Barry B. Eskanos and Ami B. Eskanos v. Washinton Mutual Bank, FA and JPMorgan Chase Bank, N.A. (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
Dec 17 2015, 7:51 am
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.
APPELLANTS PRO SE ATTORNEYS FOR INTERVENOR
Barry B. Eskanos JPMORGAN CHASE BANK, N.A.
Ami B. Eskanos David J. Jurkiewicz
Miami Beach, Florida Nathan T. Danielson
Bose McKinney & Evans LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Barry B.Eskanos and Ami B. December 17, 2015
Eskanos, Court of Appeals Case No.
Appellants-Plaintiffs, 41A01-1410-MI-427
Appeal from the
v. Johnson Superior Court
The Honorable
Washington Mutual Bank, FA, Kevin M. Barton, Judge
Appellee-Defendant, Trial Court Cause No.
41D01-1405-MI-90
and
JPMorgan Chase Bank, N.A.,
Intervenor.
Kirsch, Judge.
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[1] Barry B. Eskanos and Ami B. Eskanos (collectively, “the Eskanoses”) appeal
the trial court’s order that found them in contempt. They raise several issues
that we consolidate and restate as: whether the trial court abused its discretion
when it held the Eskanoses in contempt for attempting to enforce a vacated
Florida judgment and for failing to appear for a show cause hearing.
[2] We affirm.
Facts and Procedural History
[3] On November 12, 2013, a Miami-Dade County, Florida Circuit court (“the
Florida court”) issued a default judgment (“the Judgment”) in favor of the
Eskanoses and against Washington Mutual Bank, FA (“the Bank”) in the
amount of approximately $264,000,000. On February 23, 2014, the Florida
court issued an order that vacated the Judgment, declared the Judgment void ab
initio, and dismissed the Eskanoses’ case against the Bank with prejudice. The
Eskanoses filed a motion for rehearing and reconsideration in March 2014; the
Florida court did not rule on their motion.
[4] In April 2014, the Eskanoses filed in the Johnson County, Indiana Superior
court (“the Indiana trial court”) a pro-se Ex-Parte Application for Issuance of
Writ of Execution of the Judgment(“the Application”). The Application sought
to enforce the Judgment against property formerly owned by the Bank that was
then being held by the Office of the Indiana Attorney General, Unclaimed
Property Division. The Eskanoses represented in the Application that, with
costs and interest, the Bank “has an unpaid balance of $1,056,000,439.75” that
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was “due and owing” to the Eskanoses. Chase App. at 5. Initially, the Indiana
trial court issued an order on May 22, 2014 granting the Application and
issuing a Writ of Execution to the Indiana Attorney General.
[5] JPMorgan Chase Bank, N.A. (“Chase”), an intervening or interested party in
the Florida action, filed a Notice with the Indiana trial court, advising that the
Florida court had vacated the Judgment on February 23, 2014.1 On May 31,
the Indiana trial court entered an order vacating its May 22 order that had
issued the Writ of Execution. Finding that the Eskanoses “knew, or should
have known, that the Default Judgment that they sought to enforce had been
vacated,” the Indiana trial court ordered the Eskanoses to appear to show cause
why they should not be found in contempt. Id. at 23-24.
[6] Thereafter, the Eskanoses filed a “Response to the Order to Show Cause” and a
“Motion to Strike” the filing of the Florida court’s February 23 order that
vacated the Judgment.2 Id. at 25. The Eskanoses also filed a motion to
continue the show cause hearing. The Indiana trial court denied the Eskanoses’
Motion to Strike, but it granted their request for a continuance, setting the
1
The Florida court vacated the Judgment upon Chase’s motion to vacate the Judgment or stay execution of
it. Chase provided a certified copy of the Florida court’s order that vacated the Judgment, declared the
Judgment void ab initio, and dismissed the Eskanoses’ case against the Bank. Later, Chase also submitted to
the Indiana trial court a copy of the transcript from the hearing on their motion to vacate, at the conclusion of
which the Florida court declared the Judgment to be void.
2
The Eskanoses asserted, among other things, that the Florida court’s February 23 order, which vacated the
Judgment, was void because (1) it was issued on a Sunday, (2) there was “a federal 180-day stay” in place in
that action, which precluded the Florida court from acting, and (3) they had filed a motion for
reconsideration in the Florida court. Chase App. at 25-34.
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hearing for September 4, 2014. The Eskanoses failed to appear for the
September 4 show cause hearing. Thereafter, the Indiana trial court entered its
Order of Contempt, holding the Eskanoses in contempt for their failure to
appear and for seeking to enforce the Judgment. The Eskanoses now appeal.
Discussion and Decision
[7] Initially, we observe that the Eskanoses filed their appeal pro se. “An appellant
who proceeds pro se “is held to the same established rules of procedure that a
trained legal counsel is bound to follow and, therefore, must be prepared to
accept the consequences of his or her action.” Thacker v. Wentzel, 797 N.E.2d
342, 345 (Ind. Ct. App. 2003). In this case, the Eskanoses’ appellate brief
included multiple and pervasive failures to comply with our appellate rules,
which presented obstacles to our review of the issues. Their Statement of the
Case is defective in a number of respects. It is not limited to a brief description
of the nature of the case and relevant proceedings, as is required by Indiana
Appellate Rule 46(A)(5); rather, it is a lengthy discussion primarily devoted to
proceedings in the Florida court (and, it seems, other ancillary actions in other
Florida or federal courts). Moreover, the Statement of the Case contains
argument, which is inappropriate, and it almost completely fails to provide
citation to the record. The Eskanoses’ Statement of Facts likewise fails to
comply with our appellate rules. Indiana Appellate Rule 46(A)(6)(a) requires
that an appellant’s statement of the facts be supported by page references to the
appendix; the Eskanoses’ Statement of Facts makes no citation to the record
whatsoever, and it contains argument, which is not appropriate in that section.
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We also note that the Eskanoses’ brief does not include the applicable standard
of review of a contempt order. See Ind. Appellate Rule 46(A)(8)(b) (“The
argument must include for each issue a concise statement of the applicable
standard of review; this statement may appear in the discussion of each issue or
under a separate heading placed before the discussion of the issues.”). The
Eskanoses also fail to present any argument as to why their absence at the show
cause hearing should be excused. This court has discretion to dismiss an appeal
for the appellant’s failure to comply with the Rules of Appellate Procedure.
Miller v. Hague Ins. Agency, Inc., 871 N.E.2d 406, 407 (Ind. Ct. App. 2007).
However, we prefer to dispose of cases on their merits, and we do so here.
[8] “[A]mong the inherent powers of a court is that of maintaining its dignity,
securing obedience to its process and rules, rebuking interference with the
conduct of business, and punishing unseemly behavior.” City of Gary v. Major,
822 N.E.2d 165, 169 (Ind. 2005) (citing State v. Shumaker, 200 Ind. 623, 157
N.E. 769, 775 (1927)). Indirect contempt is the willful disobedience of any
lawfully entered court order of which the offender has notice, and it “arises
from conduct not occurring in the presence of the court, such as a failure of a
party to obey a court order or process.” Riggin v. Rea Riggin & Sons, Inc., 738
N.E.2d 292, 310 (Ind. Ct. App. 2000). In general, contempt of court involves
disobedience that undermines the court’s authority, justice, and dignity. Major,
822 N.E.2d at 169. Our legislature has recognized our court’s inherent power
to cite and punish for contempt in Indiana Code section 34-47-3-1, which
provides in relevant part: “A person who is guilty of any willful disobedience of
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any process, or any order lawfully issued . . . by any court of record . . . is guilty
of an indirect contempt of the court that issued the process or order.”
[9] In order to be held in contempt for failure to follow the court’s order, a party
must have willfully disobeyed the court order. Ind. High Sch. Athletic Ass’n v.
Martin, 765 N.E.2d 1238, 1241 (Ind. 2002). The order must have been so clear
and certain that there could be no question as to what the party must do, or not
do, and so there could be no question regarding whether the order is violated.
Major, 822 N.E.2d at 170. The determination of whether a party is in contempt
of court is a matter left to the discretion of the trial court. Id. at 171. When
reviewing a contempt order, this court neither reweighs the evidence nor judges
the credibility of the witnesses. Mitchell v. Mitchell, 785 N.E.2d 1194, 1198 (Ind.
Ct. App. 2003). We will reverse a trial court’s finding of contempt only if there
is no evidence or inference therefrom to support the finding. Major, 822 N.E.2d
at 171.
[10] Here, the Eskanoses failed to appear at the show cause hearing, and there is no
indication or argument that they did not receive notice of it. They have offered
no explanation or justification as to why their absence at the show cause
hearing should be excused.3 Accordingly, the Eskanoses have failed to show
3
The chronological case summary, Appellants’ App. at 6, reflects that the Eskanoses filed a motion to continue
on September 9, which was five days after the show cause hearing occurred. The trial court denied the
motion, noting it was untimely. Id.
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that the trial court abused its discretion when it found them in contempt for
their failure to appear.
[11] Although the trial court acted within its discretion to enter the order of
contempt based solely upon their failure to appear at the show cause hearing,
the trial court also held the Eskanoses in contempt for their lack of candor with
the trial court. It found,
By their verified Ex-Parte Application For Issuance of Writ of
Execution and Affidavit of Service . . . the [Eskanoses] falsely
represented to the Court that they possessed a valid judgment
when in fact [they] knew or should have known that the
[J]udgment that they sought to enforce was void.
Appellants’ App. at 11. Based upon such “misrepresentations,” the trial court
found each of them in contempt of court. Id.
[12] On appeal, the Eskanoses contend that they “are being held in contempt for
failing to disclose a void, non-final, un-rendered order issued on a Sunday by a
Judge who no longer had jurisdiction to make any further rulings in the
matter.” Appellants’ Br. at 19. The Eskanoses arguments about whether the
order was void, non-final, or issued without jurisdiction, while lengthy, are not
well-organized, focused on the current proceedings in Indiana and the resulting
issues, or supported by citation to relevant case law.4 Therefore, their claims
4
The Eskanoses brief and two appendices include significant discussion, pleadings, and documentation
related to proceedings including mortgage foreclosure, claims of fraudulent transfer asserted against the
Bank, rescission of assignments, removal to federal court, discovery, bankruptcy, and other matters not
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are waived for failure to present cogent argument. App. R. 46(a)(8)(a); Perry v.
Anonymous Physician 1, 25 N.E.3d 103, 105 n.1 (Ind. Ct. App. 2014) (citing
Thacker, 797 N.E.2d at 345), trans. denied, cert. denied, 136 S. Ct. 227 (2015)).
[13] To the extent that the Eskanoses claim the Florida court’s February 23 decision
to vacate the Judgment was void because it was entered on a Sunday, and
thereby was in violation of Florida Statute section 48.20, that statute is entitled
“Service of process on Sunday.”5 The Eskanoses have provided no authority
for the proposition that the Florida court’s order was automatically void
because it was entered on a Sunday. Furthermore, they have not shown, or
even argued, that they were in some way prejudiced by the order’s issuance or
email service of it to counsel on Sunday. We thus reject the claim that the
Florida court’s February 23 order was void. See Loehrke v. State, 722 N.E.2d
867, 870 (Fl. App. Ct. 1998) (rejecting defendant’s claim that service and
execution of search warrant was void because it was executed on Sunday where
defendant neither argued nor established prejudice).
related to this appeal. This required us to sift through a blizzard of unnecessary and often unrelated
materials, which impeded our appellate review.
5
Florida Statute section 48.20 reads: Service or execution on Sunday of any writ, process, warrant, order, or
judgment is void and the person serving or executing, or causing it to be served or executed, is liable to the
party aggrieved for damages for so doing as if he or she had done it without any process, writ, warrant, order,
or judgment. If affidavit is made by the person requesting service or execution that he or she has good reason
to believe that any person liable to have any such writ, process, warrant, order, or judgment served on him or
her intends to escape from this state under protection of Sunday, any officer furnished with an order
authorizing service or execution by the trial court judge may serve or execute such writ, process, warrant,
order, or judgment on Sunday, and it is as valid as if it had been done on any other day.
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[14] The Eskanoses also argue that the Florida court did not have subject matter
jurisdiction to enter the February 23 order, which vacated the Judgment that
they sought to enforce by writ in Indiana. While their argument is not entirely
clear, it appears that their position is that the Florida court lost subject matter
jurisdiction because Chase “asserted FIRREA6 on behalf of the FDIC” and the
Eskanoses filed a notice of 180-day stay. Appellants’ Br. at 21, 25. In support of
their position, the Eskanoses cite to 12 U.S.C. § 1821(d)(13)(D).7 Section 13
outlines “[a]dditional rights and duties” of the FDIC as a conservator or
receiver, here presumably of the Bank’s assets that the Eskanoses were
attempting to obtain through litigation in Florida. Subsection (D) concerns
“limitation of judicial review” and by its language appears to limit a court’s
jurisdiction over actions “for payment from, or action seeking a determination
of rights with respect to” the assets of any depository institution for which the
FDIC was appointed receiver. Assuming without deciding that the statute
might preclude the Florida court from determining any issues regarding the
6
FIRREA stands for the Financial Institutions Reform, Recovery & Enforcement Act of 1989.
7
Title 12 of the United States Code section 1821(d)(13)(D) reads:
Limitation on judicial review
Except as otherwise provided in this subsection, no court shall have jurisdiction over--
(i) any claim or action for payment from, or any action seeking a determination of rights with respect to, the
assets of any depository institution for which the Corporation has been appointed receiver, including assets
which the Corporation may acquire from itself as such receiver; or
(ii) any claim relating to any act or omission of such institution or the Corporation as receiver.
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Eskanoses’ specific rights with respect to the Bank’s assets, the Eskanoses have
not provided us with any authority that the Florida court could not vacate and
find void its own previously-issued default judgment. “[W]e will not become
an advocate for a party, nor will we address arguments which are either
inappropriate, too poorly developed or improperly expressed to be understood.”
Thacker, 797 N.E.2d at 345 (citations and internal quotations omitted).
[15] The Eskanoses also appear to argue that the Florida court’s order (vacating the
Judgment) was “not final” because the Eskanoses filed in March 2014 a motion
for reconsideration or rehearing8 under Florida Rule of Civil Procedure
1.530(a), and because a motion to reconsider was pending, the Indiana trial
court could not issue the contempt order. Appellants’ Br. at 19, 27-28. They
assert that “[the Florida court’s] jurisdiction continues until the motion is
disposed of[.]” Id. at 28. Again, we are unpersuaded. First, we note, this
position of continuing jurisdiction is entirely contrary to their position,
discussed above, that the Florida court did not have jurisdiction. Second, even
assuming that they are correct that the Florida court’s jurisdiction “continues”
as alleged, they have not cited to any authority for the proposition that the
Indiana trial court could not issue an order finding them in contempt. To the
extent that they claim their filing of the motion to reconsider “supend[ed]
rendition of a final order,” Appellants’ Br. at 27, we reject that as well. Under
8
We note that the Eskanoses’ Motion for Rehearing or Reconsideration is sixty-six pages in length.
Appellants’ App. at 74-140.
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Florida Rule of Appellate Procedure 9.020(g), an order is “rendered” when a
signed, written order is filed with the clerk of the lower tribunal. Sumner v. Bd.
of Trs., City of Pensacola Firefighters’ Relief & Pension Fund, 78 So.3d 124, 124 (Fl.
Ct. App. 2012). Here, the record reflects that the Florida court submitted
signed copies of the February 23 order vacating Judgment “to the Clerk of
Courts for filing in the Court file.” Appellants’ App. at 237.
[16] The trial court did not abuse its discretion when it found the Eskanoses to be in
contempt for their failure to appear at the show cause hearing or for their lack
of candor with regard to a prior Florida court order vacating and holding void
the Judgment that they sought to enforce in Indiana.
[17] Affirmed.
Najam, J., and Barnes, J., concur.
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