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

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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