Amir Basic and Gerard Arthus v. Numan A. Amouri, Mohamad H. Mohajeri, Mohammad Aslam Chaudhry, Adnan Khan, Imdad Zackariya, Mohammad Sirajuddin, Sarah Shaikh, Aijaz Shaikh, Ismail Al-Ani , 58 N.E.3d 980 ( 2016 )

FILED
Aug 19 2016, 9:01 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANTS PRO SE ATTORNEY FOR APPELLEES
Amir Basic Robert J. Palmer
South Bend, Indiana May • Oberfell • Lorber
Mishawaka, Indiana
Gerard Arthus
Mishawaka, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Amir Basic and Gerard Arthus, August 19, 2016
Appellants-Plaintiffs, Court of Appeals Case No.
71A03-1510-PL-1820
v. Appeal from the St. Joseph
Superior Court
Numan A. Amouri, Mohamad H. The Honorable Steven L.
Mohajeri, Mohammad Aslam Hostetler, Judge
Chaudhry, Adnan Khan, Trial Court Cause No.
Imdad Zackariya, Mohammad 71D07-1505-PL-174
Sirajuddin, Sarah Shaikh,
Aijaz Shaikh, Ismail Al-Ani,
Shaukat Chaudhry, Gulrukh
Kareem, and Basman Salous
et al.,
Appellees-Defendants
Crone, Judge.
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Case Summary
[1] Amir Basic and Gerard Arthus (collectively “Appellants”) appeal the dismissal
of their claims against the Imam of the Islamic Society of Michiana, Inc.
(“ISM”), as well as members of the boards of directors and trustees, Numan A.
Amouri, Mohamad H. Mohajeri, Mohammad Aslam Chaudhry, Adnan Khan,
Imdad Zackariya, Mohammad Sirajuddin, Sarah Shaikh, Aijaz Shaikh, Ismail
Al-Ani, Shaukat Chaudhry, Gulrukh Kareem, and Basman Salous (collectively
“Appellees”), stemming from Basic’s removal from the ISM board of directors.
As best we can discern, Appellants challenge the trial court’s findings that it
lacked subject matter jurisdiction and that Appellants lacked standing as well as
its decision to quash certain subpoenas. Appellees request damages, including
appellate attorney’s fees, pursuant to Indiana Appellate Rule 66(E). Finding
that Appellants have violated numerous provisions of Appellate Rule 46,
including the failure to present cogent argument, we conclude that they have
waived all issues for appeal. And finding that Appellants acted in procedural
bad faith, we grant Appellees request for damages. Therefore, we affirm and
remand for a determination of these damages.
Facts and Procedural History
[2] In 2015, Basic was a member of the ISM board of directors (“Board”). On
April 10, 2015, the other Board members and all members of the board of
trustees (“Trustees”) sent Basic a letter informing him that he was being
temporarily suspended from the Board. The letter specified certain actions by
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Basic that had led to his suspension: (1) unauthorized removal of certain
official documents, refusal to return those documents on demand, use of the
documents to coerce the Board to negotiate certain demands, and distribution
of the documents to Arthus, who improperly posted them online; (2) frustration
and impairment of ISM’s goals and mission by disrupting Board meetings,
using threatening and abusive language, intimidating Board members, illegally
restricting access to the Masjid (meeting room) and community hall, thereby
causing anxiety and hardship to ISM community members; (3) unauthorized
modification of the office by removing a window; and (4) deliberate destruction
of the toilet in the Masjid restroom. Appellants’ App. at 52-53. The letter
concluded that Basic’s actions amounted to a “failure to adhere to the Islamic
teachings and values of compassion and respect towards authority and
community members … [and a] failure to adhere to [his] responsibilities and
obligations as a Board Member to maintain harmony among the community.”
Id. at 52.
[3] At a subsequent meeting of the entire ISM membership community, ISM
members voted via secret written ballot 121-2 in favor of permanently removing
Basic from the Board, with Basic and Arthus being the only negative votes.
This was followed by a hand vote, which was unanimous in favor of Basic’s
removal from the Board.
[4] ISM records show that Arthus was never an active, dues-paying member of
ISM. Basic was not included in the treasurer’s list of ISM members and
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acknowledged that even though he had been in the ISM community since 1997,
he was not officially a voting member of the community.
[5] In May 2015, Appellants filed a sixteen-count complaint against Appellees
essentially claiming that Basic was wrongfully suspended from the Board and
that Appellees had violated state and federal statutes governing nonprofit
religious organizations. They sought a temporary restraining order vacating the
suspension, reinstating Basic to the Board, and granting him access to certain
official records of ISM. They also moved for a preliminary injunction, seeking
to enjoin Appellees from interfering with Basic’s duties as a Board member and
from denying him access to certain ISM records. He asked the trial court to
consider the grounds for his removal from the Board.
[6] The trial court denied the motion for temporary restraining order and granted
Appellants leave to amend the complaint. In the amended complaint,
Appellants asked the court to order Appellees to give them access to its
membership lists, remove all members from the Board and Trustees, appoint a
temporary trustee to manage ISM, and order formal elections. Appellants
sought $5,200,000 in damages.
[7] In June 2015, the trial court issued an order denying Appellants’ motion for
preliminary injunction, which provided in part,
ISM serves as an organization of Islamic believers in a several
county area in Northern Indiana and Southern Michigan. [ISM
President] Dr. Salous testified that it is a small organization
where the worshippers know each other. The members meet
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together quite frequently for education, prayer and meals. Dr.
Salous testified that some of the members have become afraid of
Mr. Basic. The board of directors has a responsibility to
maintain cooperation and unity. To scrutinize the decision of the
board and trustees, and later the entire congregation, that Mr.
Basic was interfering with the spirit of unity and cooperation
would require far too much intrusion into the “polity” of this
religious organization.
Appellees’ App. at 11. The trial court expressed its reservations as to whether it
had subject matter jurisdiction over the case but did not dismiss it, as no motion
had been filed at that time.
[8] Shortly thereafter, Appellees filed a motion to dismiss Arthus from the case
based on lack of standing. A month later, Appellees filed a motion to dismiss
for lack of subject matter jurisdiction. The trial court dismissed the action for
lack of subject matter jurisdiction and alternatively determined that neither
Arthus nor Basic had standing to pursue their claims.
[9] Appellants filed a motion to correct errors, which the trial court denied.
Appellants now appeal.
Discussion and Decision
Section 1 – Appellants have waived all issues for consideration
by failing to comply with the Indiana Rules of Appellate
Procedure.
[10] Appellants challenge the trial court’s dismissal for lack of subject matter
jurisdiction and lack of standing as well as its decision to quash certain
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subpoenas. 1 At the outset, we note that Appellants have chosen to proceed pro
se. It is well settled that pro se litigants are held to the same legal standards as
licensed attorneys. Twin Lakes Reg’l Sewer Dist. v. Teumer, 992 N.E.2d 744, 747
(Ind. Ct. App. 2013). This means that pro se litigants are bound to follow the
established rules of procedure and must be prepared to accept the consequences
of their failure to do so. Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App.
2004). These consequences include waiver for failure to present cogent
argument on appeal. Id. While we prefer to decide issues on the merits, where
the appellant’s noncompliance with appellate rules is so substantial as to
impede our consideration of the issues, we may deem the alleged errors waived.
Perry v. Anonymous Physician 1, 25 N.E.3d 103, 105 n.1 (Ind. Ct. App. 2014),
trans. denied (2015), cert. denied (2015). We will not become an “advocate for a
party, or address arguments that are inappropriate or too poorly developed or
expressed to be understood.” Id.[11] First, we note that it is difficult to discern Appellants’ precise allegations
because of the many deficiencies in their appendix and briefs. Their appendix
includes a forty-three-count, non-file-stamped complaint with no certificate of
service. Appellees have noted this deficiency and have included in their
1
We note that Appellants have conflated the terms “standing” and “jurisdiction,” repeatedly referencing the
court’s “standing.” It is jurisdiction, not standing, that pertains to “a court’s power to decide a case or issue a
decree.” BLACK’S LAW DICTIONARY (10th ed. 2014) (emphasis added). In contrast, “standing” is defined
as “[a] party’s right to make a legal claim or seek judicial enforcement of a duty or right.” Id. (emphasis
added).
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appendix a file-stamped copy of a substantially different complaint, containing
sixteen counts. Appellees’ App. at 22. The trial court’s reference in its order on
preliminary injunction to a sixteen-count complaint supports the authenticity of
the latter. Id. at 5. Thus, although Appellants’ appendix includes a signed
verification regarding the accuracy of all documents contained therein, the
inclusion of the forty-three-count complaint appears to be a misrepresentation
of the court’s record.
[12] We also note that Appellants’ brief is deficient in many respects. First, the
statement of facts section includes argument and conclusions, in violation of
Appellate Rule 46(A)(6), which limits the statement of facts to a narrative
description of the relevant facts stated in accordance with the appropriate
standard of review. See New v. Pers. Representative of Estate of New, 938 N.E.2d
758, 765 (Ind. Ct. App. 2010) (statement of facts section of appellant’s brief
shall neither omit relevant facts nor contain subjective argument), trans. denied
(2011). Similarly, Appellants’ statement of the case does not lay out the
relevant procedural posture of the case as required by Appellate Rule 46(A)(5),
but instead includes allegations and argument. Not only do both of these
sections of Appellants’ brief include improper content, but we also find them to
be largely incoherent.
[13] Appellants’ brief is also deficient with respect to the form of the appealed order.
Appellate Rule 46(A)(12) requires an appellant to submit as an attachment to
the appellant’s brief a copy of the appealed order or judgment. Here,
Appellants have submitted a copy of the appealed order, but it is no longer the
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order as issued by the court. Rather, they have submitted a copy of the order
that includes their own handwritten negative commentary throughout.
Appellants’ Br. at 58. In fact, the order is so heavily marked up with
Appellants’ scrawlings as to impede our review.
[14] Most importantly, Appellants’ arguments are not cogent. Appellate Rule
46(A)(8) lists the requirements for the argument section of an appellant’s brief,
stating in pertinent part,
(8) Argument. This section shall contain the appellant’s
contentions why the trial court or Administrative Agency
committed reversible error.
(a) The argument must contain the contentions of the appellant
on the issues presented, supported by cogent reasoning. Each
contention must be supported by citations to the authorities,
statutes, and the Appendix or parts of the Record on Appeal
relied on, in accordance with Rule 22.
(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. In addition,
the argument must include a brief statement of the procedural
and substantive facts necessary for consideration of the issues
presented on appeal, including a statement of how the issues
relevant to the appeal were raised and resolved by any
Administrative Agency or trial court.
[15] First, Appellants have failed to include the appropriate standard of review as
required by Appellate Rule 46(A)(8)(b). Additionally, as the party with the
burden of establishing error on appeal, Appellants must cite pertinent authority
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and develop reasoned arguments supporting their own allegations. As for the
smattering of cases cited within their argument section, Appellants fail to use
them to develop coherent arguments in support of their own positions. Rather,
they simply attempt to refute and distinguish cases relied on by the trial court in
its order or advanced for consideration by Appellees, often in a pejorative and
condescending manner.
[16] In this vein, we note that Appellants’ brief is unnecessarily hostile in tone
throughout and impugns the motives of opposing counsel, Appellees, and the
trial court. “Petulant grousing” and “hyperbolic barbs” do not suffice as cogent
argument as required by our appellate rules. County Line Towing, Inc. v.
Cincinnati Ins. Co., 714 N.E.2d 285, 291 (Ind. Ct. App. 1999), trans. denied
(2000). Moreover, “[a] brief cannot ‘be used as a vehicle for the conveyance of
hatred, contempt, insult, disrespect, or profession[al] discourtesy of any nature
for the court of review, trial judge, or opposing counsel.’” Cochran v. Cochran,
717 N.E.2d 892, 895 n.3 (Ind. Ct. App. 1999) (quoting Pittsburgh, Cincinnati,
Chicago & St. Louis Ry. Co. v. Muncie & Portland Traction Co., 166 Ind. 466, 468,
77 N.E. 941, 942 (1906)), trans. denied (2000).
[17] The following are mere snapshots of the invective included in Appellants’ brief:
(1) Appellants accuse Appellees’ counsel of “obfuscatory mouthing’s [sic],”
“Sophistic wrangling’s [sic],” and being “well-versed in the art of obfuscation”;
(2) Appellants accuse Appellees of being “intellectually” and “morally corrupt,”
engaging in “nefarious schemes,” and running the organization “as if it were a
‘third world’ dictatorship”; and (3) Appellants accuse the trial court of
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conducting a “courtroom farce” and “sham proceedings,” characterize the trial
court’s findings as “snidely” stated and creating “straw-man or bogey-man
argument,” and impugn the court’s legal knowledge by stating, “it is almost
comical in that apparently the Court … has misunderstood the purpose of
Subpoenas.” Appellants’ Br. at 20-21, 24, 27-28, 30. We admonish Appellants
that “[i]nvectives are not argument, and have no place in legal discussion.”
Brill v. Regent Commc’ns, Inc., 12 N.E.3d 299, 301 n.3 (Ind. Ct. App. 2014)
(citation omitted), trans. denied.
[18] Simply put, in addition to submitting a defective appendix and a brief that is
replete with defects, Appellants have failed to develop cogent argument to
support any of their assertions of error. As such, they have waived review of
these issues. See Perry, 25 N.E.3d at 105 n.1 (“As we may not become
[Appellants’] advocate, we must conclude that [they] ha[ve] waived [their]
argument[s] on appeal.”). Therefore, we affirm the trial court’s order.
Section 2 – Appellees are entitled to damages, including
appellate attorney’s fees, based on Appellants’ procedural bad
faith.
[19] Appellees request that we order Appellants to pay damages, including appellate
attorney’s fees, pursuant to Appellate Rule 66(E), which reads in pertinent part,
“The Court may assess damages if an appeal … is frivolous or in bad faith.
Damages shall be in the Court’s discretion and may include attorneys’ fees.
The Court shall remand the case for execution.” Our discretion to impose
damages is “limited, however, to instances when an appeal is permeated with
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meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of
delay.” Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003). “[T]he
sanction is not imposed to punish mere lack of merit but something more
egregious.” Troyer v. Troyer, 987 N.E.2d 1130, 1148 (Ind. Ct. App. 2013)
(citation omitted), trans. denied. As such, we exercise caution in awarding
appellate attorney’s fees because of the “potentially chilling effect the award
may have upon the exercise of the right to appeal.” Holland v. Steele, 961
N.E.2d 516, 529 (Ind. Ct. App. 2012), trans. denied.
[20] Indiana appellate courts have formally categorized claims for
appellate attorney fees into “substantive” and “procedural” bad
faith claims. To prevail on a substantive bad faith claim, the
party must show that the appellant’s contentions and arguments
are utterly devoid of all plausibility. Procedural bad faith, on the
other hand, occurs when a party flagrantly disregards the form
and content requirements of the rules of appellate procedure,
omits and misstates relevant facts appearing in the record, and
files briefs written in a manner calculated to require the
maximum expenditure of time both by the opposing party and
the reviewing court. Even if the appellant’s conduct falls short of
that which is “deliberate or by design,” procedural bad faith can
still be found.
Thacker, 797 N.E.2d at 346-47 (internal citations omitted).
[21] The fact that Appellants chose to prosecute their appeal pro se does not relieve
them of their duty to comply with all the rules of appellate procedure. See
Srivastava v. Indianapolis Hebrew Congregation, Inc., 779 N.E.2d 52, 61 (Ind. Ct.
App. 2002) (“Pro se litigants are liable for attorney’s fees when they disregard
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the rules of procedure in bad faith.”), trans. denied (2003). When determining
whether to impose appellate attorney’s fees as a sanction for failure to follow
those rules, “we can cut [Appellants] no slack simply because they have no
formal legal training.” Watson v. Thibodeau, 559 N.E.2d 1205, 1211 (Ind. Ct.
App. 1990).
[22] In sum, Appellants were required to follow the rules of appellate procedure and
failed to comply. Their appendix is defective, and their brief is practically
devoid of discernible legal argument. Instead, the brief is laced with unseemly
invective that permeates its entire fifty-eight pages. Their argumentative facts
section and blistering handwritten remarks on the face of the appealed order
reveal a flagrant disregard for the rules of appellate procedure. In other words,
Appellants have demonstrated procedural bad faith. Based on the foregoing,
we conclude that an award of damages, including appellate attorney’s fees, is
appropriate in this case and grant Appellees’ request for such damages. See
Srivastava, 779 N.E.2d at 61 (awarding attorney’s fees based on pro se litigant’s
bad faith). Accordingly, we affirm and remand for a determination of
Appellees’ damages pursuant to Appellate Rule 66(E).
[23] Affirmed and remanded.
Kirsch, J., and May, J., concur.
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