Pursuant to Ind.Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

APPELLANT PRO SE: ATTORNEYS FOR APPELLEE: 

ERIC D. SMITH GREGORY F. ZOELLER 

Carlisle, Indiana Attorney General of Indiana 

 ELIZABETH ROGERS 

Deputy Attorney General 

Indianapolis, Indiana 

IN THE 

COURT OF APPEALS OF INDIANA

ERIC D. SMITH, ) 

) 

Appellant-Defendant, ) 

) 

vs. ) No. 46A03-1110-CT-493 

) 

STEVE EULER, MELVIN BROOKS, MARTY ) 

SEXTON, and JASON JACOB, ) 

) 

Appellee-Plaintiff. ) 

APPEAL FROM THE LAPORTE SUPERIOR COURT 

The Honorable Richard Stalbrink, Judge 

Cause No. 46D03-1001-CT-21 

June 12, 2012 

MEMORANDUM DECISION - NOT FOR PUBLICATION 

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

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

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

 We affirm and remand with instructions. 

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

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

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

as follows: 

 On September 13, 2005, Smith filed a complaint against the DOC, 

alleging that on February 23, 2005, Euler completed an unwarranted conduct 

report against Smith for abuse of mail to cause Smith harm and to retaliate 

against him for the multiple grievances and tort claims he had filed in the past. 

Smith alleged that the abuse of mail regulation was unconstitutionally vague 

and denied him due process and that the DOC failed to provide him with an 

impartial hearing on the allegation. Additionally, Smith alleged that on March 

1, 2005, he was beaten by Sexton, Jacob, and Brooks [officers at the Westville 

Control Unit correctional facility where Smith was imprisoned at the time] and 

suffered injuries as a result of the beating. The complaint includes claims for 

conspiracy to retaliate against him, failure to protect him, use of excessive 

force, and failure to provide proper medical treatment. 

 On September 13, 2005, Smith filed a motion for the appointment of 

counsel. Over the subsequent months, he filed a copious number of motions 

covering many different topics, only a small number of which are relevant to 

this appeal. On November 9, 2005, the DOC filed a motion for partial 

judgment on the pleadings. On January 1, 2006, Smith renewed his motion for 

the appointment of counsel. On April 20, 2006, he sought leave to file an 

amended complaint. On June 5, 2006, Smith filed another motion for the 

appointment of counsel. The trial court denied Smith’s motion to amend his 

complaint on September 25, 2006. On April 5, 2007, the trial court entered 

summary judgment in favor of the DOC on Smith’s complaint and found 

Smith’s request for an attorney to be moot, noting that, in any event, he was 

not entitled to the appointment of counsel. 

Smith v. Ind. Dept. of Corr., No. 49A02-0705-CV-430, slip op. at 1 (Ind. Ct. App. Dec. 26, 
3

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

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

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

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

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

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

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

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

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

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

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

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

the amendment would have been futile. 

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

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

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

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

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

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

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

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

upon our conclusion that the trial court did not have authority to grant Smith’s motion to file 
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a belated appeal and therefore that we did not have jurisdiction over the appeal. 

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

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

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

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

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

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

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

appeals the denial of that motion. 

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

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

Upon a motion for relief from default judgment, the burden is on the movant to 

show sufficient grounds for relief under Indiana Trial Rule 60(B). We review 

the grant or denial of a Trial Rule 60(B) motion for relief from judgment under 

an abuse of discretion standard. The trial court’s discretion is necessarily broad 

in deciding whether to vacate a default judgment because any determination of 

excusable neglect, surprise, [ ] mistake [or extraordinary circumstances] must 

turn upon the unique factual background of each case. The trial court must 

balance the need for an efficient judicial system with the judicial preference 

for deciding disputes on the merits. 

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

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

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

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

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

trial court in the exercise of its discretion. Brimhall v. Brewster, 864 N.E.2d 1148 (Ind. Ct. 
5

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

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

at 1153. 

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

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

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

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

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

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

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

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

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

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

more merit than the original, viz.: 

In his amended complaint, Smith clarified his legal claim, added defendants, 

and added federal claims. He has failed to argue on appeal that his federal 

claims are meritorious or that the clarifications and added defendants correct 

the deficiencies in the complaint that we have already described herein. Under 

these circumstances, we find that the trial court did not abuse its discretion in 

denying Smith’s motion to amend his complaint because the amendment 

would have been futile. 

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

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

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

Westville Control Unit have already been decided against Smith by this court – twice. 
6

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

App. 2012). 

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

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

(Ind. Ct. App. 2010). In order to prevail on a claim of substantive bad faith, a party must 
7

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

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

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

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

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

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

context. 

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

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

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

In any civil action, the court may award attorney’s fees as part of the cost to 

the prevailing party, if the court finds that either party: 

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

unreasonable, or groundless; 

 (2) continued to litigate the action or defense after the party’s claim or 

defense clearly became frivolous, unreasonable, or groundless; or 

 (3) litigated the action in bad faith. 

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

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

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

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

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

viz.: 
8

For purposes of awarding attorney fees pursuant to Indiana Code section 34–

1–32–1, a claim is “frivolous” if it is made primarily to harass or maliciously 

injure another, if counsel is unable to make a good faith and rational argument 

on the merits of the claim, or if counsel is unable to support the action by a 

good faith and rational argument for extension, modification, or reversal of 

existing law. A claim is “unreasonable” if, based upon the totality of the 

circumstances, including the law and facts known at the time of filing the 

claim, no reasonable attorney would consider the claim justified or worthy of 

litigation. A claim is “groundless” if no facts exist which support the legal 

claim relied upon and presented by the losing party. Finally, a claim is litigated 

in “bad faith” if the party presenting the claim is affirmatively operating with 

furtive design or ill will. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and Jacob liable to him. His efforts have produced nothing more than a series of essentially 
9

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

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

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

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

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

Appellees. 

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

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

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

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

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

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

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

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

Judgment affirmed and remanded with instructions. 

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