Reply Brief in Support of Petition to Transfer file stamped (1).pdf

Reply Brief in Support of Petition to Transfer file stamped (1).pdf

• 1.
  IN THE INDIANASUPREME COURT CASE NO.: ________________ PASTOR MARIO L. SIMS, ) Appeal from the Indiana Court of Appeals Appellant-Plaintiff, ) ) Case No. 21A-CT-02309 ) ) Appeal from the St. Joseph Circuit Court 1 v. ) ) The Honorable John E. Broden, Judge ) PETE BUTTIGIEG, et al., ) Trial Court Case No.: 71C01-2109-CT-342 Appellees-Defendants. ) _____________________________________________________________________________ REPLY BRIEF IN SUPPORT OF PETITION TO TRANSFER _____________________________________________________________________________ Attorney Thomas F. Godfrey Attorney #16722-49 P.O. Box 866 Bristol, IN 46507 Telephone: (219) 221-2151 E-Mail: [email protected] Attorney Richard Bryant Attorney #29568-20 22356 Spicewood Drive Telephone: (574) 903-7603 E-Mail: [email protected] Attorneys for Appellant 1 Filed: 10/4/2022 10:59 PM
• 2.
  Reply Brief inSupport of Petition to Transfer of Appellant Pastor Mario L. Sims REPLY ARGUMENT ON TRANSFER In their Brief, Appellees made material factual misstatements that the facts raised in Mr. Sims’ Verified Complaint, filed September 6, 2020, have been heard on the merits, misleading this court, if not corrected below. Appellees supported their Brief with a “fact” that the trial court did not see the complaint before it was filed, a fact that does not exist anywhere, as simultaneously filed with the “Verified Complaint at Law” on September 6, 2021, Mr. Sims filed “Plaintiff's Brief Directed Solely to the Court in Support of His Verified Complaint at Law (Pursuant to the Court of Appeals Memorandum Decision 20A-CT-2390 of April 14, 2021 )”, which the trial court acknowledged in its Order in February 2022, and at no point stated it had not authorized the complaint’s filing. Further, Appellees conceded significantly in their “Statement of Facts” as to the correctness of Mr. Sims’ chronology in his Petition to Transfer that clearly shows there was not hearing on the merits of Mr. Sims’ Verified Complaint file September 6, 2020, thereby not only admitting the Court screened the complaint, but that the facts were deemed admitted by their failure to answer. Finally and fatally the Appellees waived any argument as to Mr. Sims’ Petition to Transfer, Arguments I, II, and II. 2
• 3.
  Reply Brief inSupport of Petition to Transfer of Appellant Pastor Mario L. Sims Because all of the foregoing constitute an abuse of the judicial process as it is a shame pleading and was done in bad faith, in view of these misrepresentations, the Appellant has also simultaneous filed a Motion for Sanctions. Transfer should be granted The Appellees are fully aware that none of the facts in Sims’ Verified Complaint filed September 6, 2022, have ever been addressed on their merits by any court. Further the Appellees conceded the following chronology was correct. On or about April 15, 2019, the Appellant, Mario Lamont Sims, (Sims”) was contacted by an investigative news reporter, Alexis Rivas Shear from ABC 21 News. The news reporter arrived at the church with a cameraman and another news reporter, Tom Powell. The news reporter, Mrs. Shear disclosed to Sims that she was conducting an interview with Mr. Tim Corbett, Mr. Corbett was a South Bend, Indiana Police Officer in 1994. According to Mrs. Shear during her interview with Mr. Corbett, Mr. Corbett admitted that he had planted evidence in the case of Mario L. Sims in 1994. Mrs. Shear stated that she was afraid for her life, but that Pastor Sims could act on what she had told him about Mr. Corbett’s statement. Pastor Sims was made aware that Mrs. Shear had taken steps to inform others of the admission made by Mr. Corbett. Mrs. Shear stated her news executives told her she 3
• 4.
  Reply Brief inSupport of Petition to Transfer of Appellant Pastor Mario L. Sims had to make a police report about Mr. Corbett's admission, therefore she called Elkhart City Police Officer Davin Hackett who took her statement about the admission. Officer Hackett then filed a report of the statement made by Mrs. Shear to his department’s Internal Affairs office. And, she also called the former South Bend City Board of Public Safety President Mr. Pat Cotrell as well to former City Councilman Derek Dieter. Sims was made aware of a news article by the news agency Young Turks in September of 2019, in which then South Bend City Mayor, Pete Buttigieg, Mike Schmuhl, and the South Bend City Legal Department were aware that Mr. Corbett had bragged about planting evidence to gain convictions of Black males. The information obtained by the Young Turks was obtained through discovery by using of the Freedom of Information Act. The information obtained by the Young Turks support the information provide to Sims by Mrs. Shear that Mr. Corbett fabricated and/or planted evidence against Sims resulting in his conviction of a crime that he did not commit. Another important piece of evidence that came to the attention of Sims was Mr. Corbett’s own words, spoken by the others, who are on tapes which were heard by Mrs. Karen DePaepe, the former Communication Director of the South Bend Police Department. 4
• 5.
  Reply Brief inSupport of Petition to Transfer of Appellant Pastor Mario L. Sims In response to this newly disclosed evidence, Sims filed his “Verified Complaint at Law (filed pursuant to the Court of Appeals Memorandum Decision 20A-CT-2390 of April 14, 2021 ), on September 6, 2021. (App. II, 18-45). As required by the Court of Appeals Memorandum Decision 20A-CT-2390 of April 14, 2021, simultaneously with the “Verified Complaint at Law” Plaintiff also filed on September 6, 2021, his “ Plaintiff's Brief Directed Solely to the Court in Support of His Verified Complaint at Law (Pursuant to the Court of Appeals Memorandum Decision 20A-CT-2390 of April 14, 2021 )” with attachments. (App. II, 2-8): After more than twenty three (23) days elapsed, and the Defendants failed to appear, move to enlarge time, or file any motion or appearance, on October 8, 2021, then Sims filed his “Verified Motion for Entry of Default Pursuant to Trial Rule 55(A).” (App. II, 46-47). None of the Defendants filed an opposing motion, moved to enlarge time to respond or challenge service. Therefore the facts were deemed admitted. On October 15, 2021, approximately thirty nine (39) days after this case was filed, after the trial court conducted its Scopelitis screening, without any filing made on behalf of the Defendants, with no hearing being held of any type, and with no motion before it, although the docket shows “Order on motion” the trial court dismissed the case. (App. II, 2-8) 5
• 6.
  Reply Brief inSupport of Petition to Transfer of Appellant Pastor Mario L. Sims CONCLUSION AND SIGNATURE BLOCK For the reasons stated herein, this Court should accept transfer and reverse the trial court’s Orders of October 15, 2021 and February 18, 2022 and remand this case with instructions to grant Sims' Motion for Default so this matter can be set for a hearing on damages, and for any further relief deemed just and proper. Respectfully submitted; /s/Thomas F. Godfrey Attorney Thomas F. Godfrey Attorney #1672249 3 Bristol Drive Michigan City, IN 46360 Telephone: 219-221-2151 /s/Richard Bryant Attorney Richard Bryant Attorney #29568-20 22356 Spicewood Drive Telephone: (574) 903-7603 E-Mail: [email protected] 6
• 7.
  Reply Brief inSupport of Petition to Transfer of Appellant Pastor Mario L. Sims WORD COUNT CERTIFICATE We verify that this verify that this Reply Brief in Support of Petition to Transfer contains 955 words, as prescribed by Ind. App. Rule 44(E), notwithstanding those items excluded from page length limits under Ind. App. Rule 44(C). /s/Thomas F. Godfrey Attorney Thomas F. Godfrey Attorney #1672249 3 Bristol Drive Michigan City, IN 46360 Telephone: 219-221-2151 /s/Richard Bryant Attorney Richard Bryant Attorney #29568-20 22356 Spicewood Drive Telephone: (574) 903-7603 E-Mail: [email protected] 7
• 8.
  Reply Brief inSupport of Petition to Transfer of Appellant Pastor Mario L. Sims CERTIFICATE OF FILING AND SERVICE The undersigned hereby certifies that we electronically filed the foregoing “Reply Brief in Support of Petition to Transfer” using the Indiana E-filing system (IEFS) and a true and correct copy of the “Reply Brief in Support of Petition to Transfer” was served via IEFS upon Appellees Counsel of record; Attorney James Francis Groves, 205 West Jefferson Blvd., Ste 502, South Bend, IN 46601-0000, 574-232-5923(W) this 4th day of October, 2022. /s/Thomas F. Godfrey Attorney Thomas F. Godfrey Attorney #1672249 3 Bristol Drive Michigan City, IN 46360 219-221-2151 Telephone: 219-221-2151 E-Mail: [email protected] s/Richard Bryant Attorney Richard Bryant Attorney #29568-20 22356 Spicewood Drive Telephone: (574) 903-7603 E-Mail: [email protected] 8