hazard for, eliminate the hazard)

2. If a hazard must be created, or cannot be eliminated, then guard

against the hazard.

3. If a hazard must be created or cannot be eliminated, and it can't be

guarded, then provide effective warnings against the hazard.

- It is mv understanding that no warning cone was provided until after Mrs. Stack's fall.

When taken in concert with the explanation of evidence herein provided by Plaintiffs

Leona and James Stack and elaborated upon in the labeled "Items 1 thru 4", particularly

"Item 4" Interrogatory Responses by Defendant, Mr. Hide's expertise in Investigation

(solicited and paid for by Attorney, Daniel Pfeifer) is valuable in sustaining Plaintiffs'

contention that "triable evidence exists" that warrants a jury review and subsequent

decision thereof. - Particular attention should be given to the "three fundamental

concepts of safety" wherein Menard, Inc. actually created a hazard by their corporate

unauthorized "recessed installation" of the "vinyl plank" overlayment of flooring;

thence to neglect to guard against or "warn" of the hazard they'd created.

As to the placement of a warning cone within 24 hours of Leona Stack's trip-fall; fully

noted in Plaintiff James Stack's "Item 7" Deposition response; in "Notarized Paintiff

Signed Affidavit”; and, in Mr. Hick's letter of April 23,2019 - the question begs to be

answered, "Why, if but to acknowledge tire existence of a safety hazard that caused

injury to a customer (Leona Stack) scant hours before, would Menards of Mishawaka

have placed a warning cone (albeit hastily placed in the wrong aisle) in their Christmas

Display area?? - Are Plaintiffs Leona and James Stack to be denied due process of being

able to ask this question of Menard Management by the Court's dismissal of their case??

Plaintiffs need also call attention to an erroneous statement appearing on Page 15

of the Court's "Opinion and Order" of March 25,2021 under topical heading

"Professional Engineer Letter" - (second paragraph of Page 15) - however* in the aisle

adjacent to where Leona had suffered her injuries, names the wrong aisle. - The proper

word, as appears incur "affidavit", should be namely.

(9) Court's ruling regarding "Letters dated Nov. 19th and Nov. 26,201S from Monika

Walker, Senior Resolution Manager, Gallagher Bassett Sendees, Inc:

Plaintiffs find the Court's ruling as to the inadmissibility of Ms. Walker's letters that

Indicated she "found nef^figence on both parties* to be baffling. Citing the Court's

"opinion" as seen on Page 12, Paragraph One, under topical heading "Claims

Administrator Letters" - "Ms. Walker indicated in both letters that she 'found negligence

on both parties.' IDE48-1 at 23-241. She further stated that Mrs. Stack was barred from

recovery because of Indiana's comparative negligence standards [id}. The Stack's cite to

Ms. Walker's tetters as evidence that Menard was negligent. However, Ms. Walker's letters

are inadmissible heresay that must be disregarded here." - The presumption by the Court

is that Plaintiffs cite her letters as being "offered to prove the truth of the matter

asserted,”- This was not the intent of of the Plaintiffs so much as that they were

attempting to "dis-prove" that Plaintiff, Leona Stack, was in any way "negligent" and

hoped that this might be left for a Jury to decide. - Being ignorant as to the

circumstances that resulted in the movement of our case from Superior Court to District

Court, and that It may have been possible for our attorney to seek "remand' back to

Superior Court wherein Plaintiff, Leona Stack would have had the opportunity to view

whatever fabricated evidence pointing toward her "negligence"; more importantly, to

which she might respond in front of a jury, now results in the denial to her of "due

process."

j ;

The stigma left by the Court's decision that, "Heresay evidence is inadmissabie on

summary Judgment to the same extent as It would be at trial", coupled with the totally

unsubstantiated claim by an "investigative asset" of the Defendant has had a profound

negative effect on Mrs. Stock's health, both physical and mental, since the now twentynine month old ordeal began. - Plaintiffs strongly disagree that Ms. Walker's letters

constitute "heresay" as the Court interprets it.

■

“

(10) Failed Mediation of July 3,2020 arid Plaintiffs Mofioo For Relief Prom Cost of

Mediation;

Plaintiffs will honor their contractual commitment with Michael Scopelitis. We will

)S\

attempt to set up a payment schedule with him within the next seven days (from April 7,

2021) and hope to pay off our obligation within the next 12 months.

Plaintiffs Leona and James Stack would be derelict in not maintaining that the entire

Mediation procedure was a “sham" with the sole purpose of the Defendant being to

demonstrate to the Court their “willingness" to abide to the Court's encouragment for

“settlement" as opposed to jury trial. - It's to the Defendant's convenience that

"mediation" proceedings are not admissable in Court; however, being that this recent

"Opinion and Order" contains statements relating to the "failed mediation", with

specific reference to Court statements found under topical heading "Plaintiffs' Motion

For Relief From Cost of Mediation IDE 431. Plaintiffs' comment is invited" - i.e. "The

Stack's arguments here are misplaced. Menard's participated in the mediation as this Court

encouraged.jSee DE13 at 21. Menards followed the order of this Court to have a

representative with sufficient settlement authority attend the mediation.fSee DE13 at 21. Plaintiffs dispute the "introduction" by the Defense Counsel, Jane Calties, of a mediation

attending "health representative" (name unknown) as a person "with sufficient

settlement authority." Plaintiffs also question the following statement made by the

Court in its "opinion and order" - "In fact, the Stacks similarly advocated their own

interests during the mediation by rejecting Menard's settlement offers. Moreover,

mediation and litigation - even dispositive motions such as motions for summary judgment

- typically run parallel to each other." - To the Plaintiffs it represents a gross over

statement by the Court to depict multiple "offers" made by the Defendant when in

reality we are being asked to pay for ninety minutes of wasted time, mostly spent

listening to "mediation instructions" by the Mediator and waiting in muted silence while

the Defendant and "authorized person" to put forward a miserly offer of $1,000 more

than their opening offer of $5,000. - This was against our opening demand of $125,000

which we'd reduced by $10,000 after their initial $5,000 offer. - Then to have their

counter offer of $1,000 withdrawn following another lengthy wait in silence certainly

gives credence to our accusation of a "sabotaged mediation" showing “bad faith" by the

Defendant - all-in-all brought about by their strategic timing of their filing of "Motion

For Summary Judgment" - Is it legal, yes - but from an ethics standpoint, it smells like

spoiled fish.

Since the "typically run parallel to each other" rationale has been applied by the Court,

then Plaintiffs sincerely belief the same reasoning should apply to them. In that regard

we have elected to run parallel "appeals", the formal one to the Court and a less formal

one " running parallel" tothe "courtaf public opinion",' in hopesofyet securing legal'^*

<"V.

representationas wembveforvwffd withourcase;0i'3r-J ^ v. 7 ycq ot iqori

7';+r j *.’t. sn; gninistnicm Ton ni

od W-jcw

29msi bar cnosJ ?Wir: -<h

1 ■ n sd inabnstsG arttte s?oc;v<; olo: sr*\ dfiw lTni»ri2" *s if;.’1 .srjb'-ijoia nclfti.osM

(11).

Photographs considered toJ.beiL-nib

evidence

of causation,r'SUlj

and fmanufacturer's

♦w •

1UU.S 7»n? 1 ?* til*nT?»'iOrri9J3

“statementIb.'i

ofadvisability" concerning

use of.transitionstrips:

_4.

. J »-OnJr. JV. v.#,‘ CM c

- *lbiU ^

0*J

Tfi-Ju V:rJJi?

- Kfffdavh:Exhibit No?! (b)-rPiamtiffs' annotated photograpH.’tak'en on November8,^

2018 by sdry MicBaelStaek?rbf"sl^ht bucMe^'site (iisoBverecI by'IHaintiff James Stack

within 'five minuted afterPlaintiff LeWnVStlack’ November?,12018 trip^fall incident at- • b 3 ?q 3

Menardsof Miihawalia/IN 1 - Photo iakirig was also witnessed by Plaintiff,' James Stack;5- P?'

matching ndh-aiinotatecl (dean copy)accompanys'annotatecl photo.

& svsd ol1 l'o^ ...it* to r jv, -in; ly *.

t 't>f

fS Jr, £ l 3Vj ,Vl?.j i.

il- D.'7

Leona Stack Interrogatory Exhibit No. 3 (B) j^Piainj^^armotaited photograph, taken on a

Noyember8,2018 by son, MichaelStack, of “dpse-upj ^"sli^rtbudcie" site.L-1Photo ■ ,rai'.l

taking was also witnessed by,Plaintiff, James Stack. - A matching non-annotated (clean ns^e

t»w* c r »

* • .* -

• ■—

•*-♦--

- *■ » ---j —* +■'* \» • (» ». - • ♦

* -

w i. ’ i/« tf

-y ^ « m»v*

f u

I’

:«w

copy) accompanysannolatedphoto-unoijssop o?ls ?lffjnisl9 '.yihorhus ingmsim V

- James S^iddhtenogaloiV Exhibit Nbi:3 {af-^PIaihtiffe’annofefed ph6fijgraph/taken',bn

November 8,2018 by2son/Midiaei Stack] of "recessed" vinyl plank as installed 'in two of

the Christinas Decoration aislesat November7,2018dateof £ednaStacktrip^fall incident ■'M

at Menards of fSliSwwa^lN?-Photo ta^ifevras also’witnessed try Plaintrff/JamesStack.

A matching non-annotated^(clean copy) ac^m^ny^anTOS^^o®03 Sfft vd tnern^j*. •?

jtn^qy vtoom ,amit b if/cw *.» Tstunirrr yts-rdn ici y«q of bo^r;

576 su

git Unadulterated photograph of -safety hazard;waming":pyfpn that had been hastily, s+?ij

placed, within 24:hours of Leona Stack's trtp^fall incident or^November 7,J2018. Photo is of *

misplaced (wrong aisle}pylon at another {"recessed", vinylplankaisleadjacenttothe aisle,.

where trip-fall actualiy took place. ~ PhotDiby son of Plaintiffs; Michael Stack;-taken on ^,

afternoon of November 8,2018;end witnessed by plaintiff, James Stack, j ;; >0 *,9^0 ■■Jft UOJ

•'rtJ vd 'tUtz- bed" ^n:.voi' ’> oi?/ijh^rr?

rj 3ds2 *>

- Annotated photograph taken by Plaintiff, James Stack cell phone, on October 14,

-1':' * to r.'-Mn-vo

-? >;

tuo.de

»Ig rr: -Ur jneu.ielu;’-

2019. Photo indicates consistency in Menards of Mishawaka, IN. negligent use and

- . a \en- k

.^ / • irji ji

y7i»r installation of "recessed" vinyl plank during holiday season.

ict i

ha’io<

- Copy of E-Mail dated November 18,2019 from Plaintiff, James Stack, and directed to

Til?'

yr ooi.rqs

zzn j'f ncsirr vrtlo < , < v* (•.j;*- if -* y.. *

<■>' \r'f -jzr >r

Ms. Jane Caliies, Counsel for Defendant Menard, ine. - E-Mail .indicates that attachment o.

j-'.b. rf; .manj ai ,.r‘qqirT;T7oTT'-*

T^orrjfTr^t.snr

an "audio-visual*1 taken by son Michael Stack on November 8,2018 is included.- Plaintiff

■*: ,o: ?

nu ru -t', oi v..‘ i? -;? -: ;f|-» ••. i;*nrni ..

^. tv, r si- everts

directs Ms. Caliies to include the audio-visual as a part of Plaintiff Leona Stack response to

her Interrogatory question "No. 3."

- Copy of Internet obtained "Floor Trim, Floor Reducer" ad from Flooring Reducers From

Flooring Me.com - Plaintiff James Stack has underlined - A floor reducer essentially

"reduces' the tripping hazard that is posed by a taller, unfinished selection of flooring.

(Floor reducers such as "transition strips" are sold in the same Menards store where Leona

Stack suffered her fall - Flooring Dept, being within 50 yards of where the trip-fall incident

happened. - MENARDS NEGLECTED TO TAKE THIS SAFETY MEASURE AS A POSSIBLE

MEANS OF PROTECTING THEIR CUSTOMER.

WHILE ATTENDING TO A WIFE WHO WAS SUFFERING SEVERE PAIN IMMEDIATELY

AFTER HER TRIP-FALL, THENCE TO OBTAIN IN-STORE ASSISTANCE, THENCE TO EXPEDITE

HER TRANSFER TO A LOCAL HOSPITAL, THENCE TO SPEND APPROXIMATELY SEVEN

HOURS WITH HER IN EMERGENCY BEFORE HER BEING ADMITTED AT 10:00 PM THAT

NIGHT, THENCE TO SPEND THE WHOLE NIGHT WITH HER IN THE HOSPITAL, ALL

WITHOUT THE KNOWLEDGE OF HOW TO USE THE CAMERA FUNCTION OF THEIR OWN

CELL PHONE, - PLAINTIFFS CONSIDER THEMSELVES FORTUNATE TO HAVE BEEN ABLE TO

CONTACT THEIR SON AND ARRANGE FOR PHOTOS TO BE TAKEN AT MENARDS WITHIN

24 HOURS OF THE INCIDENT. - (Photos were taken "just in case" what Store Management

personnel advised Plaintiffs within a few minutes after the trip-fall incident that, "several

security cameras were in the store, and that chances were that one had captured herfall"

proved to be untrue, as evidenced by response in 'Question No. 4' of Defendant

Interrogatories, "camera did not record herfall.")

HOW BETTER TO EXPLAIN TO A JURY HOW THE "TRIP FALL" HAPPENED BUT TO SHOW

THEM A DIAGRAM AND OR PHOTOS RELATING TO THE INCIDENT. - PLAINTIFFS NOW

VIEW THE COURT "OPINION" RENDERED UNDER TOPICAL HEADING "PHOTOGRAPHS"

ON PAGE 11 OF THEIR REPORT. - I.E. - "The photographs Mrs. Stack relies upon cannot be

considered evidence of causation either. After all, the Stacks admit that the photographs

were taken the day after Mrs. Stack's fall and the record includes nothing to account for

any changes to the flooring as a result of Mrs. Stack's fall or in the approximately 24 hours

between the time of her fall and the photographs."- PLAINTIFFS CONSIDER THIS OPINION

TO BE BIASED, WITHOUT MERIT, AND NON-DISCLOSING OF FACTS THAT ARE PLAIN AS A

NOSE ON ONE'S FACE, OR AS THE PHOTOGRAPHS HAVE FACTUALLY RECORDED. - TO

WITHOLD THEM FROM A JURY AS "INADMISSABLE" WOULD DO MUCH HARM TO THE

IDEA OF "JUSTICE” AS IT STILL EXISTS WITHIN THE NORMS AND IDEALS PRACTICED BY

THE PLAINTIFFS, LEONA AND JAMES STACK.

‘ ir .

*1 g^h "'>H ^.o"‘ ;o -<y.i k. <• vn.;C ■■ i r too;

'\.v

a'.

.oc'V> -

'([

r.-Mi?

/*■'j. igonair:. ior

f-? >c oc ivn'!»c yo<"C

-js; ' v-wf,. ’)»; i.

tyfhcoH

• Plaintiffs Leona and James Stack do not feel cdhtempt wHfttfisfejurt/wSat'we do

feel is bitter disappointment with'the direction in which oiir rase Has gone! Yhis’Sminglv

cruel

cSsSfiaslriceived in the cbitfs "O&hi^anS brdS^ls March/

2021, particular/ after the latest "teleconference”^"ftBriary'lMi^ioii dunrij; which 3^“'

trialdate^wassst ,#t«,»^severat other,pertinent response dates,only,again to have/

“'W^.^’^^-.'.T^^tesS wBrejfoIlawed thatsame day with ORDER SETTING ' /

TRIAL DATC^pWTOCT^CpMFfflEMCE, ANDjWtTH REFERENCETO COWDUCTOFH

TRiAL from the

_Court. 7

tatoenoedtte (tourt.so as to abruptly go from 'CII

trial date sf*hng”to"dBmissar| of our casein a short period of less,than 40 days?, THi v-

tofiffyr-who's^’^yti&feuniisuaiarcumstano^SunmiiidingounnrasenMg&rnaire it^

eligible to becbme in‘itself a ''prece^erit" setting&nt?- Hop^rtyi wea^l^*0,^'""’' "'

facingahoth'ef "maa<ination" in deny■«n.ir* s:h tv. s-w. tmatt.co ; „iy.,

joshnaioOiG

oVl rjoiJ^auC ■"

*10231 yd boonabiv/s <.h ,‘j«,rd*iu ad o3 bsvotv}

The whole crux of our case, the reason for Plaintiffs Leona and James Stack having to InJ

suffer through inexplicMy long periods of delay and uncertainty before being doomed to

W&t c^ld

identii^i^^^

nevertfaveledits

d on «» "** j&nk-fc but iSy^l 2j£2 &&&, "

tripper!miitsparfertkhidden

1. 1

g r'3b .:'>rM t

*y.

-1 '

*Ky?\ «' !<V' ■,;^Vri‘ 9-1'

We trust that the Court will carefully review the'evidence re-submitted arid better - y.i

defined by the Plaintiffs. - We also!pray the Court will reverse its "Opinion and Order" ofv d

i.r

M3rch29,2021andreinstate the dates as previously ordered folfdwirigthe M

"teleconference" of.Feb.v1^2tt21^ ? Tteitncit being possible we then exp^t especially X’C*"

since the Court has not disrnissed our case or ruiedagaiinstusonthe issue’ofSummary.^*M’

Judgment as being “widi jireiiidice^ fo be Mile tb move ori with our appeal to ahigher1 A3^

court, not withstanding to a sympathetic American public.

-* i

Respectfully,

Leona Si

Plaintiff prose

Stack, Plaintiff pro se

Filed with the below, and forwarded via certified US. Mail on this 8th day of April, 2021:

Hon. Michael 6. Gotsch, Sr.

United States Magistrate Judge

United States District Court

Northern District of Indiana

South Bend Division

204 South Main Street

South Bend, IN. 46601

Ms. Jane dailies, Attorney

9801 Connecticut Dr.

Crown Point, IN 46307

Enc!. to Court: Photo Exhibits Nos. 1 (b), 3 (B), 3 {a),

Unadulterated "photo of safety hazard warning"

Annotated October 14,2019 photo

Copy of E-Mail dated November 18,2019 to Jane Cattles

Copy of internet obtained “Floor Reducer” ad relating to transition strips.

90 .

STATEMENT OF THE CASE (Addendum)

As to Question No. 8 ofPetitioners Leona and James Stack, "Questions Presented",

regarding the possibility of court decisions by the United States Court of Appeals For

The Seventh Circuit and the United States Oktriet Coer! of Northern District of

Indiana, Sooth Bend Division - That their "orders" and "opinions" might have been

tainted with the prejudice that accompanies the "special challenges" offered by die fact the

currentpetitioners have represented themselves pro se during the last thirty- six plus

months of this matter. Further, that a conceited effort to deny "due process" by way of " trial

by jury” being sought by Plaintiff-Appellant-Petitioners Leona and James Stack might have

occurred during the same time period.

Undoubtedly, the Defendant’s Counsel will attack this "question" as being "speculative"

and without sufficient evidence as to sustain this "conjecture". They would be correct in

shown under this "petition for writ", Constitutional and Statutory Provisions Involved,

merits at least consideration. Petitioner, James Stack (currently acting as his wife, Leona's,

ive) finds it more than coincidental that

designated durable power &fattorney rej

the following principals in this matter are graduates from die same University of Notre

Dame School of Law:

1. The first attorney contacted, who voluntarily withdrew from the "claim" with no lien

attached

2. The second attorney contacted, per recommendation of "Attorney No. 1", who also

voluntarily withdrew from Plaintiffs' "lawsuit" originally filed with St Joseph Superior

Circuit Court (St. Joseph County State of Indiana), a later transfer to United States

District Court of Northern Indiana, South Bend Division. - No lien attached. This

riy active with Notre Dame's Alumni Club.

attorney was fi

3. The Magistrate Judge iffthe United States District Coart of Northern Indiana, South

Bend Divisfoi*,wfr0'djtot tided against as in his Order AadOpiaioii of March 25,2021

by designating "With Prejudice", thereby leaving the "door open* for Plaintiffs to

"appeal".

4. The Mediator of the foiled, and Plaintiffs alleged "bad feith*, Mediation ofJuly 3,2020,

who failed to "follow thru" in his pursuit of payment of a contractual tee

which then Plaintiffs Leona and James Slack had sought to negotiate payment thereof.

5. The first listed judge on - Affirmation of Final Judgment and both Denials from

Petition For Panel Rearing and Petition for Panel Rehearing En Banc of the United

• ~ V

-•

States Court of Appeal For The Sevcaik CirtUiL 6. Oat

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,,writ,i to secure

graduated from fee Uiiis^sS

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fifty percent ofthe k

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HELP SAVE COLLEGE FOOTBALL!

VISIT: WWW.THECFCSPROJECT.COM

College Football Championship Series website

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REASONS FOR GRANTING THE PETITION

The University of Qiicago Law Review with which courts approach the procedural

treatment question.

"B. Procedural Due Process Rights of Pro Se Civil Litigants Pro se litigants

deserve, of course, the minimum due process rights to which alt other

litigants are entitled. The most significant of these rights is an opportunity

to be heard, "granted at a meaningful time and in a meaningful manner.”

"11 Other minimum due process protections indude the requirement of

adequate notice, the right to a neutral and detached decision maker, the

right to hire counsel, the right to present evidence and confront and crossexamine witnesses, and the right not to fee subjected to the jurisdiction or

laws of a forum with which one has no significant contacts. 02 As the Court

noted in Logan v. Zimmerman Brush Co., however, not “every civil litigant

[is entitled] to a hearing on the merits in every case."!0 3 The Court has

maintained that "the very nature of due process negates any concept of

inflexible procedures universally applicable to every imaginable situation."

" 0 Due process is not “unrelated to time, place and circumstances,'* but

rather is “flexible and caiis for such procedural protections as die particular

situation demands. I 1

Moreover, in the opinion of the Petitioners Leona and James Stack, the repeated denial

of "due process" to us by the various courts heretofore mentioned continues to erode

what waning years remain of the constitutional fundamental of "the pursuit of

happiness"sought by those of our generation; to retire peacefully with the knowledge that

we've earned that reward through our various personal accomplishments, and by abiding

by the laws of justice prescribed by The Constitution of The United States of America.

We are not long in remaining years nor do we possess the financial means to secure

legal aid from those who would research appellate court history in order to be able to cite

court decisions favorable to our cause. We are able only to present the facts and evidence

incorporated with this Petition For Writ of Certiorari that are in disagreement with

previous courts' “eonstruais", “orders",”misrepresentations", and "omissions", namely the

"Question^} Presented" Section. We are very concerned that what began back in

November of 2018 as a straight forward claim for restitution for injuries and subsequent

damages suffered by a“trip-teT inodetH has escalatedinto!being possiblybeing ruled

upon by a Supreme Court of The United States, who themselves are currently under

assault with the politicization of issues which have less to do with "constitutionality" than

• 33- ~

this fundamental issue of "denial of due process."

Albeit being endangered by the challenges of pro se representation, our small voice

needs to resound as a reminder of the promises of our Constitution. Our Petition For Writ

of Certiorari offers a brief respite, yet more constitutionally important issue to the

American "silenced majority of underdogs", during which The Supreme Court ran

demonstrate to the citizenry over which it resides that faith in the justice implied by The

Constitution of The United States has again been affirmed.

Enclosed, as part of this "reason for granting", are examples of the current “hypocrisy"

which currently has replaced the "ethics and common sense" of justice by which over twothirds of our citizens have religiously adhered to. Signed by different attorneys for the

Defendant, and originated over an approximate eight month period, both deal with

Affirmative Defenses ending with "Jury Demand as to all issues herein." The second filing

of February 18,2020 was followed approximately twenty weeks later by the Defendant's

Motion For Summary Judgment. That "motion" effectively negated any possibility of any

"trial by jury" commonly sought for by the plaintiffs. This "negation" has resulted in yet

another "denial" - that we've not been able to present to a jury the consequences of Leona

Stack's trip-fall that have been endured by both wife and husband, lames Stack. These

need be addressed by whatever court or settlement process decided upon by The Supreme

Court. We present them now as an indexed "before and after" enclosure.

Lastly, the enclosed and indexed copy of a letter from The South Bend Clinic &

SurgiCenter represents the beginning of a sad culmination of a thoroughly frustrating and

unjust three and one-half year trek through toe various courts of law. i. Petitioner James

Stack, now stand alone praying that a favorable rating fey toe highest court In the land

comes our way in order that I might provide feSuresecaiftty and care fora beloved one

who, while yet recalling the details of her "trip-fall incident" of November 7,2018, no

longer has toe short term memory capacity to understand why, or if, her remaining days

will be "Dr. Jeckylf or Mr. Hyde" days.

9^ •

REASONS FOR GRANTING THE PETITION (Index and Enclosures)

INDEX:

• 1. Defendant's first "Jury Demand" submission by Bridgett J. Repay, Attorney of

KOPKA PiNKUS DOLIN PC (date unspecified) accompanying Affirmative Defenses in

response to initial March 22,2019 Complaint for Damages by Plaintiffs, Leona and

James Stack hied with St. Joseph Superior/Circuit Court, 71D05-1903-CT-000106.

• 2. Defendant's second "Jury Demand" submission by Jane Callies, Attorney of

KOPKA PINKUS DOLIN PC, filed February 18,2020 accompanying Affirmative

Defenses in response to amended January 29,2020 Complaint for Damages by

Plaintiffs, Leona and James Stack filed with United States District Court Northern

Indiana District, South Bend Division, 3:19-cv-00310-MGG.

• 3. Listing of "Consequences" resulting from Leona Stack "trip-fall incident" of

November 7,2018.

• 4. The South Bend Clinic & SurgiCenter letter of February 24,2021 "Exam Report".

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LISTING OF CONSEQUENCES RESULTING FROM LEONA STACK 11-07-2018 TRIP FALL

A. Extreme initial pain following the trip-fall incident; pain during the initial recovery

period and during home therapy; pain Airing doctor prescribed professional therapy.

B. Enduring pain throughout the lengthy period since the incident which radiates

throughout her lower back and extremities - aggravated by “a change in gait" as

recognized by South Bend Orthopedics, Dr, Tyler McGregor (who prescribed the additional

therapy).

C. Suffering extreme loss of confidence in her ability to stride normally without the

support of walker or cane - leading to her ‘change of gait* with a right lean so as to

anticipate 'tripping obstacles' in her path.

D. Suffering the loss of independence of being able to drive her 22 year old vehicle to go

shopping, to hair stylist, to market, etc. - Although vehicle is titled to her and she has valid

driver's license, Leona Stack no longer drives, nor has since trip-fall incident of Nov. 1,

2018 owing to weakness and lade of dexterity on right hip area and leg.

E. Suffering die inability to fully extend, without pain in elbow area, her right arm to

reach into overhead cupboards.

F Suffering the inability to walk (even with a cane) any lengthy distance without pain m

her legs; to stand for lengthy periods; to ascend or descend stairs to her downstairs

laundry successive times without pain.

G. Suffering the inability to walk to sporting events (granddaughter’s softball and

basketball games) over discomforting uneven ground, or otter than front row1 bleacher

seats, without fear of losing balance.

H. Suffering the 'indignity’ of constantly seeking 'handicapped facilities' if attending

Notre Dame Women's basketball games, i.e. availability of dose in 'handicap parking or

'drop off zone' for husband to pick up; accessibility and availability of 'handicap seating.

Suffering the general 'loss of independence’ in being able to do the little things for

’-Dislikes the fact that she must depend on husband, James Stack, to assist her in

herself.

doing, or to do things she previously was able to do for herself.

J. Suffering the anguish of the ’delays' and the uncertainty of where 'all of this is going

31,

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regard

(Leona) was mostly to fe&ssnetor her S#h1bI itciiefit-

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she

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needed tooftelncreaiK&ianiif&MOgwdatowdtayeopeHse related to household

needs. --.

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James Sfc3d^.feiai&^i^4^i^s^e»fefeW^'ltisasSK«fe8.OTiewliat..

mitigated jfay: life wd&^i^ mm

apriboraodwMe «i^aj however, that.

'h%{»«iaKaii»tetaBctai|raDB9Bod»^uetedtte.

B. The lossof 0ppsf«if t« tassm?® t§pa®# Is^s«|pr« ®r total feme

the sir

Leona tbfusldBK«ai*dliea^-wlieiislieeeedscamiiepft^whM»d'««nddbe

severely restricted as to aiding her hpsband during his surgical m&wesy period.

= C The loss ofthe opportomt^to enjoy the spontaneity end pleasure ofthe sexual

encounter. - Albeit, mw times of intercourse were m the wane,- we were still able to

perform without the aid of drugs prior to Leon's trip-fell incident - Discomfort in her

lower extremities* and James1 concern wlfch'pasMrsg the issue1 to further cause her

discomfort has virtually eHn&s^ai'te^iipoim^ -? most certainty the 'spontaneity3

md ^ipifisitis-fitttSsgfe s tB^toaisd^

0. For tfe®

to leflqiBin%sieamfeoBnMi du^as nomisSf ppefosniBd^^pouser

grocery stopping, cootang. - Mtoit asking tss, &'

Stack)

ie- teaediy,

now be!;ora<i sn enio¥IlWe

pastime, it doss fate time mm worn his Veadjag* and Vritiflg' habfc-ies. -liedoes nearly

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50% of what his spouse formerly did in regard to food preparation prior to her trip-fall

incident of Nov. 7,2018.

E. in general, for the loss of 'shared companionship' in doing recreational activities

formerly enjoyed before Leona's trip-fall incident, - James and Leona Stack did most

everything together with a sense of moderation and frugality, it becomes increasingly

difficult to continue so- due solely to the negligence of Menard, Inc., which continues thru

this day.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

2TW3TMOD 30 3J8AT

APPENDIX A: (Page 2}

WOJ38 ZMOIMIRO

Cause No. 3:l$-cv-310-M66, ORDER SETTING TRIAL DATE AND FINAL PRETRIAL

CONFI n w ^AND

WITH REFERENCE.TO CONDUCT. OF TRIAL filed February l8,">20211 by lUl

United States District Court Northern District of Indiana, South Bend Division - (Cross

reference with.-Question(s)

Presented?,,QuestionNos: 5and6)AT2 GMA JA^OrrUTIT2MOD

Case No. 21-1628, ORDER, "On consideration of.the petition for. rehearing7'; dated! M3TAT2

December 16,2021 by United States Court of Appeals For Hie Seventh Circuit, Chicago,

IL - (Cross reference with~Question(s} Presented?, Question No. 2):rraARD 303 2M02A3R

Case No. 21t1628, ORDER, on APPELLANTS PETITION FOR £N BANC PANEL REHEARING,^03

dated January 10,2022 by United States Coist of Appeals For The Seventh Circuit,

Chicago, IL - (Cross reference with "Question(s) Presented11, Question No. 1).

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Appendix A IPaee 2)

TABLE OF CONTENTS

OPINIONS BELOW JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

4-22

REASONS FOR GRANTING THE WRIT

23-34

CONCLUSION

INDEX TO APPENDICES

APPENDIX A: (As instructed by letter from Ms. Walker of Office of Clerk, this also appears

immediately following "Conclusion”).

Case No. 21-1628, ORDER decided November 29,2021 by United States Court of Appeals

For The Seventh Circuit, Chicago, IL - (Cross reference with "Question(s) Presented",

Question No. 4).

Case No. 21-1628, FINAL JUDGMENT AFFIRMED November 30.2021 by United States

Court of Appeals For The Seventh Circuit, Chicago, IL - (Cross reference with "Question (s)

Presented", Question No. 3).

Case No. 21-1628, NOTICE OF ISSUANCE OF MANDATE December 27,2021 by United

States Court of Appeals For The Seventh Circuit, Chicago, IL - (Cross reference with

"Question(s) Presented", Question No. 1).

Cause No. 3:19-cv-310-MGG, OPINION AND ORDER filed March 26,2021 by United States

District Court Northern District of Indiana, South Bend Division - (Cross reference with

"Question(s) Presented", Question Nos. 5 and 6).

Appendix A

;

APPENDIX A: (Page 2)

Cause No. 3:19-cv-310-MG6, ORDER SETTING TRIAL DATE AND FINAL PRETRIAL

CONFERENCE, AND WITH REFERENCE TO CONDUCT OF TRIAL filed February 18,2021 by

United States District Court Northern District of Indiana, South Bend Division - (Cross

reference with "Question(s) Presented", Question Nos. 5 and 6}.

* "V'..

Case No. 21-1628, ORDER, "On consideration of the petition for rehearing", dated i ,

December 16,2021 by United States Court of Appeals For The Seventh Circuit, Chicago,

IL - (Cross reference with "Questions) Presented", Question No. 2).

* ■ ]

Case No. 21-1628, ORDER, on APPELLANTS PETITION FOR EN BANC PANEL REHEARING,

dated January 10,2022 by United States Court of Appeals For The Seventh Circuit,

Chicago, IL - (Cross reference with "Question(s) Presented", Question No. 1).

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Appendix A (Page 2)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.