Lorraine Tietjen v. PEP Educational Support, Inc., Turner Marketing, Inc., and Richard P. Turner ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
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.
APPELLANT PRO SE: ATTORNEY FOR APPELLEES:
LORRAINE TIETJEN JONATHAN R. ELROD
Indianapolis, Indiana Elrod & Mascher, P.C.
FILED
Indianapolis, Indiana
Apr 04 2012, 9:21 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
LORRAINE TIETJEN, )
)
Appellant-Plaintiff, )
)
vs. ) No. 49A02-1102-PL-152
)
PEP EDUCATIONAL SUPPORT, INC., )
TURNER MARKETING, INC., and )
RICHARD P. TURNER, )
)
Appellees-Defendants. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Theodore M. Sosin, Judge
Cause No. 49D02-0812-PL-56249
April 4, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Lorraine Tietjen appeals the trial court’s judgment in favor of PEP Educational
Support, Inc. (“PEP”), Turner Marketing, Inc. (“TMI”), and Richard P. Turner (“Turner”)
following a bench trial on her complaint alleging fraud and breach of contract. Tietjen
appears to present several issues for our review, but the statement of issues is
indiscernible. In essence, Tietjen seems to contend that the trial court erred when it
entered judgment in favor of PEP, TMI, and Turner.
We affirm.
FACTS AND PROCEDURAL HISTORY
The trial court set out the facts and procedural history of this case as follows:
1. PEP is an Indiana nonprofit corporation that endeavors to integrate a
voucher system to raise funds for local schools and educational savings
accounts for college scholarships. . . . Turner is the National Director of
PEP, and in June and July of 2005, PEP was unfunded and had no
employees.
2. TMI is a for[-]profit corporation owned by Turner. PEP has contracted
with TMI to market vouchers for PEP. TMI has no employees, but plans
on the use of District Managers as independent contractors to be paid by
commission.
3. Turner is employed as a prescription courier and receives no income
from TMI or PEP.
4. Turner placed an employment advertisement with Workforce One
regarding the position of an Administrative Assistant. On July 15, 2005,
Tietjen responded to the Turner ad and the parties met at an Einstein’s
Bagels. At that meeting, Turner advised Tietjen that PEP was doing some
preliminary work to identify potential employees contingent upon the
receipt of a grant that was currently in process. Turner further advised
Tietjen that upon the receipt of a grant, that she would be considered for
employment.
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5. Tietjen acknowledged that Turner explained the PEP organization and
how it worked and that Turner represented that he hoped he would get
funding to be in a position to hire and pay her.
6. Tietjen and Turner did not discuss Tietjen’s proposed wages on that date
or any other date. Tietjen did not ask about her wages and Turner did not
specifically offer a job. Tietjen’s sole testimony as to the terms of her
employment was that her terms of employment were found within the
“match sheet” she obtained from Workforce One. Those terms listed a job
from 8:00 A.M. to 5:00 P.M., full time, and with a pay range of $100.00 to
$200.00 per day.
***
8. During the July 15, 2005, interview, Tietjen advised Turner that she was
currently without a permanent residence, and Turner offered that he had a
spare room and would consider her as a roommate, if she would help out
around the house. While Tietjen’s recollection of that meeting was that her
room would be paid for by housework, Turner testified rent was to be $100
a week with house cleaning or $125 a week without household cleaning.
Tietjen moved in the next day. Within days of moving in, Turner presented
Tietjen with a lease, which she had her lawyer review. The lease
contemplated two separate rates: one with cleaning, and one without
cleaning. The lease was never executed. . . .
9. Testimony of both Plaintiff and Defendant was that Tietjen was advised
a few days after she moved to Turner’s Condominium that the grant
discussed at the July 15, 2005, meeting would not happen.
10. [Tietjen filed a complaint against the defendants, and, at the subsequent
trial,] Tietjen submitted time records for the 4 weeks that she lived in
Turner’s Condominium that purports to establish the work done on behalf
of Turner, PEP and TMI. Although Tietjen maintains that she was ready
and available for work from 8:00 A.M. to 5:00 P.M., her log chronicled less
than 21.2 hours over 4 weeks, with 2 hours listed as work for PEP, over
half of the remaining hours on domestic activities, along with a July 18th
entry that merely states “I did my own errands.”
11. Turner testified that he was unaware of any work Tietjen did for PEP
that was unrelated to housecleaning. . . . Tietjen testified that the only
reason she did not work eight-hour days was because Turner did not give
her sufficient work. Tietjen’s testimony was vague as to how she actually
spent her work days. . . .
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***
13. On September 8, 2005, Tietjen was evicted from the home by the
Wayne Township Small Claims Court. Tietjen did not appeal the eviction
within sixty days. Tietjen appealed a judgment against her for rent on
November 13, 2008.
14. Tietjen has litigated this matter in two small claims courts and two
superior courts over the course of over five years. Both of the small claims
actions resulted in default judgments for failure to appear. In this court,
Tietjen has filed three complaints. Tietjen’s claim at trial of this cause is to
damages in the amount of $25,000 for wrongful eviction.
Brief of Appellant at 31-35.1
Following the bench trial, the trial court issued the following conclusions:
16. The facts presented clearly establish that there was no offer of
employment by Turner, no meeting of the minds as to pay rate, hours, or
duties. Tietjen’s unilateral belief that she was hired is insufficient to bind
Turner, TMI, or PEP. No employment contract existed, either expressed or
implied. The evidence supports the fact that Turner and Tietjen did not
conduct themselves in a manner that would suggest an employer-employee
relationship. The two parties acted more as roommates than employer and
employee.
***
18. The employment advertisement only reflected the present intention to
interview job-seekers. The advertisement made no misrepresentation of a
past or existing fact. At the initial meeting, Turner testified that PEP was
not funded, PEP could not hire, and that grant funding was anticipated. The
representation that a grant may come in the future, even if untrue, cannot be
the grounds for fraudulent misrepresentation. The circumstances reveal
that Tietjen could not reasonably believe she was hired at the initial
meeting because she was not actually asked to do any work other than
domestic activities.
19. Tietjen failed to appeal her eviction from Turner’s property within
sixty days, and her claim for wrongful eviction is barred.
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Tietjen did not include a copy of the trial court’s order in her appendix. See Ind. Appellate
Rule 50(A)(2)(b).
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20. Tietjen’s rent was to be in the amount of $100 a week. Turner is
entitled to $700.00 for seven weeks of rent.
21. . . . Tietjen’s numerous continuances, her failures to appear, and her
on-again off-again pursuit of this litigation is troubling. While a pro se
party may be given some latitude, Tietjen’s actions are not as easily
overlooked. With the introduction of her time log, it became readily
apparent that Tietjen’s claims are at best frivolous. She pursued a claim for
wages involving four 40-hour weeks, even though she testified she did not
work 40-hours a week, did not work 8:00 A.M.-5:00 P.M., and worked the
equivalent of less than three days. The fact that Tietjen maintained at trial
that her time log reflected only household duties is not supported by any
other evidence which is part of this Court’s record. The Defendant’s
counsel is ordered to provide the Court with an Affidavit of Attorney’s fees
for consideration by the Court.
THEREFORE, it is ORDERED, ADJUDGED and AGREED that:
1. As to Lorraine Tietjen’s Amended Complaint, judgment is entered in
favor of Richard P. Turner, Turner Marketing, Inc., and PEP Education
Support, Inc.
2. As to Richard P. Turner’s claim for eviction, judgment is entered in
favor of Richard P. Turner and against Lorraine Tietjen in the amount of
Seven Hundred Dollars ($700.00).
3. As to the Counterclaim of [Turner, TMI, and PEP, seeking rent
payments and attorney’s fees], judgment is entered against Lorraine Tietjen
in an amount to be determined after counsel’s submission of an Affidavit of
Attorney’s Fees.
4. Defendant’s counsel having submitted his Affidavit for Attorney’s Fees,
the Court now enters a judgment in favor of Richard P. Turner and against
Lorraine Tietjen for attorney’s fees in the amount of $7,000.00.
Id. at 36-39. This appeal ensued.
DISCUSSION AND DECISION
Tietjen is appealing from both an adverse judgment and a negative judgment.
Specifically, the entry of judgment in favor of Turner on his counterclaim for eviction
and in favor of Turner, TMI, and PEP on their claim for attorney’s fees is an adverse
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judgment. Thus, we will hold the trial court’s findings on those counterclaims clearly
erroneous if they are not supported by substantial evidence of probative value. See
Garling v. Ind. Dep’t of Nat’l Res., 766 N.E.2d 409, 411 (Ind. Ct. App. 2002), trans.
denied. And even if the supporting evidence is substantial, we will reverse only if we are
left with a definite and firm conviction that a mistake has been made. See id.
The ruling against Tietjen on her claims, however, is a negative judgment.
Therefore, we will reverse the trial court’s judgment on her claims only if the evidence is
without conflict and all reasonable inferences to be drawn from the evidence lead to a
conclusion other than that reached by the trial court. See Nodine v. McNerney, 833
N.E.2d 57, 65 (Ind. Ct. App. 2005), clarified on reh’g, trans. denied. In determining
whether a judgment is clearly erroneous, we do not reweigh the evidence or determine
the credibility of witnesses, and we consider only the evidence supporting the judgment
and the reasonable inferences to be drawn therefrom. Councellor v. Ecenbarger, Inc., 834
N.E.2d 1018, 1021 (Ind. Ct. App. 2005).
Initially, Turner, TMI, and PEP contend that Tietjen has waived the issues she
asserts on appeal. In particular, they point out that, in her brief, Tietjen: “makes no
references to the transcript[;] fails to separate the issues[;] fails to cite any case law, []or
[include a] standard of review[;] repeatedly references evidence not introduced at trial[;
and] repeatedly makes conclusory statements.” Brief of Appellees at 8. We must agree.
It is well settled that pro se litigants are held to the same standards as licensed
attorneys and are required to follow procedural rules. Evans v. State, 809 N.E.2d 338,
344 (Ind. Ct. App. 2004), trans. denied. Tietjen’s violations of the appellate rules are
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numerous and flagrant. First, while Tietjen includes a section entitled “TABLE OF
AUTHORITIES,” that section consists of a list of Indiana statutes regarding employment
law and landlord-tenant relations and an excerpt from a U.S. Department of Labor
website. None of the authorities listed are included in the argument section of Tietjen’s
brief.
Next, a section of Tietjen’s brief entitled “STATEMENT OF ISSUES AND
ARGUMENT” includes nine numbered paragraphs. Those paragraphs do not include
concise statements of particular issues as contemplated by Indiana Appellate Rule
46(A)(4). For example, the first paragraph reads as follows:
Jon Elrod [defense counsel] lied to Judge Sosin about me, especially during
times that were off the record and not being recorded. He did this during a
conference and at the end of this trial. Elrod slandered my good name and
upstanding character by lying and saying that I’d “been arrested” when he
knows for a fact I’ve never been arrested in my life and have NO arrest
record! I even passed the FBI background check with no issues in 2010. In
fact, that background check was the first and only time I’ve been
fingerprinted.
Brief of Appellant at 10. We are unable to discern any issue presented for our review in
Tietjen’s statement of the issues.
Finally, Tietjen does not make any cogent argument or cite to legal authority in the
argument section of her brief. As our supreme court has stated,
The requirement in Appellate Rule [46(A)(8)] that a party provide cogent
argument with adequate citation of authority serves at least two objectives.
First, it affords opposing parties a fair opportunity to respond. Second, it
promotes impartiality in the appellate tribunal; a court which must search
the record and make up its own arguments because a party has presented
them in perfunctory form runs the risk of being an advocate rather than an
adjudicator.
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Keller v. State, 549 N.E.2d 372, 373 (Ind. 1990) (emphasis added).
We hold that Tietjen has waived review of any issues she has presented in this
appeal. Waiver notwithstanding, our review of the record indicates that the evidence
supports the trial court’s findings and conclusions. To the extent that we can discern the
issues Tietjen attempts to set out, she appears to ask that we reweigh the evidence and
assess the credibility of the witnesses, which we will not do.
Affirmed.
ROBB, C.J., and VAIDIK, J., concur.
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