Larry R. Flanagan v. Mary J. Beckman (mem. dec.) ( 2015 )

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
Court of Appeals of Indiana | Memorandum Decision 62A01-1504-PO-145 | October 23, 2015 Page 5 of 11
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
Court of Appeals of Indiana | Memorandum Decision 62A01-1504-PO-145 | October 23, 2015 Page 11 of 11