MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                FILED
regarded as precedent or cited before any                                  Nov 27 2017, 9:15 am

court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEY FOR APPELLEE
Tiera Butler                                            Chad W. Nally
Valparaiso, Indiana                                     Burke Costanza & Carberry LLP
                                                        Merrillville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tiera Butler,                                           November 27, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        45A03-1704-SC-1010
        v.                                              Appeal from the Lake Superior
                                                        Court
Friendly Foot Care, P.C.,                               The Honorable Sheila M. Moss,
Appellee-Plaintiff.                                     Judge
                                                        The Honorable Kathleen Belzeski,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        45D08-1610-SC-4996



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1704-SC-1010 | November 27, 2017            Page 1 of 6
                                            Case Summary
[1]   Pro-se Appellant Tiera Butler, a/k/a Aaliayah Ammiyhuwd,1 (“Butler”)

      appeals the denial of her motion to set aside a small claims default judgment

      obtained by Appellee Friendly Foot Care, P.C., a medical services provider,

      (“Friendly Foot”). Butler presents the sole issue of whether the trial court

      abused its discretion. We affirm.



                             Facts and Procedural History
[2]   On October 24, 2016, Friendly Foot filed a Notice of Claim, demanding a

      judgment against Butler for medical charges, attorney’s fees, and late fees

      totaling $440.06. On December 6, 2016, the parties appeared before a

      magistrate. Butler identified herself as “the respondent for Tiera Butler,” to be

      known as Aaliayah Ammiyhuwd. (Tr. at 3.) A hearing was set for January 26,

      2017.


[3]   Butler filed a Demand to Strike, an Emergency Motion, a Declaration of Facts,

      a Copy of Civil Lawsuit, and an Affidavit of Sovereignty. However, she failed

      to appear at the January 26, 2017 hearing. The trial court noted in its

      chronological case summary (“the CCS”) that Friendly Foot would be filing a

      motion for a default judgment.




      1
        Butler asserts that she changed her name, by operation of common law, after learning that she is a Hebrew
      Israelite, of the Tribe of Judah.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1704-SC-1010 | November 27, 2017         Page 2 of 6
[4]   On February 2, 2017, the trial court entered a judgment for Friendly Foot and

      against Butler in the amount of $452.12, plus costs. On March 20, 2017, the

      trial court received a letter from Butler which it treated as a “Motion to Set

      Aside.” (Appellee’s App. at 7.) The motion was set for hearing on April 6,

      2017.


[5]   On March 23, 2017, the parties appeared for proceedings supplemental and the

      trial court inquired into the possibility of a payment plan as opposed to wage

      garnishment.2 Butler stated that she was Aaliayah Ammiyhuwd, respondent for

      Tiera Butler, attempting to “reserve [her] rights under [the] UCC.” (Tr. at 7.)

      She referred to the contract for medical services as one-sided and “an illusion.”

      (Tr. at 11-12.) Butler also claimed that she was “in God’s jurisdiction” and not

      in the trial court’s jurisdiction. (Tr. at 11.) The trial court ordered garnishment

      of Butler’s wages.


[6]   On April 6, 2017, the parties appeared for a hearing on the Motion to Set Aside.

      Butler advised the trial court that she was “a woman of God’s kingdom” who

      was “reserving all [her] rights under [the] UCC.” (Tr. at 20.) After several

      attempts to communicate with Butler as to how the hearing would proceed, the

      trial court denied the Motion to Set Aside. The trial court noted in the CCS

      that Butler “refuses to cooperate with court proceedings.” (Appellee’s App. at

      7.) This appeal ensued.




      2
          Reportedly, Butler works for the United States Postal Service.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1704-SC-1010 | November 27, 2017   Page 3 of 6
                                Discussion and Decision
[7]   Indiana Trial Rule 60(B) provides in relevant part: “On motion and upon such

      terms as are just the court may relieve a party or his legal representative from a

      judgment, including a judgment by default[.]” In general, we review a trial

      court’s denial of a motion to set aside a judgment for an abuse of discretion.

      Falatovics v. Falatovics, 72 N.E.3d 472, 477 (Ind. Ct. App. 2017), trans. denied.

      When a pure question of law is presented, the review is de novo. Id.


[8]   Butler’s letter to the trial court, treated as a Motion to Set Aside, is not

      contained within the Appendix. On appeal, Butler suggests that she moved for

      relief on grounds that the judgment was procured by fraud, T.R. 60(B)(3), or

      because the judgment is void for lack of jurisdiction, T.R. 60(B)(6). She did

      not, however, have the motion to set aside heard on the merits.


[9]   Rule 60(D) requires that, “in passing upon a motion allowed by subdivision

      (B),” the court shall hear “any pertinent evidence.” However, “a party is not

      always entitled to an evidentiary hearing” and “[is] not entitled when

      procedural requirements have not been satisfied.” Falatovics, 72 N.E.3d at 480-

      81. Here, it is not apparent that there was any pertinent evidence to be heard.

      Moreover, Butler refused to cooperate with the trial court in proceedings to

      elicit any pertinent evidence. “The doctrine of invited error is grounded in

      estoppel.” Witte v. Mundy ex rel. Mundy, 820 N.E.2d 128, 133 (Ind. 2005).

      “Under this doctrine, ‘a party may not take advantage of an error that she

      commits, invites, or which is the natural consequence of her own neglect or


      Court of Appeals of Indiana | Memorandum Decision 45A03-1704-SC-1010 | November 27, 2017   Page 4 of 6
       misconduct.’” Id. (quoting Evans v. Evans, 766 N.E.2d 1240, 1245 (Ind. Ct.

       App. 2002)). We find the doctrine to be applicable here. Butler would have

       received an evidentiary hearing on the merits of her Motion to Set Aside had

       she been cooperative with the trial court. She cannot, on appeal, take

       advantage of her lack of cooperation.


[10]   Friendly Foot has requested attorney’s fees pursuant to Indiana Appellate Rule

       66, which permits this Court to assess damages, including attorney’s fees, if an

       appeal is frivolous or in bad faith.


[11]   “Our discretion to award attorney fees under Indiana Appellate Rule 66(E) is

       limited, however, to instances when an appeal is permeated with meritlessness,

       bad faith, frivolity, harassment, vexatiousness, or purpose of delay.” Thacker v.

       Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003). We use extreme restraint in

       exercising this discretion, because of the potential chilling effect upon the

       exercise of the right to appeal. Id. The sanction is imposed not to punish mere

       lack of merit but to address “something more egregious.” Ballaban v.

       Bloomington Jewish Cmty., Inc., 982 N.E.2d 329, 340 (Ind. Ct. App. 2013). Here,

       we decline Friendly Foot’s request for attorney’s fees.



                                               Conclusion
[12]   Butler has not shown that the trial court abused its discretion in denying the

       Motion to Set Aside. We decline to impose attorney’s fees pursuant to

       Appellate Rule 66(E).


       Court of Appeals of Indiana | Memorandum Decision 45A03-1704-SC-1010 | November 27, 2017   Page 5 of 6
[13]   Affirmed.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1704-SC-1010 | November 27, 2017   Page 6 of 6
