                                                                  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.




Court of Appeals of Indiana | Opinion 71A03-1510-PL-1820 | August 19, 2016              Page 1 of 12
                                             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

      Court of Appeals of Indiana | Opinion 71A03-1510-PL-1820 | August 19, 2016   Page 2 of 12
      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



      Court of Appeals of Indiana | Opinion 71A03-1510-PL-1820 | August 19, 2016   Page 3 of 12
      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

      Court of Appeals of Indiana | Opinion 71A03-1510-PL-1820 | August 19, 2016   Page 4 of 12
               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

       Court of Appeals of Indiana | Opinion 71A03-1510-PL-1820 | August 19, 2016   Page 5 of 12
       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).



       Court of Appeals of Indiana | Opinion 71A03-1510-PL-1820 | August 19, 2016                            Page 6 of 12
       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

       Court of Appeals of Indiana | Opinion 71A03-1510-PL-1820 | August 19, 2016   Page 7 of 12
       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

       Court of Appeals of Indiana | Opinion 71A03-1510-PL-1820 | August 19, 2016   Page 8 of 12
       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

       Court of Appeals of Indiana | Opinion 71A03-1510-PL-1820 | August 19, 2016   Page 9 of 12
       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

       Court of Appeals of Indiana | Opinion 71A03-1510-PL-1820 | August 19, 2016   Page 10 of 12
       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


       Court of Appeals of Indiana | Opinion 71A03-1510-PL-1820 | August 19, 2016   Page 11 of 12
       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.




       Court of Appeals of Indiana | Opinion 71A03-1510-PL-1820 | August 19, 2016   Page 12 of 12
