Monica Kay Lasater v. William Scott Lasater (5/27/04 IndCtApp) [Family Law; Civil Procedure]
Barnes, Judge
Monica Lasater challenges the trial court’s order granting to her ex-husband, William, custody of their daughter, C.L., and limiting her visitation with the child. We affirm.The facts in this case should be read in full. An example: "At the commencement of trial, Monica filed a letter attempting to discharge her court appointed attorney, and she proceeded with the trial pro se." According to a footnote: "The trial court did not permit Monica to discharge her counsel entirely and ordered counsel to remain in the courtroom during the trial for advisory purposes." At my count, this was her fifth attorney in this action. Here is some of the Court's discussion of Monica's brief. [I am unclear after reading this opinion as to whether Monica or, if I understand this correctly, her now advisory attorney (from the Notre Dame Legal Aid Clinic) wrote the brief]:Issues. Monica raises four issues for our review, which we restate as: I. whether the trial court abused its discretion when it found her in contempt of court; II. whether she was deprived of due process; III. whether the trial court’s findings are clearly erroneous; and IV. whether the trial court erroneously restricted her visitation.
We also address inflammatory and inappropriate comments contained in Monica’s brief.
We would be remiss if we did not comment on the inflammatory nature of Monica’s Appellant’s Brief. There are several instances where Monica makes inappropriate comments in her brief and at some points makes allegations of unethical conduct by judges and attorneys. We note a few of those instances.Wal-Mart Stores, Inc., et al. v. Berdita L. Bailey & Sue Rhodus (5/27/04 IndCtApp) [Employment Law; Civil Procedure]When referring to the trial court’s rulings relating to the William’s witnesses versus those relating to her own witnesses, Monica claims, “This pattern of harassment of Monica and deference to anything William does continued throughout the trial.” She further alleges that the trial judge “interfered with the presentation of [her] case” repeatedly. Indeed, she baldly claims, “The judge articulated his bias quite clearly on several occasions.” With respect to her due process argument, she states:
It is perhaps true that each of these errors, taken individually, could be seen as harmless. However, they cannot be viewed in isolation. Something was seriously wrong with this case. It is the pattern which must be considered. It cannot be easily explained. It is not rational that a judge would be checking out a case file years after being recused or that a Clerk’s office would refuse to serve the attorney of record in a case, but both happened in this case. Ms. Lasater believes it happened because her husband and his attorney have money, power and influence in Allen County and she does not. We will never know. Perhaps all the strange happenings in this case were coincidental, but perhaps not.* * * It is not Monica’s challenge to the trial court’s decision in and of itself with which we are concerned. “Lawyers are completely free to criticize the decisions of judges. However, as licensed professionals, they are not free to make recklessly false claims about a judge’s integrity.” In re Wilkins, 782 N.E.2d 985, 986 (Ind. 2003), cert. denied, 124 S. Ct. 63. By alleging that the trial court’s decision was based on the judge’s personal feelings about Monica or the other personalities involved in the case, she impugns the judge’s integrity.Our supreme court recently addressed similar concerns in In re Wilkins, 777 N.E.2d 714, 717 (Ind. 2002), modified on rehearing. In that case, the supreme court reviewed language contained in a footnote in a petition for rehearing. The offending language consisted of:
Indeed, the [Court of Appeals] Opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for Appellee Sports, Inc., and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported its decision).In finding that the comments in the footnote were not even “colorably appropriate,” the supreme court reasoned that in the footnote, the respondent suggested that the judges on the court of appeals may have been motivated in their decision making by something other than the proper administration of justice and suggested unethical motivations. Our supreme court further explained:[W]e find that the respondent offered no evidence to support his contentions that, for example, the Court of Appeals was determined to find for appellee, no matter what. Without evidence, such statements should not be made anywhere. With evidence, they should be made to the Judicial Qualifications Commission.Here, such comments do little to advance Monica’s position as to why the trial court committed reversible error and, therefore, do not promote responsible advocacy on her behalf. Significant parts of her brief are permeated with sarcasm and disrespect. * * * For the use of impertinent, intemperate, scandalous, or vituperative language in briefs on appeal impugning or disparaging this court, the trial court, or opposing counsel, we have the plenary power to order a brief stricken from our files and to affirm the trial court without further ado. Wright v. State, 772 N.E.2d 449, 463 (Ind. Ct. App. 2002). In the interest of evaluating the merits of Monica’s issues on appeal, we choose not to strike the Appellant’s Brief filed by Monica’s counsel or any portion thereof. Because we choose not to exercise our discretion to strike the brief, however, counsel should not confuse this with approval or condoning of the unprofessional, disrespectful, and at times outrageous remarks and allegations made in the body of the brief. We appreciate vigorous advocacy, but we will not countenance the sort of lawyering exhibited here. We admonish counsel to advocate more professionally in future matters before this court.Conclusion. The trial court did not abuse its discretion when it found Monica in contempt, and she was not deprived of her due process rights by the trial court. Furthermore, the findings are supported by the evidence. The trial court did not abuse its discretion in ordering restricted visitation between Monica and C.L. given the facts of this case. We affirm the trial court’s order in all respects. Affirmed.
KIRSCH, C.J., and FRIEDLANDER, J., concur.
Wal-Mart Stores, Inc. appeals from the trial court’s order certifying a class of current and former employees in the State of Indiana for claims asserted by Berdita Bailey, a former Wal-Mart employee. The main issues presented by Wal-Mart for our review are; (1) whether the class definition improperly includes class members who have no standing in the litigation, and (2) whether the trial court erred in concluding that common issues predominate and that a class action is superior to other methods of adjudicating the controversy. We conclude that the issue of whether the class definition includes individuals who have no standing in the litigation is dispositive, but because the other issues present concerns which may arise upon remand, we address those in turn. We reverse and remand. * * *Plaintiff sought to have the litigation certified as a class action. Following a hearing, the trial court granted her motion and ordered that the class be defined as “[a]ll current and former hourly employees of Wal-Mart Stores, Inc. (including its operating divisions Sam’s Club and Wal-Mart Supercenters) in the State of Indiana during the period August 1, 1998 to present.” Wal-Mart subsequently sought certification of the order for interlocutory appeal. That motion was granted; consequently, as the court here states: "the issue of class certification is properly before this court. " However, the Court here reverses the order certifying class, and continues:Bailey is a former Wal-Mart employee who now claims that she was subject to a corporate policy at Wal-Mart which caused her to work off the clock and be uncompensated for her time. * * * Bailey claims that because Wal-Mart has instituted the management and payment structure in place, it has forced managers to adopt or condone wrongful cost-saving practices and encourage hourly employees to work off the clock and through rest and meal breaks. She alleges that employees are faced with the dilemma of having more work to do than can be completed in a shift, but Wal-Mart policy is to limit overtime. As a result, she contends that employees must clock out and continue to work without pay. Moreover, she claims that employees are not given rest and meal breaks or are called back to work before their break is over. Evidence demonstrated that some store managers edit employee time records to show that breaks were taken or that individuals clocked out without ever confirming with the employee that the break was taken or whether they left work at a certain time. Finally, Bailey alleged that employees have been locked in stores overnight and the stores were not opened on time the following morning.
Even though we have determined that the class as defined is not properly maintainable, the class may be redefined in order to sustain the lawsuit.After describing the options in some detail, the court here concludes:
Nonetheless, we will not speculate with respect to how the parties will proceed upon remand. The order certifying the class is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.More. Some of you may recall two earlier Indiana Law Blog entries: "Altering of Worker Time Cards Spurs Growing Number of Suits," from 4/4/04; and "Overtime suits being filed in record numbers," from 4/13/04. The latter references an Indiana suit involving Wal-Mart.
ROBB, J., and BARNES, J., concur.
[Even more] The Wall Street Journal yesterday (paid subscription required) had a front page story with this lead: "Some of the nation's biggest and most cost-sensitive retailers, including Wal-Mart Stores Inc., RadioShack Corp. and Dollar General Corp., are battling a raft of lawsuits accusing them of using low-level managers to do the work of regular employees, in order to avoid paying overtime."
Posted by Marcia Oddi at May 27, 2004 02:03 PM