IV v. Cynthia L. Rose, Appellee-Plaintiff (2024)

MEMORANDUM DECISION

Weissmann, Judge.

[1] David Monsivais raped, battered, and stalked Cynthia Rose and was convicted accordingly. Rose brought a civil suit against Monsivais seeking damages and the removal of Monsivais's name from a jointly owned home. The trial court granted partial summary judgment to Rose and awarded damages, as agreed upon by the parties, of $369,000. Monsivais, pro se, seeks to set aside the partial summary judgment. We affirm.

Facts

[2] In May 2020, the State charged Monsivais with Level 3 felony rape, Level 6 felony stalking, Level 6 felony strangulation, and two counts of Class A misdemeanor domestic battery, all for acts committed against Rose. A jury acquitted Monsivais of strangulation but found him guilty of the remaining offenses, and he was sentenced to an aggregate term of 20 years imprisonment.

[3] On direct appeal, Monsivais challenged the sufficiency of the evidence supporting his rape and stalking convictions, and this Court affirmed. Monsivais v. State, No. 21A-CR-2506 (Ind. Ct. App. Aug. 19, 2022) (mem.). Monsivais then filed a pro se petition for post-conviction relief, alleging ineffective assistance of counsel, which this Court rejected in turn. Monsivais v. State, No. 23A-PC-2410 (Ind. Ct. App. May 6, 2024) (mem.).

[4] While Monsivais's cases wound through the criminal justice system, Rose filed a civil suit against Monsivais seeking damages for duress, assault and battery, and intentional infliction of emotional distress, all connected to the attack for which Monsivais was convicted. Rose's complaint also sought property damages for Monsivais's alleged removal of components from their jointly owned home, and a court order that Monsivais's name be removed from the home's title.

[5] Once Monsivais's criminal convictions were affirmed on direct appeal, Rose moved for summary judgment on her personal injury claims. She argued that Monsivais's convictions collaterally estopped him from disputing civil liability for the same acts. Monsivais responded by, among other things, moving to strike portions of the affidavit Rose submitted in support of her partial summary judgment motion. The trial court denied the motion to strike and entered summary judgment in Rose's favor on the issue of Monsivais's liability for Rose's personal injury claims. At a later hearing to establish damages, Monsivais consented to an award of $369,000, which the trial court ordered. Monsivais now appeals only the liability ruling of the trial court's partial summary judgment.

Discussion and Decision

[6] At the onset, we note that Rose did not file an appellee's brief. Thus, Monsivais need only establish prima facie error to succeed in his appeal. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006) (“When the appellee has failed to submit an answer brief ․ we will reverse the trial court's judgment if the appellant's brief presents a case of prima facie error.”). “Prima facie error in this context is defined as, at first sight, on first appearance, or on the face of it.” Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008) (internal quotation omitted).

[7] But even under this lower standard, Monsivais cannot succeed. He argues only that the trial court should have granted his motion to strike portions of Rose's affidavit and considered the fact that he was found not guilty of strangulation. But these arguments do not rebut the case for summary judgment on Monsivais's liability for Rose's personal injury claims. We review the trial court's decision on a motion to strike for an abuse of discretion and a summary judgment ruling in the same manner as the trial court. Price v. Freeland, 832 N.E.2d 1036, 1039 (Ind.Ct.App.2005) (motion to strike); Rogers v. Martin, 63 N.E.3d 316, 320 (Ind. 2019) (summary judgment).

[8] The trial court properly granted partial summary judgment because Monsivais's criminal convictions established his civil liability for Rose's personal injury claims through offensive collateral estoppel. “Collateral estoppel may bar the subsequent relitigation of a fact or issue that was necessarily adjudicated in a prior lawsuit.” Doe v. Tobias, 715 N.E.2d 829, 831 (Ind. 1999). “Collateral estoppel is termed ‘offensive’ when the ‘plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party.’ ” Id. (quoting Kimberlin v. DeLong, 637 N.E.2d 121, 125 (Ind.1994)). Criminal convictions may form the basis for offensive collateral estoppel because the defendant's opportunity to defend himself at trial and on appeal “clearly meets or exceeds the equivalence of a full and fair opportunity to litigate the facts determinative of his civil liability.” Kimberlin, 637 N.E.2d at 125; see also Ind. Code § 34-39-3-1 (providing that evidence of a felony conviction “shall be admissible in a civil action to prove any fact essential to sustaining the judgment”).

[9] Because Monsivais makes no argument that offensive collateral estoppel is inapplicable here or that his criminal convictions for rape, stalking, and battery do not satisfy the liability elements of Rose's civil claims, we affirm.

Memorandum Decision by Judge Weissmann

Judges Vaidik and Foley concur. Vaidik, J., and Foley, J., concur.