Opinion
23A-MF-2245
05-29-2024
Adam Sean Tempest and Tiffany Dawn Tempest, Appellants-Defendants v. Fifth Third Bank, National Association, Appellee-Plaintiff
APPELLANT PRO SE Adam S. Tempest Greensburg, Indiana ATTORNEY FOR APPELLEE Kurt V. Laker DOYLE & FOUTTY, P.C. Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Decatur Superior Court The Honorable Kenneth R. Bass, Magistrate Trial Court Cause No. 16D01-2301-MF-14
APPELLANT PRO SE
Adam S. Tempest
Greensburg, Indiana
ATTORNEY FOR APPELLEE
Kurt V. Laker
DOYLE & FOUTTY, P.C.
Indianapolis, Indiana
Bailey and Felix Judges concur.
MEMORANDUM DECISION
May, Judge.
[¶1] Adam Sean Tempest appeals following the trial court's order granting summary judgment in favor of Fifth Third Bank, National Association ("Fifth Third"). The parties raise multiple issues for our review, but we find dispositive one issue raised by Fifth Third: whether Tempest waived all issues on appeal because of his failure to comply with the Indiana Appellate Rules. We conclude that he did and affirm the trial court.
Facts and Procedural History
[¶2] On April 20, 2020, Tempest executed a mortgage note promising to pay Fifth Third $104,500.00 plus interest over a period of twenty-five years. Tempest used the mortgage loan to purchase property in Greensburg, Indiana. At some point, Tempest stopped making his scheduled mortgage payments.
[¶3] On February 7, 2022, Tempest filed a small claims lawsuit against Fifth Third in Decatur Superior Court, cause number 16D01-2202-SC-000049 ("Cause 049"), alleging:
1. Defendant is committing an FDCPA violation on the plaintiffs [sic] Experian credit report under 15 USC §§ 1601-1667j (full disclosure).
2. The Defendant has been asked to verify the debt/loan/mortgage and confirm they are reporting it correctly to the credit bureaus.
3. The Defendant has failed to demonstrate and admitted that they are not the holder in due course.
4. Venue is proper with this court based on the Defendant having a local branch and doing business here in DECATUR county.(Appellee's App. Vol. 3 at 4) (emphasis in original). Fifth Third moved for summary judgment in Cause 049 on April 29, 2022. Fifth Third argued that it was the legitimate holder of the promissory note and mortgage. In support of its motion, Fifth Third designated an affidavit from Shannon Seibert, a Litigation Portfolio Analyst for Fifth Third. Seibert averred, in part:
6. Attached hereto as Exhibit A is a true and accurate copy of the promissory note in the amount of $104,500.00, which is part of the Mortgage Loan (the "Note").
7. Fifth Third Bank obtained possession of the original Note at its origination and has been in continuous possession of the Note since its origination.(Id. at 8.) The trial court granted Fifth Third's motion for summary judgment on May 2, 2022. Tempest did not file a motion to correct error or appeal the order.
[¶4] On January 11, 2023, Fifth Third filed a complaint in the Decatur Superior Court, cause number 16D01-2301-MF-000014 ("Cause 014"), seeking to foreclose on Tempest's property. Fifth Third alleged Tempest had defaulted on the mortgage because of his failure to make the required monthly payments. Tempest filed his answer on February 2, 2023. Tempest also asserted a counterclaim alleging Fifth Third was wrongfully pursuing foreclosure against him.
Fifth Third Bank also named Tempest's ex-wife Tiffany Dawn Tempest as a defendant so that she could assert any interest she may have in the real estate pursuant to her dissolution of marriage from Tempest. Tiffany did not assert any interest in the property before the trial court and does not participate in this appeal.
[¶5] On May 31, 2023, Fifth Third moved for summary judgment on both its foreclosure complaint and on Tempest's counterclaim. In support of its motion for summary judgment, Fifth Third designated an affidavit of debt along with the promissory note and mortgage documents Tempest had executed. In Tempest's response to Fifth Third's motion for summary judgment, he contended that Fifth Third "has not allowed the defendant to see the original promissory with my wet ink signature or provided the accounting to prove a debt exist and failed to give a loan to the defendant." (Appellee's App. Vol. 2 at 174) (errors in original). In reply, Fifth Third asserted the authenticity of the note was established because Tempest did not deny in his answer to Fifth Third's complaint that the copy of the promissory note attached to Fifth Third's complaint was authentic. Moreover, Fifth Third argued that because the authenticity of the promissory note was established in Cause 049, Tempest was barred from relitigating the note's authenticity in Cause 014. On August 25, 2023, the trial court granted Fifth Third's motion for summary judgment and entered a decree of foreclosure. Tempest then filed a series of post-judgment motions, which were all denied by the trial court.
Discussion and Decision
[¶6] Initially, we note Tempest proceeds on appeal pro se. We hold pro se litigants to the same standard as trained attorneys and afford them no inherent leniency because of their self-represented status. Zavodinik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). 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." Basic v. Amouri, 58 N.E.3d 980, 983-84 (Ind.Ct.App. 2016), reh'g denied. "One of the risks that a [litigant] takes when he decides to proceed pro se is that he will not know how to accomplish all of the things that an attorney would know how to accomplish." Smith v. Donahue, 907 N.E.2d 553, 555 (Ind.Ct.App. 2009), trans. denied, cert. denied, 558 U.S. 1074 (2009).
Tempest's brief begins:
The Appellant is not a corporate entity, ward of the state, Trustee, or representing pro se.
The Appellant is a man and is indigenous to these lands. I am proceeding as sui juris and authorized representative of ADAM SEAN TEMPEST and am the beneficiary of that name and this case.(Appellant's Br. at 4) (emphasis in original). Despite Tempest's assertion that he is not proceeding pro se, he is representing himself. It is clear from the language in Tempest's brief that he is an acolyte of the "sovereign citizen" movement, "a loosely-formed group of citizens who believe that they are sovereign individuals" beyond the reach of the courts. Lewis v. Texas, 532 S.W.3d 423, 430 (Tex. App.-Houston [14th Dist.] 2016). However, this Court and our sister courts have repeatedly rejected such arguments because they are baseless. See, e.g., Taylor-Bey v. State, 53 N.E.3d 1230, 1231-32 (Ind.Ct.App. 2016) (holding trial court possessed personal and subject matter jurisdiction over the defendant and rejecting his sovereign citizen argument) & Holland v. Trs. of Ind. Univ., 171 N.E.3d 684, 690 (Ind.Ct.App. 2021) (holding litigant who repeatedly filed frivolous motions advancing sovereign citizen argument should be sanctioned), reh'g denied, trans. denied; see also U.S. v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011) ("Regardless of an individual's claimed status of descent, be it as a 'sovereign citizen,' a 'secured-party creditor,' or a 'flesh-and-blood human being,' that person is not beyond the jurisdiction of the courts. These theories should be rejected summarily, however they are presented."), reh'g denied, reh'g en banc denied, cert. denied, 132 S.Ct. 1612 (2012).
[¶7] The Indiana Rules of Appellate Procedure govern proceedings before this Court, and "[a]lthough we will exercise our discretion to reach the merits when violations are comparatively minor, if the parties commit flagrant violations of the Rules of Appellate Procedure we will hold issues waived, or dismiss the appeal." Miller v. Hague Ins. Agency, Inc., 871 N.E.2d 406, 407 (Ind.Ct.App. 2007), reh'g denied. Indiana Rule of Appellate Procedure 46(A)(4) provides that the statement of the issues in an appellant's brief "shall concisely and particularly describe each issue presented for review." Tempest's statement of the issue states: "Did the lower court make several errors in its decision?" (Appellant's Br. at 5) (emphasis in original). This statement does not provide us with any insight regarding specifically what issues we are expected to review on appeal.
[¶8] In addition, Indiana Rule of Appellate Procedure 46(A)(5) provides that the statement of the case "shall briefly describe the nature of the case, the course of the proceedings relevant to the issues presented for review, and the disposition of these issues by the trial court or Administrative Agency." The statement of the case is also required to include page references to the record on appeal or the appendix. Id. Tempest's statement of the case is ten pages long and fails to cite any page numbers in the appendix. Tempest's statement of the case is also so interspersed with conclusory assertions and rhetorical asides that we cannot discern from Tempest's statement of the case the true course of proceedings before the trial court. Similarly, Tempest's statement of the facts lacks citation to pages in the appendix and is not a coherent narrative. See Ind. R. App. Proc. 46(A)(6).
[¶9] Indiana Appellate Rule 46(A)(8) requires that an appellant's argument "contain the contentions of the appellant on the issues presented, supported by cogent reasoning." The argument "must be supported by citations to the authorities, statutes, and the Appendix[.]" Id. "We demand cogent argument supported with adequate citation to authority because it promotes impartiality in the appellate tribunal." Young v. Butts, 685 N.E.2d 147, 151 (Ind.Ct.App. 1997). We cannot risk becoming an advocate for one of the parties. Id. Therefore, a party cannot simply assert "general contentions and abstract and incomplete legal pronouncements, with the apparent expectation that the court will rummage through the evidence and the decree of the trial court in quest of a suggested ground or reason for reversal of that court's determination of the action." Ecker v. Fuchs, 159 N.E.2d 134, 139 (Ind.Ct.App. 1959). Here, Tempest's argument consists of eighteen short paragraphs with each paragraph asserting a different general contention or legal pronouncement. Tempest's brief is incomprehensible, and consequently, we hold Tempest has waived all issues on appeal. See, e.g., Martin v. Brown, 129 N.E.3d 283, 286 (Ind.Ct.App. 2019) (holding appellant waived issues for review because of his failure to present a cogent argument).
After Tempest filed his reply brief on December 4, 2023, Tempest filed various repetitive and defective motions seeking leave to file an amended brief and amended appendices. Fifth Third then filed a motion to strike all of Tempest's pleadings filed after December 4, 2023. Indiana Rule of Appellate Procedure 42 provides that we may strike "any redundant, immaterial, impertinent, scandalous or other inappropriate matter." Tempest's motions are inappropriate because briefing concluded when he submitted his reply brief, and Tempest's effort to reopen and prolong the briefing period is fundamentally unfair to Fifth Third. Therefore, by separate order, we grant Fifth Third's motion to strike.
Conclusion
[¶10] Tempest has waived all issues on appeal because of his flagrant violations of the Rules of Appellate Procedure. Therefore, we affirm the trial court.
[¶11] Affirmed.
Bailey, J., and Felix, J., concur.