MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                          Oct 23 2015, 9:26 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.


ATTORNEY FOR APPELLANT
S. Rod Acchiardo
Tell City, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Larry R. Flanagan,                                       October 23, 2015
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         62A01-1504-PO-145
        v.                                               Appeal from the Perry Circuit
                                                         Court
Mary J. Beckman,                                         The Honorable M. Lucy Goffinet,
Appellee-Petitioner.                                     Judge
                                                         Trial Court Cause No.
                                                         62C01-1501-PO-27



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 62A01-1504-PO-145 | October 23, 2015   Page 1 of 11
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Larry Flanagan (Flanagan), appeals the trial court’s

      issuance of a protective order against him in favor of Appellee-Petitioner, Mary

      Jo Beckman (Beckman).


[2]   We reverse.


                                                     ISSUE

[3]   Flanagan raises one issue on appeal, which we restate as the following:

      Whether there was sufficient evidence to issue a protective order.


                           FACTS AND PROCEDURAL HISTORY

[4]   Beckman is Flanagan’s sister. There are eight siblings in total and Flanagan is

      the only son. Their Parents had a farm in Perry County, Indiana, and because

      Beckman and her husband lived close to the Parents, they would, from time to

      time, help the Parents with the farm. In 1994, the Parents were struggling

      financially and it was agreed that Beckman would buy a portion of the farm to

      ease their financial strain. Also, it was decided that Beckman would pay for the

      land over a period of time. All siblings were informed and were on board with

      this arrangement. Four years later, in 1998, Beckman finished paying for the

      first parcel of land, and she proposed buying additional land from the Parents.

      This time, however, Beckman’s and Flanagan’s father (Father) needed the

      money upfront, so Beckman refinanced her house to pay for the land.




      Court of Appeals of Indiana | Memorandum Decision 62A01-1504-PO-145 | October 23, 2015   Page 2 of 11
[5]   In February of 2011, ninety-three-year old Father died in his sleep. Weeks after

      the burial, the siblings made a demand for proof of payment of all the land that

      Beckman had purchased from the Parents. The sibling also had a survey

      conducted for the residual land. Beckman’s and Flanagan’s mother (Mother),

      who hated farm life, sought to sell off the farm quickly and move to the city.


[6]   Around the same time, Beckman claims that Flanagan visited her home and

      demanded that she should write a check for $134,000 to purchase the remaining

      farm land and the Parents’ home. Thereafter, on August 9, 2011, averring to

      act as an agent of Mother in accordance with his power of attorney, Flanagan

      sent Beckman a letter captioned, “American Greed.” (Tr. p. 10). In that letter,

      Flanagan claimed that there was a discrepancy in the survey that Beckman had

      conducted when she purchased the first parcel of land in 1994; therefore, the

      property line was incorrect, and it was crucial for that mistake to be rectified.

      In the same letter, Flanagan requested that Beckman sign a deed that he had

      drawn up. Flanagan indicated that if Beckman failed to comply, he would be

      suing her for fraud.


[7]   Beckman did not heed Flanagan’s demands, so on August 24, 2011, Flanagan

      again made contact with Beckman. This time, Flanagan left a telephone voice

      message to Beckman stating, in part, that

              Mary Jo, . . . all we are waiting on now is getting the pond
              settled. So we need to get that done. I have got the letter that
              you give (sic) Carol Jean and [] I am going to take it to John
              Werner [on] Friday and let him look at it. But personally[,] I
              think its pretty much a joke. I don’t think it will hold up in court

      Court of Appeals of Indiana | Memorandum Decision 62A01-1504-PO-145 | October 23, 2015   Page 3 of 11
              because it is not legal. [] But anyway we need to get the pond
              settled . . . you have [] a legal deed to the pond, land, [] but may I
              remind you that when you bought that land, [] you made it a
              point to tell me that it was a short section, that you was buying x
              number of acres, . . . the deal [was] up to the pond []. [] So now
              since you made a mistake on the surveying, [] you think you []
              got it[?] . . . Other than that, [] if you don’t want to cooperate,
              there is ways to make you cooperate[,] so hopefully we don’t
              have to go that route.

              (Tr. p. 15).


[8]   Meanwhile, Beckman acquired a deed for all the land she had purchased from

      the Parents, and reverted the disputed portion—the pond—to Mother.

      According to Beckman, around the same time, Flanagan informed Beckman’s

      neighbors about the dispute. Also, Flanagan visited his other sister’s place of

      work, Carol Jean (Jean), with an aerial view of the farm and informed her

      about the disagreement.


[9]   According to Beckman, for three years, Flanagan had no contact with her.

      However, in January of 2015, Flanagan got wind that Beckman and Jean were

      organizing a Christmas family gathering. Flanagan was not invited to the

      party. As such, on January 5, 2015, Flanagan wrote to Beckman a letter

      stating:

              I hear that you are having a little get together. [] I want to thank
              you for doing this because I really want to hear the real story too.
              [] I really want to find out who took (stole) all of Dad’s papers
              (all his Records, Bank Statements etc.) from his bedroom right
              after he passed. And what this person was (or is) covering up. []


      Court of Appeals of Indiana | Memorandum Decision 62A01-1504-PO-145 | October 23, 2015   Page 4 of 11
               Also[,] I am looking forward to hearing this person tell why they
               stole all of his papers.


               So Mary Jo, me [and] my [h]onest sisters are looking forward to
               this meeting. See you on the 10th.


               Your honest [b]rother.

               P.S.
               Mary Jo, Thanks again for doing this. Because it’s time for
               everybody to know the real truth.

               (Appellant’s App. p. 16).


[10]   On January 16, 2015, Beckman filed a petition for a protective order against

       Flanagan. On March 30, 2015, Beckman and Flanagan appeared pro se, and

       they both argued their cases. After hearing all the evidence, the trial court

       found that Beckman “has shown by preponderance of the evidence that stalking

       has occurred” to justify the issuance of a protective order. (Tr. p. 26).


[11]   Flanagan now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                            I. Standard of Review

[12]   As an initial matter, we note that Beckman did not file an appellee’s brief.

       When an appellee fails to file a brief in response, we need not undertake the

       burden of constructing an argument on the appellee’s behalf. Tisdial v. Young,

       925 N.E.2d 783, 784 (Ind. Ct. App. 2010). We will reverse the trial court’s

       judgment if the appellant presents a case of prima facie error, which is defined

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       in this context as “at first sight, on first appearance, or on the face of it.” Id. at

       784-85.


[13]   In reviewing the sufficiency of the evidence to support the trial court’s judgment

       regarding a protective order, we neither reweigh the evidence nor resolve

       questions of credibility. See Tons v. Bley, 815 N.E.2d 509, 511 (Ind. Ct. App.

       2004). We consider only the probative evidence and reasonable inferences that

       support the trial court’s judgment. Maurer v. Cobb-Maurer, 994 N.E.2d 753, 755

       (Ind. Ct. App. 2013). We will reverse the trial court’s judgment regarding a

       protective order only if it is clearly erroneous—that is to say, when a review of

       the record leaves us firmly convinced that a mistake has been made. See

       Mysliwy v. Mysliwy, 953 N.E.2d 1072, 1076 (Ind. Ct. App. 2011), trans. denied.


[14]   The Indiana Civil Protection Order Act (the Act) provides that a protective

       order may be issued when a trial court finds, by a preponderance of the

       evidence, that the respondent represents a credible threat to the safety of the

       petitioner or a member of the petitioner’s household—that is, that domestic or

       family violence has occurred. See Maurer, 994 N.E.2d at 755 (citing Ind. Code §

       34-26-5-9). Except for an act of self-defense, “domestic or family violence”

       means the occurrence of at least one of the following acts committed by a

       family or household member:


               (1) Attempting to cause, threatening to cause, or causing physical
                   harm to another family or household member.
                   (2) Placing a family or household member in fear of physical
                   harm.
                   (3) Causing a family or household member to involuntarily

       Court of Appeals of Indiana | Memorandum Decision 62A01-1504-PO-145 | October 23, 2015   Page 6 of 11
                   engage in sexual activity by force, threat of force, or duress.
                   (4) Beating [ ], torturing [ ], mutilating [ ], or killing a
                   vertebrate animal without justification with the intent to
                   threaten, intimidate, coerce, harass, or terrorize a family or
                   household member.


                   For purposes of IC 34-26-5, domestic and family violence also
                   includes stalking (as defined in IC 35-45-10-1) or a sex offense
                   under IC 35-42-4, whether or not the stalking or sex offense is
                   committed by a family or household member.

               I.C. § 34-6-2-34.5.


[15]   In seeking a protective order against Flanagan, Beckman bore the burden of

       proof by a preponderance of the evidence that Flanagan represents a credible

       threat to her safety. Here, the trial court concluded that the two letters that

       Flanagan had sent to Beckman as well as the voice message, were

       “inappropriate.” (Tr. p. 23). As such, the trial court found that there was

       evidence of stalking and Beckman was entitled to a protective order.


                                                   II. Stalking

[16]   Stalking is defined as “a knowing or an intentional course of conduct involving

       repeated or continuing harassment of another person that would cause a

       reasonable person to feel terrorized, frightened, intimidated, or threatened and

       that actually causes the victim to feel terrorized, frightened, intimidated, or

       threatened.” I.C. § 35-45-10-1.4 “Harassment” in turn is defined as “conduct

       directed toward a victim that includes but is not limited to repeated or

       continuing impermissible contact that would cause a reasonable person to suffer



       Court of Appeals of Indiana | Memorandum Decision 62A01-1504-PO-145 | October 23, 2015   Page 7 of 11
       emotional distress and that actually causes the victim to suffer emotional

       distress.” I.C. § 35-45-10-2.


[17]   In the present case, Beckman testified that Flanagan’s letter and telephone voice

       message which occurred in 2011, as well as the letter addressed to her in

       January 2015, made her feel threatened and intimidated. In his appellate brief,

       Flanagan argues that the “sporadic contacts are arguably not sufficient to

       constitute a repeated or continuing conduct” that would cause a reasonable

       person to suffer emotional distress. (Appellant’s Br. p. 8). Specifically, he

       posits that the two contacts in 2011 “are too remote in time to constitute a

       sufficient threat to Beckman.” (Appellant’s Br. p. 8). Justifying his contacts

       with Beckman, Flanagan argues that he had “a legitimate business interest over

       which he was attempting to communicate with Beckman[—]i.e. an accounting,

       division and sale of the real property that was part of their father’s estate.”

       (Appellant’s Br. p. 8).


[18]   At trial, Beckman stated:


               The survey showed that [] the line was a couple of feet north
               from where [] Flanagan thought it should be. It touched the farm
               pond that was a water source for the barn. I told him that I
               would give them the pond. He is not a lawyer, he is not a
               surveyor and he is not the land owner. I think those are the only
               people who can write deeds. . . . He demanded that I sign this
               illegal deed. [] So [] I refused. Okay, so I proceeded to get [] a
               legal deed [] and I gave them the pond they were screaming
               about. It was 1/10th of an acre. [] After this was done, the
               screaming continued. They wanted me to get a new survey and
               move the line. So I no longer responded to this. He has my

       Court of Appeals of Indiana | Memorandum Decision 62A01-1504-PO-145 | October 23, 2015   Page 8 of 11
               mother thinking she is totally incompetent, which she is not.
               ****


               . . . He has always enjoyed teasing and tormenting our kids to
               make them cry. We had to be on guard all the time when he was
               around to protect our kids. . . . my daddy said that my sister was
               kind of like a cow, circling her calf to make sure that her kids
               weren’t tormented by him. Studies have showed that this type of
               personality is that type that goes crazy and does things. Which I
               do not want to be a statistic. I am scared. I have installed
               driveway alarms, I have installed an ADT system in my home.
               He does not act rationally and I don’t want to wait around to see
               what he does next. I don’t want to be a statistic when he goes
               berserk.

               (Tr. pp. 11-12).


[19]   In response to Beckman’s claims, Flanagan pointed out that he was not stalking

       Beckman, but “all I was trying to do was . . . get the place sold and . . .

       Beckman was not cooperative . . . .” (Tr. p. 17). In addition, Flanagan denied

       ever going to Beckman’s house to demand a “check for $134, 000 for the

       remaining land and house”; rather, because Beckman was not cooperating,

       Flanagan instructed his sister “to offer [Beckman] to buy the rest of the property

       at the appraisal price.” (Tr. p. 17). As for the 2015 letter, Flanagan indicated

       that even though he was not invited to the family gathering, it was not at

       Beckman’s house but at Jean’s house.


[20]   Viewed from the perspective of our standard of review, we agree with Flanagan

       that the evidence is insufficient to sustain the issuance of the protective order.

       We initially note that Flanagan had Mother’s power of attorney, and after

       Court of Appeals of Indiana | Memorandum Decision 62A01-1504-PO-145 | October 23, 2015   Page 9 of 11
       Father’s demise, he had the undertaking of closing the estate. Turning to the

       first “stalking” incident—the American Greed letter of 2011—we find that this

       letter does not give rise to a plausible claim that Beckman felt terrorized,

       frightened, intimidated, or threatened. We note that this letter meant to settle

       the issues regarding the land survey and the fact that Beckman had wrongfully

       acquired the pond. When Beckman failed to respond to Flanagan’s requests,

       Flanagan left Beckman a voice message indicating that the pond issue remained

       unsolved. Furthermore, the record shows that Flanagan’s statement in the

       voice message: “if you don’t want to cooperate, there is ways to make you

       cooperate,” was nothing more than Flanagan’s way of informing Beckman that

       he would engage a lawyer if Beckman failed to comply. (Tr. p. 15).


[21]   Furthermore, no evidence was presented to the trial court that would permit an

       inference that a reasonable person would feel terrorized, frightened,

       intimidated, or threatened by the receipt of the 2015 letter. The evidence

       presented at trial indicates only that, after three years of no contact, separate

       from the land dispute, Flanagan initiated a third contact by informing Beckman

       that he would be attending the family gathering and that his other sisters were

       expecting an explanation of Father’s missing documents. As such, we find that

       this letter contained nothing a reasonable person would consider ominous or

       intimidating.


[22]   Here, although Beckman felt that Flanagan’s contacts were unwelcomed,

       Flanagan had every right to contact her on any issues affecting Father’s estate

       as he had Mother’s power of attorney. In this regard, we find that no evidence

       Court of Appeals of Indiana | Memorandum Decision 62A01-1504-PO-145 | October 23, 2015   Page 10 of 11
       was presented to the trial court that would permit an inference that Flanagan

       intended to stalk Beckman by the three contacts: two in 2011 and one in 2015.


                                               CONCLUSION

[23]   In light of the foregoing, we find that there was insufficient evidence of stalking

       to support the issuance of a protective order.


[24]   Reversed.


[25]   Brown, J. and Altice, J. concur




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