Opposition Brief — Wyneken v. Scott

5 98 -459 FILED

JUL 27 1996

IN THE

SUPREME COURT OF THE UNITEP STATES" ee

OCTOBER TERM, 1998

NO. A-809

WARREN W. WYNEKEN, ESQ., PRO SE, Petitioner,

VS.

HARRY W. SCOTT, JOSEPH M. JOHNSON,

and CHARLES E. WELLS, Respondents.

BRIEF OF CHARLES E. WELLS IN OPPOSITION TO 2

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE UNITED STATES

Richard R. Bleeke

Bleeke & Associates

Courtside Building, Suite 300

803 South Calhoun Street

Fort Wayne, IN 46802

(219) 423-9602

Attorney for Respondent

Charles E. Wells

QUESTIONS PRESENTED FOR REVIEW

Whether the questions presented by Petitioner

constitute a "federal question" that would

provide a jurisdictional basis for review by this

Court, and, if so, whether a "federal question"

was timely raised by Petitioner.

ARTIES T PR

Warren W. Wyneken, pro se

O'DOWD WYNEKEN & CONNOLLY

1717 Ft. Wayne Nati. Bank Bidg.

110 West Berry Street

Fort Wayne, IN 46802-2311

Harry W. Scott

Joseph M. Johnson

Represented by:

M. Bruce Scott

MILLER SCOTT & BROWN

146 South Second Street

Decatur, IN 46733

Charles Wells

Represented by:

Richard R. Bleeke (4021-02)

803 S. Calhoun St., Suite 300

Fort Wayne, IN 46802

TABLE OF CONTENTS

Questions Presented for Review. ...........56. -i-

Parties to the Proceedings. ..........+++ee85 -ii-

Table OF CONTOTIEB. 6 cc ct ct tees -iii-

Table of Cited Authorities.............5505: -V-

Basis for Jurisdiction. . 1... cc eee ccs

Concise Statement of Basis for Jurisdiction....... 1

Statement of the Case. ........ cece reer e ens 1

APQUMENE. 0.6 ce cece ee eee ete eee nnns 6

i Petitioner suggests that this Court has

jurisdiction to hear his appeal pursuant

to 28 U.S.C. 81257 and Amendment V

of the Constitution of the United States.

Since Petitioner’s Petition for Writ of

Certiorari is the first time Petitioner has

attempted to raise a "federal question"

issue, such issue is not timely raised

and cannot be considered by this Court..... 6

a Petitioner’s appeal, in its simplest terms,

is that the Trial Court improperly excluded

certain evidence in a claim for breach of

contract and for tortious interference with

contractual relation. Such an exclusion,

even if erroneous, does not qualify as a

"federal question” that would provide

a jurisdictional basis for review by this

-iv-

TABLE OF CITED AUTHORITIES

Chapin v. Frye (1900) 179 U.S. 127,

WS SP OE Fie ec ie 8

Lynk v. LaPorte Superior Ct. No. 2

(1986, CA7 Ind.) 789 F2d 554.......... 8

Morrison v. Watson (1894) 154 U.S. 111,

36 40d: O27; 16 6.00. O08. 2 SS 8

Paullus v. Yarnell, 633 N.E.2d 304

PERE. SO Sr ke PES 9, 11

Quimby v. Boyd (1888) 128 U.S. 488,

SLOG, G08, WECE TAR oe es %

Rogers v. Clark Iron Co. (1910) 217 U.S. 589,

OS 16d. O06, 20 9.Ct. 68S... bee 8

rv. Comptroller of N.Y. (1899)

175 U.S. 32, 44 L.Ed. 62, 20S.Ct. 29..... g

Seaboard A.L. Railway v. Padgett (1915)

236 U.S. 668, 59 L.Ed. 777, 35 S.Ct. 481...... 7

Spies v. Ill. (1887) 123 U.S. 131,

ee OR OSCE 28 ok ee as 8

Swearingen v. St. Louis (1902) 185 U.S. 38,

NG 126. 798, 22 S:6%. $60... 0. a 8

l ICTION

Respondent Wells believes there is no basis for

jurisdiction and that Petitioner’s invocation of 28

U.S.C. §1257 is misplaced.

CONCISE STATEMENT OF BASIS

FOR JURISDICTION

Again, Respondent Wells believes there is no

jurisdictional basis for review by this Court.

Petitioner’s argument on appeal is that the State Trial

Court erroneously prevented him from introducing

certain evidence at trial. The exclusion of evidence in

a Civil trial does not constitute a "federal question.”

Moreover, Petitioner has only now, in an effort to

confer jurisdiction on this Court, attempted to

“remold" his argument in constitutional terms.

T NT OF THE CASE

This appeal arises out of a lawsuit initiated by

attorney Warren W. Wyneken against his former

client, Charles E. Wells, and against attorneys Harry

W. Scott and Joseph M. Johnson. Wyneken brought

Suit against Wells for an alleged breach of contract,

and Wells counterclaimed, alleging legal negligence

and abuse of process. Wyneken also brought suit

against Scott and Johnson for alleged tortious

interference with contractual relations, and Scott and

Johnson counterclaimed, alleging abuse of process.

The parties were involved in prior litigation

which ultimately led to the filing of this lawsuit. In

order to understand the issues raised by Wyneken in

this appeal, it is necessary to briefly discuss the facts

surrounding the prior litigation. ~-

The Cincinnati Insurance Company paid a

$175,000 claim as a result of a fire at the home of

Carl Larry Moon. Thereafter, as subrogee of Moon,

the insurance company filed suit in December 1986

against Wells, a heating and cooling contractor who

had installed a wood-burning furnace in Moon’s home

in 1981. The insurance company alleged that the fire

at the Moon residence was a result of faulty

installation of the furnace by Wells.

Wells, who was uninsured, hired Wyneken to

defend him in the suit brought by the insurance

company. On behalf of Wells, Wyneken filed a

counterclaim against the insurance company, alleging

abuse of process. Wyneken believed that there was

ample evidence that the fire was the result of Moon’s

misuse of the furnace and that there was reason to

believe that the Cincinnati claim was based on a

fictitious fire investigation since Cincinnati settled with

the general contractor, Bob Berning, for 7% of the

claimed loss [of $175,000] even though Berning was

fully insured. Wyneken also claimed that he knew

that the entire case as filed by the Cincinnati

Insurance Company was without legal basis and that

the then attorney representing Cincinnati, Mark

Baeverstad, having knowingly procured a false fire

report from Cincinnati’s fire investigator, had tucd the

suit in an attempt to fraudulently procure a settlement

with Wells’ believed insurance company.

Wyneken hired attorney Harry Scott to assist

him as local counsel at trial because trial was to be

2

heid in the county where Scott practiced. After many

delays, the trial in the Cincinnati v. Wells matter was

scheduled for January 6, 1992. Wyneken intended to

argue the issue of insurance coverage at trial, but the

judge ruled that he could not do so. Nonetheless,

during the course of his opening statement, Wyneken

told the jury that Wells had come to see him because

Wells did not have insurance at the time of the fire.

Counsel for the insurance company successfully

moved for a mistrial.

Wells, who was upset with Wyneken after the

mistrial was declared, called Scott at home the

evening of January 6, 1992. Scott suggested that

Wells calm down, think it over, and discuss the matter

with Wyneken. Four days later, Wells discharged

Wyneken. Wells asked Scott to assist him in finishing

the Cincinnati v. Wells litigation, and Scott asked his

partner, Joseph Johnson, to review the files. Scott

and Johnson ultimately agreed to help Wells. The

insurance company eventually dropped its subrogation

claim against Wells and paid him $9,000.

Wyneken thereafter filed this lawsuit against

Wells, Scott, and Johnson. Wyneken alleged in his

complaint that Wells, in concert with Scott and

Johnson, wrongfully terminated his contract with

Wyneken for legal services. Wyneken also alleged in

his complaint that Scott and Johnson wrongfully

interfered with the contractual relationship between

himself and Wells, but did not allege the existence of

an agency relationship between himself and Scott or

that Scott violated any duties associated with any

such agency relationship.

During pretrial proceedings on March 29, 1996,

the trial court ruled that it would not allow Wyneken

to retry the Cincinnati v. Wells case in this matter.

Believing that the Cincinnati v. Wells case involved

issues essential to this case, Wyneken thereafter

sought an order that would allow him to present as

evidence in this case a substantial amount of evidence

from the Cincinnati v. Wells case. -In his motion

before the trial court, Wyneken stated in pertinent

part:

The Cincinnati v. Wells case was

interrupted by a finding of a mistrial and

immediately reset for trial in August of

1992. Wyneken has alleged that

although Wells had a legal right to

discharge him, irrespective of the reason,

Well’[s] counterclaim of abuse of civil

process was so strong as to virtually

assure Wells of a favorable verdict.

Further, that Harry W. Scott owed

Wyneken a duty as his agent, to help

restore the relationship Wyneken had

with Wells. Properly handied by Scott,

the prior case had a great likelihood of

resumption with ultimate success for

Wells.

Record at 83-84. Wyneken also argued that (1) he

- had explicitly set forth his position in this case in his

statement of claims and contentions, which had been

filed with the court more than a year before and which

had been included in at least one draft pretrial order

supplied to all counsel, (2) defendants recognized the

validity of his position and the relevance of such

evidence and had not previously objected to the

inclusion of the prior litigation in this case. Wells,

4

Scott, and Johnson filed motions in limine, requesting

that the court deny Wyneken’s motion.

The matter was ultimately tried in two phases

in the Adams Circuit Court in the State of Indiana.

The first phase of the jury trial involved Wyneken’s

claim against Wells, Scott, and Johnson. After the

jury rendered a verdict in favor of Wells, Scott, and

Johnson in the first phase of the trial, the second

phase of the trial involved the counterclaims against

Wyneken. The jury returned verdicts in favor of

Wells, Scott, and Johnson in the second phase of the

trial.

On June 14, 1996, the trial court entered a final

judgment based upon the jury’s verdicts. Costs were

assessed against Wyneken, and Wyneken was

ordered to pay Wells $90,000 in compensatory

damages and $250,000 in punitive damages. The

final judgment also ordered that Wyneken pay Scott

and Johnson $45,000 in compensatory damages and

$100,000 in punitive damages.

Wyneken appealed the matter to the Indiana

Court of Appeals, asking the Court to set aside the

jury verdict. The Indiana Court of Appeals, in a

Memorandum Decision-Not for Publication, affirmed

the Trial Court and the jury verdict. App. 4. The

Court ruled that admission or exclusion of evidence is

a matter entrusted to the sound discretion of the trial

court and that Wyneken had failed to create a

sufficient record by way of offer of proof to allow the

Court of Appeals to conclude that the Trial Court’s

exclusion of evidence from the Cincinnati v. Wells

case constituted an abuse of discretion. Thereafter,

Wyneken petitioned for rehearing and was denied. He

subsequently sought transfer to the Indiana Supreme

Court and the Indiana Supreme Court denied transfer.

App. 5. Wyneken now asks this Court to grant

Certiorari, in essence, to review the Trial Court’s

exclusion of evidence.

Petitioner's claims and arguments throughout

these proceedings have been difficult to distill and

discern. What is clear, however, is that not once has

Petitioner attempted to frame his arguments in

constitutional terms prior to this effort to seek

Certiorari. Petitioner’s Tables of Cases, Statutes, and

Other Authorities in his Brief before the Indiana Court

of Appeals, in his Petition for Rehearing before the

Indiana Court of Appeals, and in his Petition to

Transfer to the Indiana Supreme Court are completely

devoid of any reference to the United States

Constitution or any other Federal legislation.

Petitioner’s Briefs at each of those leveis, as well, are

without reference to the United States Constitution or

any Federal legislation. In Petitioner’s Petition for Writ

of Certiorari, he simply asserts that this Court has

jurisdiction under 28 U.S.C. 81257 and the 5™

6

Amendment to the United States Constitution which

provides, in part, "no person shall be...deprived

of...property without due process of law...."

Petitioner makes no effort to even try to demonstrate

how the Trial Court’s exclusion of evidence

constitutes a deprivation of property without due

process but, instead, simply asserts that it did. This

Court’s power to review cannot arise from a mere

assertion of a federal right. Seaboard A.L. Railway v.

Padgett (1915) 236 U.S. 668, 59 L.Ed. 777, 35 S.Ct.

481.

Respondent Wells understands and

acknowledges that this Court, in its discretion, may

review ©ases in which a State Court of last resort has

decided an important Federal question in a way that

conflicts with the decision of another State Court of

last resort, of a United States Court of Appeals, or of

this Court. Rule 10(B) and (C). The Indiana Supreme

Court, however, did not decide an important Federal

question in a way that conflicts with any other State

Court or any Federal Court. A quick review of the

opinion of the State Court of Appeals shows that the

Court did not decide any federal question as no

federal question was presented.' Petitioner cannot be

heard to claim that the State Court of last resort

incorrectly decided a federal question when no federal

question was presented to it. Similarly, this Court

cannot entertain jurisdiction where a federal question

has neither been raised nor decided in the State Court.

Lynk v. LaPorte Superior Ct. No. 2 (1986, CA7 Ind.)

789 F2d 554. A federal question which is relied upon

' The Indiana Supreme Court denied transfer.

Appendix 5. As such, the Court of Appeals’ opinion is the

controlling order in this case. Appendix 4.

7

to confer jurisdiction on this Court cannot be raised

for the first time in the Supreme Court of the United

States. Spies v. lil. (1887) 123 U.S. 131, 31 L.Ed.

80, 8 S.Ct. 22; Quimby v. Boyd (1888) 128 U.S. 488,

32 L.Ed. 502, 9 S.Ct. 147; Morrison v. Watson

(1894) 154 U.S. 111, 38 L.Ed. 927, 14 S.Ct. 998;

Scudder v. Comptroller of N.Y. (1899) 175 U.S. 32,

44 L.Ed. 62, 20 S.Ct. 29; Chapin v. Erye (1900) 179

U.S. 127, 45 L.Ed. 119, 21 S.Ct. 71; Swearingen v.

St. Louis (1902) 185 U.S. 38, 46 L.Ed. 795, 22 S.Ct.

569; Rogers v. Clark Iron Co. (1910) 217 U.S. 589,

54 L.Ed. 865, 30 S.Ct. 693. Given the fact that

Petitioner has only now, in his Petition for Writ of

Certiorari, attempted to articulate his argument in the

form of a federal question, Respondent Wells

respectfully submits that this Court is without

jurisdiction to hear Petitioner’s appeal.

2. Petitioner's appeal, in its simplest terms, is that

he _ Trial impr rl | rtain

vidence in laim for breach of contr n

for rti inter ith | ,

r j . ni 4

n li 7 ion"

Id prov icti is for revi

hi r F

Petitioner claims that the Trial Court erred in

refusing to allow him to present evidence from the

Cincinnati v. Wells matter at trial of the Wyneken v.

Scott, Johnson and Wells matter. When the Trial

Court excludes evidence, the proponent of evidence

is obviously required to make an offer of proof in

order to preserve the ruling for appellate review.

Paullus v. Yarnell, 633 N.E.2d 304 (Ind.Ct.App.

8

iii |

1994), trans. denied. Such an offer allows an

Appellate Court to consider the propriety of the Trial

Court’s decision excluding the evidence and, as such,

the offer must reveal the substance, purpose,

relevancy, and materiality of the excluded evidence.

ld. Petitioner made no offer of proof at trial regarding

the evidence from the Cincinnati v. Wells case that he

wanted to present and, here, concedes that he made

no offer because it would have been burdensome to

do so.” Petition for Writ, p. 5. Petitioner has not

stated to this Court, nor did he share with any of the

Courts of Appeal in Indiana, exactly what evidence he

sought to have admitted and how it was in any way

relevant in a case involving allegations of breach of

contract and tortious interference with contractual

relation.®

2 Petitioner attempts to argue that he was precluded

from presenting a cause of action at trial. It is difficult to

conceive how a cause of action would be presented other than

by way of presentation of facts or evidence establishing such a

cause. Regardless of the nomenclature Petitioner wishes to

employ, whether “cause of action,” "facts," or "evidence," a

State Trial Court's ruling on exclusion or admissibility is within

its sound discretion. Moreover, when a decision is made to

exclude, the offering party is required to make an offer of proof

so that a reviewing court might properly examine whether the

exclusion was an abuse of discretion. Here, a quick review of

the decision by the Indiana Court of Appeals, App. 4, reveals

that Petitioner failed completely to undertake the effort to make

such an offer of proof.

3 At page 5 of his Petition for Writ, Petitioner states

that Respondent Wells’ counsel: "...Bleeke had falsely

contended that these opposing counsel ‘...addressed the trial

court regarding that issue by way of a Motion in Limine...’"

Although the allegation is not germane to the Court's decision

here, Respondent Wells wishes to address a clear misstatement

of fact by Petitioner as required by Supreme Court Rule 15.2.

9

Petitioner seeks to argue that the jury verdict

rendered against him constitutes a deprivation of

property without due process. Petitioner received due

process. He had an opportunity to present his claim

against Respondents Scott Johnson, and Wells, to a

jury and a jury found against him. His only argument

on appeal is that he was not allowed to present all the

evidence in support of his claim that he wished to

present.

This Court’s Rules clearly state that:

A Petition for Writ of Certiorari is rarely

granted when the asserted error consists

of erroneous factual findings or the

misapplication of a properly stated rule of

law.

Supreme Court Rules, Rule 10.

Here, the Indiana Court of Appeals stated that

the admission or exclusion of evidence is a matter

which is entrusted to the sound discretion of the Trial

Court. Paullus, 633 N.E.2d 304. Petitioner does not

and cannot argue that the Indiana Courts of Appeal

misstated the Rule regarding exclusion of evidence.

Counsel for Scott, Johnson, and Wells did, indeed, address the

Trial Court by way of Motion in Limine regarding their belief

that Wyneken would improperly attempt to insert into the trial

of the Wyneken v. hnson, and Wells matter, irrelevant

evidence from the Cincinnati v. lls matter. Petitioner, in

fact, acknowledges, concedes, and states that such Motions in

Limine were filed a mere four lines later in his Petition where he

states: “Following the ruling by the court in the present case,

backed up by Motions in Limine, numerous successful

objections were made.” Petitioner’s Writ, p. 5.

10

He can only argue that the Trial Court and Courts of

Appeal misapplied that Rule. That argument neither

constitutes a federal question nor does it suffice as a

basis for this Court granting Petitioner’s Petition for

Writ.

CONCLUSION

Respondent Wells respectfully requests that the

Court deny Petitioner’s Petition for Writ of Certiorari.

Submitted by:

Richard R. Bleeke (4021-02)

BLEEKE & ASSOCIATES

Courtside Building, Suite 300

803 South Calhoun Street

Fort Wayne, IN 46802

(219) 423-9602

Attorney for Respondent

Charles E. Wells

11