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I. STATEMENT OF ISSUES 1.

Whether the Trial Court erred when entering Summary Judgment in favor

Defendant-Village at Eagle Creek Home Owners Association (VECHOA) when genuine issues of material fact existed pursuant to Ind. TR 56. App. pp. 52. Further, Trial Court Special Judge Sherry K. Reid and Appellee/Defendant, VECHOAs counsel violated Indiana Rules of Professional Conduct. Trial Court Special Judge Reid granted the summary judgment in false pretense and the Appellee/Defendant, VECHOAs counsel misrepresented that this Appealed Trial Court Case is an extension of the Appellant/Plaintiffs Appeals from Small Claims Court Case. App. pp. 68 thru 104. a. Trial Courts Order granting Summary Judgment in false pretense for the

Defendant-VECHOA. In the Order, the Trial Court stated that the all parties were notified, appeared by counsel, heard oral arguments and submitted evidence. Appellee/Defendant-VEC HOAs counsels and the Judge Sherry K. Reid lied and signed the order granting summary judgment for the Appellee-VEC HOA. There was no notification of the hearing date to the Appellant therefore, there was no appearance, no oral arguments, no evidence submitted. The Trial Court issued the Order granting the summary judgment for the Appellee on May 12, 2011 before the scheduled the hearing on May 16, 2011. Pre-trial hearing was held on May 16, 2011 with the CHUBB Insurance only. App. pp. 52, 118. b. Subsequently, Appellants/Plaintiffs Exhibits (photos and document lists)

for each claim of the damaged property were ignored. The EXHIBIT LISTS were ignored and never had chance to be presented in the Court. App. pp. 13 thru 51.

c.

Appellee/Defendant-VECHOAs entire Designation of Evidence

Supporting Motion for Summary Judgment, paragraph A thru K was presented under false pretence as shown as follow: App. pp. 83. (1) Plaintiffs Respond to Defendants TR 12(e) Motion to Make Clear

Pleading. App. pp. 88. The Appellee/Defendant use the Appellants/Plaintiffs Respond only supports the Appellants cause for this Appealed Trial Court Case. It proves the Appellant cases merit and genuine issues left pursuant to Ind. TR 56 which the Trial Court erred when granting summary judgment in favor of the Appellee/Defendant. (Reference: State of Issues paragraph 1. a, b, c, 4.) (2) Affidavit of Becky Cruse. App. pp. 97. Becky Cruse is property

manager of the Appellee/Defendant-VECHOA. In her affidavit, she did not mention anything about the Appellants property damage which is the core of this Appealed Trial Court Case. Her affidavit consists of only a true copy of the VECHOAs Bylaws. App. pp. 97. The Appellant does not have any disagreement of the bylaws and do not have any issue with the bylaws. The Appellants lawsuit arises from proximate and ultimate causes of damages to her own condo unit. App. pp. 13 thru 51. (3) Appellee/Defendant-VECHOA by counsel of Designation of

Evidence Supporting Motion for Summary Judgment paragraph C thru K is taken from the Pike/Perry SCC (Small Claims Court) Case which has nothing to do with this Appealed Trial Court Case. Appellee/Defendant, VECHOA counsel deliberately misled the Trial Court by stating that this

Appealed Trial Court Case is an extension from the Case in the Perry Small Claims Court (SCC). Appeal from Small Claims Court Cause No. 49K04-1009-SC-03527 is not a duplicate claim but a stand alone lawsuit from this Appealed Trial Court Case. The Perry SCC cases initial Defendants were Shannon Lampsa & Kyle Love. When the Appellants/Plaintiffs received a copy of VECHOAs CHUBB Insurance Policy, the Appellants/Plaintiffs amended the Perry SCC lawsuit to sue the new Defendant, VECHOA. App. pp. 68 thru 80. The Trial Court must deal with the Appeal from the Small Claims Court Case separately but instead denied the case as moot. App. pp. 68 thru 82. Chronological Case Summary of the Appeals from SCC will show exactly what went on. App. pp. 81. 2. Whether the Trial Court erred when granting motion to dismiss in favor of

Defendant-CHUBB Insurance Companys because Appellant/Plaintiff failed to state a claim upon which relief can be granted pursuant to Ind. TR 12(B)(6). App. pp. 54. 3. Trial Court erred when applying the procedures to the appointment of Special

Judge-Sherry K. Reid pursuant to Ind. TR 79. App. pp. 62. 4. This Trial Court Case was set for jury trial by the Honorable Judge David A.

Shaheed. Jury Trail was requested by both Appellants/Plaintiffs and Appellee/Defendant. The Special Judge Reid overturned the prior proceedings as soon as she took over this Trial Court case and dismissed the case without a jury trial. App. pp. 56 thru 63. 5. Trial Court Special Judge Sherry K. Reid erred when ordering the Appellants to

make clear statement as to the Complaint. App. pp. 13, 64, 88.

6.

Trial Court Special Judge Reid did not rule/ignored/denied as moot the following: a. Appeal from the Small Claims Court is not a duplicate claim and is

independent from this Appealed Trial Court Case. Whether the Appellants/Plaintiffs can sue the new Defendant-VECHOA for the remaining claimed amount on a case which already won a court judgment for partial claim amount from the initial Defendants, Shannon Lampsa & Kyle Love. App. pp. 68 thru 82. b. Appellants/Plaintiffs filed Petition for hearing on Judicial Notice of party or parties to be sued pursuant to Ind. TR 201/17(B). App. pp. 66. c. Appellants/Plaintiffs filed Requested expense pursuant to Ind. TR 36, 37(A)(4). App. pp. 66. d. Appellants/Plaintiffs issued/filed Subpoena Duces Tecums against

VECHOA and CHUBB Insurance Company. App. pp. 107, 108. 7. Whether the undisputed evidences indicate that as a matter of law and/or merit,

either VECHOA, CHUBB Insurance, Owner of building 4250 upper unit 6 or any entity acting on their behalf, proximately and ultimately caused the damages claimed by the Appellants/Plaintiffs. 8. Appellants/Plaintiffs should be paid for punitive damages from

Appellee/Defendant, VECHOA for years of discrimination, fraud, nuisance and neglect for property damage claims in the Complaint. Paragraph I, II, III, IV, 14. App. pp. 16 thru 23. Appellees/Defendants-VECHOA and CHUBB Insurance conspired to discriminate, defraud and neglect the Appellants/Plaintiffs property damage claims. The Appellants/Plaintiffs should be paid for punitive damage for Claim I. App. pp. 16.

9.

Besides actual and punitive damage claims, the Appellants/Plaintiffs expenses

should be paid. Expenses include: direct costs and indirect cost-equivalent to attorney fees. II. STATEMENT OF CASE This case arises over the last 6 years from recurring proximate and ultimate causes of damages by water and toilet-excrement or sewer from the upper level condominium unit and/or leaking from the roof to the Appellants/Plaintiffs ceilings, walls, carpet (excrement/toilet water was discharged through the ceilings fire alarm hole) and vandalism to the vehicles, exterior of unit door and screen doors of the Appellants/Plaintiffs Kay Kim, Pro Se and Charles Chuangs, Pro Se ground floor condominium unit. App. pp. 13 thru 51. To date all claimed damages in the Appellants/Plaintiffs Complaint have not fixed and the Appellants/Plaintiffs are still living in the condo unit with the claimed damages. The Appellants/Plaintiffs attempted to be claim the damages from the Appellees/Defendants, VECHOA and CHUBB Insurance Company. App. pp. 25 thru 33. On November 10, 2010, Appellants/Plaintiffs, Kay Kim, Pro Se and Charles Chuang, Pro Se filed a Complaint for damages and Requested Jury Trial. This case was assigned to Civil Superior Court D01 under the honorable Judge David A. Shaheed. App. pp. 13. A Notice of Appointment of Special Judge Reid was given On January 19, 2011. App. pp. 62. The Appointment of Special Judge Sherry K. Reid violated the administrative procedures by not complying to Ind.TR 79(D)(E)(F) before appointment. Trial Court Special Judge Sherry K. Reid ignored/overturned all the previous proceedings. This Appealed Trial Court Case was set for jury trial on December 08, 2010 by the Honorable Judge David A. Shaheed. Both the Defendant-VECHOA and the Appellant/Plaintiff requested for a jury trial. App. pp. 115. Special Judge Reid ignored all previous proceedings.

On January 24, 2011 this Appealed Trial Court Case was transferred to Special Judge Sherry K. Reid, Special Judge Reid. Judge Reid erred when she ordered (her 1st order of business) the Appellants/Plaintiffs to file clear statement as to the Appellants/Plaintiffs Complaints pursuant to Ind.TR 12(e). App. pp. 64. Trial Court denied as moot the following Appellants/Plaintiffs motions: App. pp. 66 thru 82. Appellants/Plaintiffs filed Petition for hearing on Judicial Notice of party or parties to be sued pursuant to Ind. TR 201/17(B). App. pp. 66. Requested expense pursuant to Ind. TR 36, 37(A)(4). App. pp. 66. Appeals from Small Claims Court. App. pp. 68 thru 82. Subpoena Duces Tecums against the Defendants-VECHOA and CHUBB Insurance Company. App. pp. 107, 108. On May 12, 2011, Special Judge Sherry K. Reid granted Summary Judgment in favor of the movant-Appellee/Defendant, VECHOA. App. pp. 3, 13. Trial Court erred when granting Summary Judgment for the movant- Appellee/Defendant, VECHOA. This Summary Judgment for the Appellee/Defendant, VECHOA was not in pursuant to Ind.TR 56 and ordered under false pretense. App. pp. 52. On May 16, 2011, Special Judge Sherry K. Reid erred when dismissing the movantAppellee/Defendant, CHUBB Insurance Company. Special Judge Reid stated that the Appellants/Plaintiffs failed to state the claim which the court can be granted pursuant to Ind. TR 12(B)(6). App. pp. 54.

On May 16, 2011 Special Judge Sherry K. Reid in her final judgment denied as moot all outstanding motions of the Appellants/Plaintiffs. App. pp. 66 thru 82, 107, 108. (See STATEMENT OF ISSUE paragraph 5. a, b, c, d.) On June 6, 2011, Appellants/Plaintiffs filed the Joint Notice of Appeal. App. pp. 1. III. STATEMENT OF FACTS 1. Appellants/Plaintiffs moved into Village at Eagle Creek Condominium (VEC) in

1999. Since then, we have paid our monthly association fees up to date. VECHOA is obligated to purchase umbrella insurance for civil and criminal damages for the condominium on behalf of all the owners. App. pp. 43, 105. 2. Appellants/Plaintiffs real property damages claims are pursuant to Indianas Six-

year Statute of Limitations Actions for injuries to property other than personal property..., IC 34-11-2-7(3). 3. The Appellants/Plaintiffs is not disputing that each condominium owner shall be

responsible at his/her own expense for the maintenance, repairs and replacement of all interior and personal property for normal wear and tear. 4. This appealed Trial Court Case is for recurring damages to Appellants/Plaintiffs

ground floor condo unit by proximate and ultimate causes from above either immediate upper level unit, upper sewer connection, upper water connection &/or roof over the last 6 years. All the Appellants/Plaintiffs property damages in the Appealed Trial Court Case are caused by other person &/or outer sources/elements from above Appellants/Plaintiffs unit. 5. Appellants/Plaintiffs filed the Complaint against Appellees/Defendants-VECHOA

& CHUBB Insurance in year 2010 for the first time since the day the Appellants/Plaintiffs moved into condominium in 1999. App. pp. 13.

The Appellants/Plaintiffs Complaint, Claim I, III & IV property damage claims were filed in this Appealed Trial Court in year 2010. App. pp. 16 thru 20, 25 thru 33. The Appellants/Plaintiffs Complaint, Claim II of property damages claims were filed in year 2006 against the Defendants who was Appellants/Plaintiffs immediate upper level of condominium owners. This Claim II Court Case against the condo owners was dismissed pursuant to Ind. TR 12(B)(6) by the Honorable Judge Cale J. Bradford in 2006. App. pp. 121. Appellants/Plaintiffs brought Claim II against the new Defendant-VECHOA in 2010 in this Appealed Trial Court Case. Claim II is the only lawsuit filed for same property damage claims with different/new Defendant-VECHOA. Claim 1, III and IV property damage claims lawsuit in this Appealed Trial Court Case were filed for the first time against the Defendants. All other Claims in the Complaint of this Trial Court were also filed for the first time against the Defendants. However, the Appellants/Plaintiffs did not bring owners of immediate upper level in the lawsuit because of the Court Dismissal of Claim II in 2006 and the receipt VECHOAs umbrella insurance. The Appellants/Plaintiffs filed for the Trial Court Judge to take judicial notice for party or parties to be sued pursuant to TR 201/17(B). The Trial Court Special Judge ignored/denied the filing as moot. In year 2006 Defendant-owner of building 4250 unit 6, Chelsey Rasmussen & Tom Gusta admitted that Claim II (the property damages to the patio furniture and water coming down to Plaintiffs unit through fire alarm hole) in the Complaint was their tenants faults. The Plaintiff and the owners-building 4250 unit 6, Chelsey Rasmussen & Tom Gusta agreed to settle the case $350 for the property damages to the patio furniture by excrement (Tenant allowed the dog to pee and poop on the balcony.) App. pp. 120. At that time, there was no damage claim for the

soiled carpet because the water coming down from the unit above appeared to be clean. There is no excrement stain on the top of the carpet and the Defendant did not inform the Plaintiff otherwise. However, a few days later, the Appellants/Plaintiffs the water leaking from above was from the toilet when the carpet was cut and flipped over. App. pp. 121. The soiled carpet must be replaced because of health hazard. Due to financial difficulty the soiled carpet has not been replaced. In year 2006 Defendants-Chelsey Rasmussen & Tom Gusta, owner of building 4250 unit 6 admitted that there was a toilet over flow in the 2nd bathroom and in light of the Plaintiffs complaint on the carpet excrement stain, Defendant,-Chelsey Rasmussen filed a claim against their own insurance company - American Family. American Family Insurance denied the claim. App. pp. 113,114. Eventually in 2006 the Plaintiff, Kay Kim, Pro Se filed a lawsuit against Defendants-Chelsey Rasmussen & Tom Gusta. The case was dismissed by the Honorable Judge Cale J. Bradford. On the day of hearing the Judge said: 12(B)(6)! You are welcome to appeal! Ind. TR 12(B)(6), Failure to state a claim upon which relief can be granted, which shall include failure to name the real party... The Appellants/Plaintiffs filed a lawsuit on the same case (2006) against the new Defendant-VECHOA in this Appealed Trial Court in year 2010. Claim II of this Appealed Trial Court Case was dismissed by the Trial Court Special Judge Reid who granted Summary Judgment for the new Defendant-VECHOA in pursuant to Ind. TR 56 under false pretense. 6. Claim I of the property damages in the Appellants/Plaintiffs Complaint in

this Appealed Trial Court Case was initially filed claim against VECHOAs CHUBB Insurance. App. pp. 41. The Appellants/Plaintiffs claimed damages for excrement stain on the master bathroom ceiling, moisture on the master bathroom wall and water/excrement stain in the master bedroom ceiling. App. pp. 26, 29, 30. 9

On September 29, 2010, Appellees/Defendants ,VECHOA-Becky Cruse, property manager and CHUBB Insurance Co.-Kimberlyn J. Twiehaus, adjuster came to the Appellants/Plaintiffs condominium building 4250 unit 2 to assess the damages. The Adjuster took a few measurements of the master bathroom and master bedroom walls. She did not bring a moisture detector, which can detect moisture/damage above the ceiling and behind the wall. The CHUBB Insurance Adjuster deliberately came without the very basic and most important tool-moisture detector. The Appellants/Plaintiffs offered to cut open the ceilings and the walls, but the adjuster replied: We dont work that way. As they were leaving the unit, Appellants/Plaintiffs asked for a rough estimate of the damage. The Adjuster said, its about $3,000. On September 30, 2010, the Appellants/Plaintiffs, Kay Kim, Pro Se was told over the phone by CHUBB Insurance Adjuster, Kimberlyn J. Twiehaus and her Supervisor, Sandra Vanmill that they will be closing Appellants/Plaintiffs, Kay Kims claim file because there is no damage and will not issue a written report. Claim III in the Complaint of the property damages were the dining room and living room ceilings & the wall. A couple years back, the Appellants/Plaintiffs noticed that the ceiling dripping a few millimeters and the seams of the ceilings drywall are coming apart. App. pp. 27, 28. Claim IV in the Complaint of the property numerous vandals on vehicles, exterior of unit door, window screens. App. pp. 31 thru 33. 7. Whenever there were property damages which occurred by other(s) &/or outer

source-proximate & ultimate appeared on the Appellants/Plaintiffs ceilings and the walls, immediate upper level current owner of building 4250 unit 6 -Shannon Lampsa & Kyle Love and VECHOA denied of any responsibility. Since Claim II in the Complaint in this Appealed Trial

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Court Case against the immediate upper level previous owner of building 4250 unit 6-Chelsey Rasmussen &Tom Gusta were dismissed by Judge Cale J. Bradford, immediate upper level current owner of building 4250 unit 6 and VECHOA conspired to bully and intimidate the Appellants/Plaintiffs. 8. Appellants/Plaintiffs vehicles, unit door (outside), window screens damages

occurred many times over the years and the damages are not random occurrence. App. pp. 31 thru 33. VECHOA intensified the hostile environment whenever the Appellants/Plaintiffs asked to be compensated for the property damages (inside unit). The Appellant/Plaintiff have constantly been discriminated, intimidated, harassed by the VECHOA Board of Directors, property managements, owners/residents of building 4250. The Appellants/Plaintiffs were told to move out by the VECHOA President, Bryan Wheatfield and VECHOA maintenance man. The VECHOA property manager told the Appellants/Plaintiffs that she will make their life very miserable if they do not move out of the condominium. Various emails from the VECHOA show their discrimination, intimidation, fraud and neglect towards the Appellants/Plaintiffs: ... will not be placing a Security camera... there was nothing wrong with your door.... The front door of your unit is your responsibility.... App. pp. 34. ...VEC HOA will not be firing Becky or Gene over the issue.... App. pp. 35. ...You can demand all you wish...It is not a VECHOA issue it is a private issue. . App. pp. 36. The leak that is coming into your bathroom from the upstairs unit is not the responsibility of the VECHOA..., ...Since the Loves have not responded to your request and the threat of lawsuit did not work, you are now threatening the VECHOA with the same action. This is clearly a dispute between two Owners. If you choose to involve the VECHOA in any legal litigation, we will respond to recover any Legal cost that we incur in this frivolous matter.. App. pp. 37. It is your responsibility to determine the cause of the

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damage.... App. pp. 38. Once you determine what is the cause..., ...If you file a lawsuit, you still need to prove who is at fault...Please call someone to look at your damages and determine the cause.. App. pp. 39. If I send the insurance adjuster out to your unit, they will want you to determine the cause of the leak. I will send the adjuster out.... App. pp. 40. Have you ever thought of moving to a place where youd feel more comfortable?.... App. pp. 112. The VECHOA boards and management often ignore and do not response to any request from the Appellants/Plaintiffs. 9. The Appellant/Plaintiff openly accuse the VECHOA Board of Directors and

management for embezzling the VECHOA funds, but the Appellee/defendant-VECHOA never defend themselves and choose to remain silent on the subject matter. VECHOA does not sue the Appellants/Plaintiffs for the accusation for fear of exposing the truth. VECHOA Board of Directors and the management ignored the bylaws and embezzled the funds openly. The VECHOA is obligated under the bylaws to provide accounting details of all transactions to all owners. App. pp. 106(f)(g)(h). The Appellants/Plaintiffs received VECHOAs financial audit by CPA (Certified Public Accountant) once a year. All the CPAs reports contain one common statement: ...We have not audited or reviewed the accompanying financial statements, and accordingly, do not express an opinion or any other form of assurance on them. Management has elected to omit substantially all of the disclosures... Accordingly, these financial statements are not designed for those who are not informed about such matters. App. pp. 109. ...We just commissioned a full audit from a certified public accountant... I cant believe how you can find malfeasance where the accountant couldnt. I dont understand why you dont just leave all your miseries behind and simply move away from here... App. pp. 112.

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VECHOA boards and management openly embezzle millions from the condo funds contrary to its bylaws. Under Section 3.05(a)(f)(g)(h)(i) the VECHOA Boards must provide and issue detailed financial statement to all owners. The Trial Court should not ignore/deny as moot issue of Subpoena Duces Tecum to the Defendant/Appellee-VECHOA & CHUBB Insurance. App. pp. 107, 108. The VECHOA claimed that they have never paid any property damage claims to any of the 200 home owners is not true. With the reply from the Subpoena Duces Tecum the Appellants/Plaintiffs can prove that there were payments made to other home owners property damage claims-civil and criminal. It will also show that the VECHOA discriminate, defraud, and neglect the Appellants/Plaintiffs property damage claims. App. pp. 105, 106. 10. Appeals from the Small Claims Courts initial Defendants were the owner of

upper level unit 6 - Shannon Lampsa & Kyle Love. Perry SCC Judge Robert S. Spear granted the Plaintiffs petition to dismiss the case without prejudice and attach it to this Appealed Trial Court Case. App. pp. 68 thru 81. The counsel(s) of the Appellee/Defendant-VECHOA intentionally misrepresented in their designation of evidence supporting motion for summary judgment that the Appeals from the Small Claims Court was a duplicate claim and a continuation of this Appealed Trial Court Case. App. pp. 83 thru 87. The Counsels of Appellee/DefendantVECHOAs have violated the Indiana Rules of Professional Conduct with the intentional false statements. The Appellants/Plaintiffs initially sued the Defendants-Shannon Lampsa & Kyle Love, owner of upper level unit 6 in the Pike SCC. The case was transferred to Perry SCC where the Appellants/Plaintiffs won the Judgment for 1/3 of the claimed amount. When the Appellants/Plaintiffs was given the VECHOA umbrella insurance information, the Appellants/Plaintiffs sued the new Defendant-VECHOA to recover the remaining 2/3 of the

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claimed amount. This appealed Small Claims Court Case is not a duplicate claim and is independent from this Appealed Trial Court Case. Trial Court Special Judge Sherry K. Reid ignored/denied as moot this claim. For the reason(s) presented above, the Plaintiff, Kay Kim, Pro Se requested the Perry SCC to dismiss the case so that it can be attached to an ongoing case in the State Civil Superior Court /this appealed Trial Court Case. The Perry SCC granted the Plaintiffs petition. App. pp. 74. 11. Claim II in this Appealed Trial Court Case Complaint which was dismissed by

Judge Cale J. Bradford in 2006. While the Appellant/Plaintiff was pursuing the lawsuit in 2006, Plaintiff, Kay Kim, Pro Se was jailed for trespassing in the City/County Building. The Criminal Case was subsequently dismissed in 2009. The Appellant/Plaintiff, Kay Kim, Pro Se filed the lawsuit in year 2008 against the Judge Sosin, Magistrate Judge, and the Court Staff (which is the original court of the lawsuit which Judge Bradfords dismissed in 2006) in the Federal District Court. This Federal lawsuit is still ongoing as of today. 12. The court does not give any leniency on the procedure of the Court or the Law

just because the Appellants/Plaintiffs are pro Se. On the contrary everyone (including the judges) involves in the Appellants/Plaintiffs case(s) often gang up (even to the extent of breaking the law) to dismiss my-Plaintiff case. The Appellant/Plaintiff have to work 2 to 3 times harder than all the lawyers combined so the Appellants/Plaintiffs should be paid all expenses and equivalent lawyers fees for this lawsuit. IV. SUMMARY OF ARGUMENT Trial Court Special Judge Sherry K. Reid erred when granting Summary Judgment for the movant, Defendant/Appellee-VECHOA stating that no genuine issue of material fact exists. Trial

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Court Special Judge Sherry K. Reid Order for Summary Judgment was issued under false pretense. Special Judge Reids Order granting the Summary Judgment is erroneous and not supported by the Ind. TR 56. Special Judge Reid erred when granting Motion to Dismiss for the Appellee-CHUBB Insurance Company under Ind. TR 12(B)(6) stating that the Appellants/Plaintiffs failed to state a claim upon which relief can be granted. Appellants/Plaintiffs have stated a detailed (item by item, line by line and dollar amount claimed) damages in the Complaint. The Appellants/Plaintiffs also stated the request for relief in detail in the Complaint. A Claim is legally actionable wherever and whenever there is a presence of damage(s) to the properties exists due to proximate and ultimate causes. Special Judge Sherry K. Reid ignored/overturned the prior proceeding by the Judge Shaheed and acted like the head of the Defendants/Appellees. This Appealed Trial Court Case was already set for jury trial by Honorable Judge David A. Shaheed after the Appellee/Defendant requested for jury trial. A few days later for reason(s) unbeknown to the Appellants/Plaintiffs, this case was transferred to Civil Superior Court 14 under Special Judge Sherry K. Reid without the proper procedure pursuant to Ind. TR 79. When Special Judge Reid took over the case, her 1st order of business was to order the Appellants/Plaintiffs to file/make a clear statement as to the Complaint. The Appellants/Plaintiffs Complaint was properly filed pursuant to Ind. TR 3. If Appellants/Plaintiffs property damages were occurred because of normal wear and tear, the Appellees/Defendants does not have any responsibility to compensate the Appellants/Plaintiffs. The Appellees/Defendants are responsible for the Appllants/Plaintiffs property damages when the damages arise from recurring proximate and ultimate causes of damages by water and toilet-excrement or sewer from other person &/or source(s)-upper level 15

condominium unit and/or leaking from the roof to the Appellants/Plaintiffs ceilings, walls, carpet (excrement/toilet water was discharged through the ceiling fire alarm hole) and vandalism to the vehicles, exterior of unit door and screen doors of the Appellants/Plaintiffs ground floor condominium unit over the last 6 years. V. ARGUMENT A. STANDARD OF REVIEW Indiana Trial Rule 56. Trial Court Special Judge Sherry K. Reid erred when granting Summary Judgment in favor of Appellee/Defendant-VECHOA because there is no genuine issue of material facts left under Ind. TR 56. There are sufficient evidences in the Claim to establish that there are genuine issues as to material facts to survive the Summary Judgment. The issue would best be determined by a jury. The standard of review on the entry of judgment granting summary relief is de novo. Kluver v. Weatherford Hosp. Auth., 1993 OK 85, 859 p.2d 1081, 1084. Indiana Trial Rule 56, specified that Summary Judgment is only appropriate if the pleadings and evidence submitted demonstrate there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law, Ind. TR 56(C). examine the pleadings and evidentiary materials submitted by the parties to determine if there is a genuine issue of material fact and view the facts and all reasonable inferences arising therefrom in the light most favorable to the nonmoving party. Carmichael v. Beller, 1996 OK 48, 914 P.2d 1051, 1053. A dispute about a material fact is genuine only if it cannot be foreclosed by reference to undisputed facts and is such that a reasonable jury could return a verdict for the non-moving party. Welda v. Dowden, 664 N.E.2d 742, 747 (Ind. Ct. App. 1996). The Appellants/Plaintiffs are confident that a reasonable jury will return a verdict for the nonmoving party-Appellants/Plaintiffs.

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Indiana Trial Rule 56(E) Form of affidavitsFurther testimonyDefense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein, Ind. TR 56(E). All pleadings, affidavits, and designated evidence are construed liberally and in the light most favorable to the non-moving party. May v. Franhiger, 716 N.E.2d 591, 594 (Ind.App. 1999). Summary Judgment is appropriate when the pleadings, affidavits, depositions, admissions or other evidentiary materials show there is no substantial controversy as to any material fact and one party is entitled to judgment as a matter of law. Tucker v. ADG, Inc., 2004 OK 72, 102 P.3d 660, 665. For summary judgment purposes, a fact is material if it bears on ultimate resolution of relevant issues. Yin v. Socy Natl Bank Ind., 665 N.E.2d 58, 64 (Ind. App.1996), trans. denied. Any doubt as to the existence of an issue of material fact, or an inference to be drawn from the facts, must be resolved in favor of the non-moving party. Am. Mgmt., Inc. v. MIF Realty, L.P., 666 N.E.2d 424, 428 (Ind. App. 1996). Where material facts conflict, or undisputed facts lead to conflicting inferences, summary judgment should not be granted, even if the judge feels the plaintiff will not succeed at trial. Wilson v. Royal Motor Sales, Inc., 812 N.E.2d 133, 135 (Ind. App. 2004); see also Gen. Housewares Corp. v. Natl Sur.Corp., 741 N.E.2d 408, 412 (Ind. App. 2000) (On appeal, we must carefully scrutinize an entry of summary judgment to ensure that the non-prevailing party is not denied his or her day in court.). proceeds from the premise that summary judgment is a lethal weapon and that courts must be ever mindful of its aims and targets and beware of overkill in its use. PSI Energy, Inc. v. Home Ins. Co., 801 N.E.2d 705, 713 (Ind. App. 2004)(quoting Bunch v. Tiwari, 711 N.e.2d 844, 847 (Ind. App. 1999)). Even when basic facts are undisputed, motions for summary judgment should be denied if, under the evidence, reasonable persons might reach different

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inferences or conclusions from the undisputed facts. Bird v. Coleman, 1997 OK 44, 939 P.2d 1123, 1127. 1. Order of Summary Judgment done under false pretense.

Trial Courts Order granting Summary Judgment for the Defendant-VECHOA was issued under false pretence. In the Order, the Trial Court misstated that the all parties were notified, appeared by counsel, heard oral arguments and submitted evidence. There were no appearance by counsel, no oral arguments and no evidence submitted before May 12, 2011, when the Order of Summary Judgment was issued. The only hearing for the Case was held on May 16, 2011. App. pp. 52,118. 2. Plaintiffs Exhibit Lists and Photos.

Trial Courts Order granted Summary Judgment under false pretense for the DefendantVECHOA. In the Order, the Trial Court statement that the all parties were notified, appeared by counsel, heard oral arguments and submitted evidence was falsely presented when the Order for Summary Judgment was issued on May 12, 2011. App. pp. 52,118. As a result the Appellants/Plaintiffs Exhibits (photos and document lists for each claimed) for damaged property of in the Complaint and EXHIBIT LISTS were ignored and never allowed to be presented to the Court. App. pp. 13 thru 51. Ind. TR 56(C), ...there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law... the court shall make its determination from the evidentiary matter designated to the court. 3. Appellee/Defendantss misrepresentation and insufficient designation of evidence to support motion for summary judgment.

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The entire Designation of Evidence Supporting Motion for Summary Judgment, paragraph A thru K by the Appellee/Defendant-VECHOA was done under false pretence and/or not supported by Ind. TR 56 as shown below: App. pp. 83. a. Appellants/Plaintiffs Complaint satisfies Indiana Trial Rule 3. Plaintiffs Respond to Defendants TR 12(e) Motion to Make Clear Pleading. App. pp. 88. Appellee/Defendants frivolous use of Appellants/Plaintiffs Respond only supported the Appellants/Plaintiffs cause for this appealed Trial Court Case and strengthen the Appellants/Plaintiffs case that there are genuine issues left in pursuant to Ind. TR 56 and the Trial Court erred when granting summary judgment in favor of the Appellee/Defendant. (Reference: State of Issues paragraph 1. a,b,c, 4.) Trial Court Special Judge Sherry K. Reid erred when ordering the Appellants/Plaintiffs to make clear statement as to the Complaint. App. pp. 64. Appellants/Plaintiffs Complaint was filed in pursuant to Indiana Trial Rule 3. Commencement of an action as a Complaint is not a pleading or document. A civil action is commenced by filing with the court a complaint or such equivalent pleading or document as may be specified by statute, by payment of the prescribed filing fee..., Ind. TR 3. Trial Court Special Judge Sherry K. Reid thereby erred when ordering the Appellants/Plaintiffs to make clear statement as to the Complaint. App. pp.13, 64, 88. Absence of key witness/Defendant/Appellees affidavit of Kimberlyn J. Twiehaus, CHUBB Insurance adjuster and absence of the subject matter of this Trial Court case that the witness/Defendant/Appellees VECHOA property manager Becky Cruse is insufficient evidence to support summary judgment. 19 b.

Affidavit of Becky Cruse. App. pp. 97. Becky Cruse is property manager of the Appellee/Defendant-VECHOA. In her affidavit, she did not mention anything about the Appellants/Plaintiffs property damage which is the core of the Appealed Trial Court Case. Her affidavit contains only a true copy of the entire VECHOA Bylaws as an exhibit. Her affidavit is thus very unprofessional and misleading. The Appellants/Plaintiffs do not have any issue with the VECHOA bylaws and there is no reason or need to attach the entire book of bylaws as exhibit. If there is an issue with the bylaws in the Appealed Trial Court Case only the relevant paragraphs or pages pertaining to the Case need to attached. The Appellee/Defendant-VECHOA does not better thing to present to the Trial Court except dumping the entire book of bylaws as supporting evidence. Appellee/Defendant-VECHOA property manager, Becky Cruses affidavit is useless because she did not deny or admit whether there was property damage when she and Appellee/Defendant - CHUBB Insurance adjuster, Kimberlyn J. Twiehaus were in the Appellants/Plaintiffs unit to assess the damages. App. pp. 98. The Appellants/Plaintiffs property damage is the core matter in this Appealed Trial Court Case. Appellee/Defendant-VECHOA property manager, Becky Cruse did not deny any Appellants/Plaintiffs property damage. The absence of an affidavit from the Appellee/Defendant - CHUBB Insurance adjuster, Kimberlyn J. Twiehaus only strengthen the Appellants/Plaintiffs property damage claims. The Appellants/Plaintiffs does not have any disagreement with the bylaws and does not dispute the validity of the copy of the

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bylaws. The Appellants/Plaintiffs even agree that any damage due to normal wear and tear is responsibility of the each unit owner.

c.

Appellants lawsuit arises from proximate and ultimate causes of damages to the own condominium unit and not from normal wear and tear. Appellants lawsuit arises from proximate and ultimate causes of damages to the own condominium unit and not own use of normal wear and tear.

App.

pp. 13 thru 51. Ind. TR 56(E), ...Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be evidence, and shall show affirmatively that the affiant is testify to the matters stated therein.... The Appellee/Defendant VECHOAs property manager - Becky Cruse and Appellee/Defendant CHUBB Insurance Adjuster - Kimberlyn J. Twiehaus came to the Appellants/Plaintiffs condo unit to assess the claimed damages. There is no affidavit from the Appellee/Defendant-CHUBB Insurance adjuster Kimberlyn J. Twiehaus. The only affidavit from Appellee/Defendant VECHOA property manager -Becky Cruse, did not state any relevant issue to the Appellants/Plaintiffs property damage claims. It did not state whether there was/were any property damage(s). App. pp. 97. d. Appellants/Plaintiffs Appeals from Small Claims Court is independent and not a duplicate from this Trial Court. Defendants counsels misrepresented that the Small Claims Court Case is the same as the Appealed Trial Court Case. Paragraph C thru K in the Appellee/Defendant-VECHOA counsel Designation of Evidence Supporting Motion for Summary Judgment is taken

admissible in competent to

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directly from the Pike/Perry SCC Case which is independent and has nothing to do with this Appealed Trial Court Case. Appellee/Defendant, VECHOA counsel misleads the Trial Court by misstating that this Appealed Trial Court Case is an extension from the Perry Small Claims Court (SCC). App. pp. 83. Appeals from the Small Claims Court Case is not a duplicate claim and is not related to this Appealed Trial Court Case. Appeals from Small Claims Court case was filed in Pike SCC on April 21, 2009 and transferred to Perry SCC on July 27, 2009. App. pp. 71, 72. Initial Defendants to the SCC Case were Shannon Lampsa & Kyle Love. App. pp. 72, 73, 79, 122. The Appellants/Plaintiffs later amended the Complaint and paid $13.00 to bring new Defendant-VECHOA. App. pp. 74, 81. The Appellants/Plaintiffs final amendment on January 05, 2011 was to claim the remaining $2,000 balance from the new Defendant-VECHOA for the original Pike SCC suits claim of $2, 726.82. The Appellants/Plaintiffs have already won the Case from initial Defendant-Shannon Lampsa & Kyle Love on September 29, 2009. App. pp. 72-74, 79. In this Appealed Trial Court Case, the Appellee/Defendants counsels knowingly misrepresented that this Appealed Trial Court Case was an extension to the appeals from Perry Small Claims Court and that Perry SCC Judge Robert S. Spear tried and dismissed the case. App. pp. 83. The Chronological Case Summary of the Small Claims Court Case is self explanatory. It only contained a list of continuations. App. pp. 79 thru 82.

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The reason for the numerous continuations was because no Defendants show up until the last day of dismissal of the case on January 05, 2011. App. pp. 81. When the Plaintiff filed for default judgment, the Court was silent on the matter. The Court instead continued the case with its own motion on behalf of the Defendant(s). App. pp. 81. The Perry Small Claims Court Honorable Judge Robert S. Spear granted the Appellants/Plaintiffs petition to dismiss the case without prejudice and attached the case to this Appealed Trial Court Case. App. pp. 74. Therefore, Defendants counsel should not bring any subject matter prior to the amendment. Appellants/Plaintiffs Amended Complaint supersedes any prior Complaint. Appellee/Defendant-VECHOAs counsels violated Indiana professional conduct: Ind. PC 8.4. It is professional misconduct for a lawyer to: (a) through the (c) (e) violate the (f) law. Ind. TR 15 ... a party may amend... shall be given when justice so requires. Fed. RCP R.15 provides that leave to amend pleadings shall be freely given when justice so requires. 23 violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so acts of another; engage in conduct involving dishonesty, fraud, deceit or misrepresentation; state or imply an ability to influence improperly a government agency or official or to achieve results by means that Rules of Professional Conduct or other law; Knowingly assist a judge or judicial official in conduct that is a violation of applicable rules of judicial conduct or other

justify Bryant v.

[t]he lengthy nature of litigation, without any other evidence of prejudice to the defendants or bad faith on the part of the plaintiffs, does not denying the plaintiffs the opportunity to amend their complaint. Dupree, 11th Circuit Court.

The purpose of Summary Judgment is to assess the proof in order to see whether there is a genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith RadioCorp., 475 U.S. 574, 587 (1986). If a material fact relevant to the outcome of the case at issue is in dispute, summary judgment cannot be granted. McComb v. Memory Gardens Management Corp., 813 F.Supp. 663 (N.C. Ind. 1992). The inquiry on summary judgment boils down to whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue raise. Vitug v. Multistate Tax Commn., 88 F.3d 506, 512 (7th Cir. 1996). In doing so, the court will not weight the credibility of witnesses or evidence because evaluating credibility, weighing evidence, and reaching factual inferences are only within the province of the jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Rather, the courts role is limited to assessing whether a genuine issue of material fact exists, thereby creating the need for trial. Anderson, 477 U.S. at 255. The moving party must illustrate for the court that there is an absence of evidence in support of the non-moving partys claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The court must likewise draw all reasonable inferences and resolve all disputed facts in favor of the non-moving party. Solon v. Kaplan, 398 F.3d 629, 631 (7th Cir. 2005). Additionally, the plaintiffs version of the facts is presumed to be correct and is accepted to be true. Rush v. McDonalds Corp., 966 F.2d 1104, 1107 (7th Cir. 1992). The plaintiff is entitled to any benefit of doubt in all summary judgment inquiries. Santiago v. Lane, 894 F.2d 218, 224 (7th Cir. 1990). B. STANDARD OF REVIEW Indiana Trial Rule 12(B)(6).

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Trial Court Special Judge Sherry K. Reid erred when dismissing CHUBB Insurance that the Plaintiff is Failure to state a claim upon which relief can be granted..., under Ind. TR 12(B) (6). The Trial Court erred in entering a judgment dismissing the complaint. Because TR 12(B) allows a party an absolute right to amend a pleading when a motion to dismiss for failure to state a Claim Is sustained... Gregory & Appel, Inc. v. Duck, 459 N.E.2d 46, 49 (Ind. Ct. App. 1984). A motion for judgment on the pleadings should be granted only when it is clear from the face of the complaint that under no circumstances could relief be granted. Natl R.R. Passenger Corp. v. Everton by Everton, 665 N.E.2d 360, 363 (Ind. Ct. App. 1995), trans. denied (1996). On May 16, 2011 at the hearing, Special Judge Sherry K. Reid erred when dismissing for the movant-Appellee/Defendant, CHUBB Insurance Company that Appellants/Plaintiffs failed to state the claim which the court can be granted pursuant to 12(B)(6). App. pp. 54. 1. Appellees/Defendants-CHUBB Insurance Adjuster, Kimberlyn J. Twiehaus and

VECHOAs property manager, Becky Cruse came to Appellants/Plaintiffs condominium unit for claimed damages assessment. When assessing water damage an insurance adjuster must have a moisture detector to detect damage above the ceiling or behind the walls. The Adjuster did not bring a moisture detector on the day of assessment. The Appellants/Plaintiffs offered to open the damaged areas but she said, we dont work that way. She took a few measurement of the damaged areas-master bathroom and master bedroom. As CHUBB Insurance adjuster, Kimberlyn J. Twiehaus walked away and she said, The damage is about $3,000.00 . The next day, Appellants/Plaintiffs was told by the Adjuster, Kimberlyn J. Twiehaus and her Supervisor, Sandra Vanmill that they will close Appellants/Plaintiffs, Kay Kims claim because there is no damage and will not issue a written report. Furthermore, they told Appellants/Plaintiffs that they

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have obligation to the VECHOA and not to the Appellants/Plaintiffs. CHUBB Insurance and VECHOA conspired to lie about the Appellants/Plaintiffs damages. VECHOAs yearly tax free revenue is about $400,000.00 from over 200 units. Any insurance company almost will do whatever it takes to have VECHOAs business. In this Trial Court case, CHUBB Insurance Adjuster, Kimberlyn J. Twiehaus did not provide affidavit of any kind. Instead, CHUBB Insurance mislead/lied to the Trial Court that the Appellants/Plaintiffs damages are due to the Appellants/Plaintiffs faults and that they are not responsible. CHUBB Insurance admitted their guilt of fraud and negligence/gross negligence and the Appellants/Plaintiffs claimed damages by their silence and lack of action. Evidence of photos speaks itself. App. pp. 25 thru 33. Appellants/Plaintiffs claimed damaged areas and its commensurate amount in the Complaint paragraph Claim I and request for relief. App. pp. 16 thru 18, 22. 2. VECHOAs tax free yearly revenue is about $400,000.00. VECHOAs civil and

criminal deductable are $5,000.00 and $1,000.00. CHUBB Insurance and VECHOA conspired to lie that the Appellants/Plaintiffs property damages are due to normal wear and tear. 3. Appellants/Plaintiffs offered to Defendants, CHUBB Insurance adjuster,

VECHOA property manager, Trial Court Special Judge Reid and the Defendants counsels to come Appellants/Plaintiffs condo unit and cut open the ceiling and wall to expose the claimed damaged areas. If photos are not good enough then one has to cut open and see the hidden area of the damaged areas of the ceilings and the walls in the Appellants/Plaintiffs unit. 4. These recurring sustain damages to the Appellants/Plaintiffs property is the cause

of action and legally actionable pursuant to IC 34-11-2-7(3) which states actions for injuries to property other than personal property must be commenced within six years after the cause of action accrues.

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5.

Appellants/Plaintiffs stated in the Complaint claimed details and exact dollar

amount to be compensated line by line which pursuant to Ind. TR 12(B)(6). App. pp. 16 thru 20. 6. Trial Court Special Judge ignored/denied as moot Appellants/Plaintiffs request

for relief. Appellants/Plaintiffs request for relief in the Complaint satisfy Ind. TR 12(B)(6). App. pp. 21 thru 23. C. THE UNDISPUTED EVIDENCE DEMONSTRATS THAT THE APPELLANTS/PLAINTIFFS PROPERTY DAMAGE CLAIMS WERE NOT DUE TO NATURAL WEAR AND TEAR BUT THE RECURRING PROXIMATE AND ULTIMATE CAUSED BY THE WATER &/OR EXCREMENT/BLACK WATER. A partys act is the proximate cause of an injury if it is the natural and probable consequence of the act and should have been reasonably foreseen and anticipated in light of the circumstances. Munsell v. Hambright, 776 N.E.2d 1272, 1279 (Ind. Ct. App. 2002), trans. denied. Proximate cause requires, at a minimum, that the harm would not have occurred but for the defendants conduct. Id. The plaintiff does not have to prove that actions undertaken in furtherance of the conspiracy were the only or most immediate, cause of the injuries. Intervening acts which are readily foreseeable and the proximate result of the conspirators actions will not break the chain of legal causation. Vance v. Chandler, 231 Ill App3d 747, 173 Ill Dec 525, 597 NEx2d 233 (1992) app den 147 Ill2d 637, 180 Ill Dec 159, 606 Ne2d 1236 (1992). ... the concept of proximate causation in tort law, in the last analysis, the court must make a judgment call. Tae v. Tae, 57 Mass. App. Ct. 297, 783 N.E.2d 827 (2003). ... The problem comes about when the act, seemingly innocent, causes changes so subtle and latent that they are not discoverable to the plaintiff until they manifest themselves many years later. Barnes v. A.H. Robins Co, Inc. 476 N.E.2d 84, 86 (Ind. 1985)(emphasis added). D. TRIAL COURT ERRED APPLYING PROCEDURES OF APPOINTMENT OF SPECIAL JUDGE-SHERRY K. REID PURSUANT TO IND. TR 79. App. pp. 62. 27

The Appointment of Special Judge Sherry K. Reid violated the administrative procedures when Ind.TR 79(D)(E)(F) were skipped and only Ind.TR 79(H) is applied to the Appointment.

Ind. TR 79 (D) Agreement of the parties..., (E) Selection by court. In the event the parties fail to agree or are not permitted to agree to the appointment of a special judge under Section (D)..., Selection by Panel. In the event a special judge is not selected under Sections (D) or (E) of this rule, this section shall be used for the selection of a special judge..., Selection under local rule....

(F)

(H) E.

TRIAL COURT SPECIAL JUDGE SHERRY K. REID ABUSED POWER AND ACTED AS A HEAD OF DEFENDANTS COUNSEL. 1. Trial Court Special Judge Sherry K. Reid ignored/overturned the previous proceeding by the Judge David A. Shaheed who has already set this case for jury trial on June 21, 2011.

Trial Court Special Judge Sherry K. Reid ignored/overturned the previous proceeding by the Honorable Judge David A. Shaheed when this case was set for jury trial on June 21, 2011. Appellants/Plaintiffs and Defendants filed with the Court demanding the Jury Trial. Honorable Judge David A. Shaheed granted the motions and set the jury trial on June 21, 2011. App. pp. 115. Per Order of the Court, Appellants/Plaintiffs completed and filed the Case Management with the Court. App. pp. 59. 2. clear As soon as the Trial Court Special Judge Reid took over the case, her 1st order of business was to order the Plaintiff/Appellant to file/make statement as to Appellants/Plaintiffs original Complaint.

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Trial Court Special Judge Sherry K. Reid erred when ordering the Appellants to make clear statement as to the Complaint. App. pp. 64. Appellants/Plaintiffs Complaint filed pursuant to Indiana Trial Rule 3. Commencement of an action as a Complaint and not a pleading or document. A civil action is commenced by filing with the court a complaint or such equivalent pleading or document as may be specified by statute, by payment of the prescribed filing fee..., Ind. TR 3. Trial Court Special Judge Sherry K. Reid erred ordering the Appellants/Plaintiffs to make clear statement as to the Complaint. App. pp. 13, 64, 88. Appellants/Plaintiffs Complaint satisfies Indiana Trial Rule 3. 3. Trial Court Special Judge Reids Order granting summary judgment was false pretense for the Defendant/Appellee-VECHOA.

Trial Court Special Judge Reids Order granting summary judgment was false pretense for the Defendant/Appellee-VECHOA. In the Order, the Trial Court stated that the all parties were notified, appeared by counsel, heard oral arguments and submitted evidence were falsely presented. There was no appearance by counsel, no oral arguments, no evidence submitted before the Order of Summary Judgment was issued on May 12, 2011. The only hearing was on May 16, 2011. App. pp. 52,118. Trial Court Special Judge Sherry K. Reid violated demonstrated her intent to dismiss this Trial Court case regardless of its merits and laws. Trial Court Special Judge Reid violated Indiana Judicial Conduct: Ind. JCC1, Impropriety A judge Shall Uphold and Promote the Independence, Integrity, and Impartiality of the Judiciary, and Shall Avoid and the Appearance of Impropriety.

Ind. JCC1 R1.2, A judge shall act at all times in a manner that promotes public confidence in the independence,* integrity,* and *impartiality* of the judiciary, and shall avoid impropriety and the appearance of impropriety. 29

Ind. JCC2,

A judge Shall Perform the Duties of Judicial Office Impartially, Competently, and Diligently. Comment [1] A judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the into disrepute.

judiciary

F.

APPELLANTS/PLAINTIFFS SHOULD BE PAID FOR PUNITIVE DAMAGE, DIRECT AND INDIRECT COSTS OF THIS ACTION AND FOR ALL OTHER JUST AND PROPER RELIEF IN THE PREMISES. Punitive damages are not designed to make a plaintiff whole but rather to deter and

punish wrongful activity. Wohlwend v. Edwards, 796 N.E.2d 781 (Ind. Ct. App. 2003). Because an award of punitive damages goes beyond compensation for a Plaintiffs losses and damages, they are only awarded if a Defendants conduct was so obdurate that the Defendant should be punished for the good of the overall general public. Bell v. Clark, 670 N.E2d 1290 (Ind. 1996), Budget Car Sales v. Stott, 656 N.E.2d 261 (Ind. Ct. App. 1995). Where a nuisance is not abated after one verdict, punitive damages may be awarded in a second action brought for the continuance of the nuisance. Cashin v Northern P. R. Co. (1934) 96 Mont 92, 28 P2d 862. Property owners could seek emotional damages based on claims for trespass, nuisance... Hassoldt v. Patrick Media Group, Inc., 84 Cal. App. 4th 153, 100 Cal. Rptr. 2d 662 (2d Dist. 2000). ....ratio of punitive damages to actual damages was seven to one, and there was no evidence that neighbors could not afford to pay punitive damages. Shrader-Miller v. Miller, 2004 ME 117, 855 A.2d 1139 (Me. 2004).

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Prejudgment interest is often allowed-either as a matter of right or in the courts discretion-as part of the damages assessed in actions for injury to real property. Torrans v TriState Iron & Metal Co. (1964Tex Civ App Texarkana) 381 SW2d 668; Leibowitz v Mt. Vernon (1937) 253 App Div 758, 300 NYS 1167. ... tort was committed against the property intentionally, willfully, or maliciously, exemplary or punitive damages may be allowed. Claude v Weaver Constr. Co. (1968) 261 Iowa 1225, 158 NW2d 139, 31 ALR3d 1336; Ruppel v. Ralston Purina Co. (1968, Mo) 423 SW2d 752. In 2006, Judge Cale J. Bradford dismissed the Plaintiff, Kay Kims lawsuit pursuant to 12(B)(6) even though the Defendants-owners of upper unit 6, Chelsey Rasmussen & Tom Gustas had admitted faults. App. pp. 113. Appellee/Defendants CHUBB Insurance adjuster Kimberlyn J. Twiehaus lied when she stated that there was no property damage to the Appellants/Plaintiffs unit to support the owners of upper level condo unit 6-Shannon Lampsa & Kyle Love. Defendant/Appellee, VECHOA always insisted over 10 years that they are not responsible for any of Appellants/Plaintiffs property damage claims. The Appellants/Plaintiffs cannot file any claim against the umbrella CHUBB Insurance or any VECHOAs insurance without the permission from the VECHOA. Indiana Trial Court denied the Appellants/Plaintiffs lawsuit. Appellants/Plaintiffs damages are from normal wear and tear but proximate and ultimate causes. Appellants/Plaintiffs sustained actual loss of about $25,000.00 plus direct & indirect costs of lawsuit of over $5,000.00 over the years. This amount does not include punitive damages. Besides actual damage compensation, the Appellants/Plaintiffs is entitled to be paid for punitive damages. Punitive damages are awarded against the defendants to punish them for

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malicious conduct and to deter other people and corporations from committing the same injustices. VECHOAs yearly tax free revenue is about $400,000.00 from over 200 units. Appellants/Plaintiffs has been discriminated by the VECHOA and CHUBB Insurance. The Court does not give any leniency for the procedure of the court or the law just because the Appellants/Plaintiffs is Pro Se. The Appellants/Plaintiffs has to work 2 or 3 times harder than all the lawyers combined. Besides actual and punitive damage for the claims, the Appellants/Plaintiffs, Pro Se should be paid the equivalent of lawyer fees and all expenses associated with the lawsuit. IV. CONCLUSION AND PRECISE RELIEF SOUGHT Trial Court erred when granting Order for Summary Judgment in false pretense for the Defendant-VECHOA. In the Order, the Trial Court stated that the all parties were notified, appeared by counsel, heard oral arguments and submitted evidence. There was no appearance by counsel, no oral arguments, no evidence submitted before the Order of Summary Judgment was issued on May 12, 2011. The only hearing for the Case was held on May 16, 2011. Trial Court erred when granting Order to Dismiss CHUBB Insurance Company. The CHUBB Insurance adjuster-Kimberlyn J. Twiehaus lied that Appellants/Plaintiffs property has no damage but normal wear and tear. The absence of her affidavit &/or any document(s) in writing is de facto their admission of guilt. The Appellants/Plaintiffs property damages are still present to this date. If photos are not good enough evidence, the Appellants/Plaintiffs would allow anyone to cut open the ceiling and wall so that hidden damages areas above the ceilings and behind the walls can be exposed. The Appellants/Plaintiffs has never been compensated (not even a penny) for the $25,000.00

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actual damages in this Appealed Trial Court case. The Appellants/Plaintiffs has already spent thousands of dollars to seek recourse for the damages. The Appellants/Plaintiffs agrees with the Appellees/Defendants that if the damages were caused by normal wear and tear, the Appellants/Plaintiffs shall be responsible for fixing and maintaining the damages. The Appellants/Plaintiffs property damages are caused by the proximate and ultimate causes and undisputable evidence for which the Appellees/Defendants are responsible. Appellants/Plaintiffs have suffered unjustly from the property damages without this Appeals Courts intervention. Appellants/Plaintiffs Kay Kim, Pro Se and Charles, Chuang, Pro Se respectfully requests this Court to reverse the Trial Courts order granting summary judgment and dismissing the Appellees/Defendants-VECHOA (Village at Eagle Creek Homeowners Association). Appellants/Plaintiffs Kay Kim, Pro Se and Charles, Chuang, Pro Se respectfully requests this Court to reverse the Trial Courts Order to dismiss CHUBB Insurance Company. Appellants/Plaintiffs Kay Kim, Pro Se and Charles, Chuang, Pro Se respectfully requests this Court to remand for further proceedings accordingly with costs of this action and for all other just and proper relief in the premises. Respectfully submitted, Date: August 31, 2011 Kay Kim, Pro se-Plaintiff/Appellant 4250 Village Pkwy Cir E. Unit 2 Indianapolis, IN 46254 Tel# 317-641-5977 em: chang2597@gmail.com Date: August 31, 2011 Charles Chuang, Pro se-Plaintiff/Appellant 4250 Village Pkwy Cir E. Unit 2 33

Indianapolis, IN 46254 Tel# 317-641-5977 em: chang2597@gmail.com

WORD COUNT CERTIFICATE Pursuant to Appellate Rule 44, I verify that this Appellants/Plaintiffs brief contains no more than 14,000 words, excluding the items listed in Appellate Rule 44(C) and I verify that this brief contains approximately 9,400 words. Date: August 31, 2011 Kay Kim, Pro se-Plaintiff/Appellant 4250 Village Pkwy Cir E. Unit 2 Indianapolis, IN 46254 Tel# 317-641-5977 em: chang2597@gmail.com

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CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the foregoing has been served by person on August 31, 2011. Kay Kim, Pro se-Plaintiff/Appellant LEWIS WAGNER, LLP 501 Indiana Avenue, Suite 200 Indianapolis, IN 46202 Tel# (317) 237-0500 / Fax# (317) 630-2790 / em: lwooton@lewiswagner.com KIGHTLINGER & GRAY, LLP Market Square Center, Suite 600 151 Delaware Street Indianapolis, IN 46204 Tel# (317) 638-4521 / Fax# (317) 636-5917 / em: mgerth@k-glaw.com
DUFFIN & HASH, LLP 251 E. Ohio Street, Suite 900 Indianapolis, IN 46204 Tel# (317) 580-9348 / Fax#

(317) 224-2345 / em: lcoates@duffinandhash.com

ROCAP WITCHGER, LLP. 6666 E. 75th St., Suite 410 Indianapolis, IN 46250 Tel# (317) 577-5380 / Fax# (317) 577-5385 / em: rar@rocap-witchger.com / slt@rocap-witchger.com

Kay Kim, Pro Se-Plaintiff/Appellant

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4250 Village Pkwy Cir E. Unit 2 Indianapolis, IN 46254 Tel# 317-641-5977/em: chang2597@gmail.com

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