Raj Kumar Lall v. K.M. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 26 2020, 9:28 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT
G. Allen Lidy
Lidy Law, PC
Mooresville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Raj Kumar Lall, March 26, 2020
Appellant-Respondent, Court of Appeals Case No.
19A-PO-1812
v. Appeal from the
Hamilton Superior Court
K.M., The Honorable
Appellee-Petitioner. William J. Hughes, Judge
Trial Court Cause No.
29D03-1905-PO-4888
Kirsch, Judge.
[1] Raj Kumar Lall (“Lall”) appeals the trial court’s entry of a protective order
issued against him and in favor of K.M. He raises the following restated issue
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on appeal: whether K.M. presented sufficient evidence to support the trial
court’s issuance of a protective order against Lall.
[2] We vacate and remand with instructions.
Facts and Procedural History
[3] On May 23, 2019, K.M. filed a petition for an order for protection. Appellant’s
Conf. App. Vol. 2 at 5-11. The trial court granted an ex parte order on May 24,
2019. Id. at 12-14. Lall requested an evidentiary hearing, and, on July 12,
2019, the trial court held a hearing in this matter. Id. at 15-16. On July 12,
2019, the trial court issued a permanent order of protection. The entirety of that
order states:
FINDINGS
This matter having been heard by the Court on 7/12/2019
pursuant to Indiana Code [section] 34-26-5-10. The Court now
makes the following Findings:
a. Raj Kumar Lall filed a timely Request for Hearing pursuant to
Indiana Code [section] 34-26-5-10(a); and/or,
b. The Court is required to hold a hearing pursuant to Indiana
Code [section] 34-26-5-10(b).
c. The Petitioner was present at the hearing and the Respondent
was present.
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d. This order does not protect an intimate partner or child.
e The Respondent had notice and an opportunity to be heard.
f. The Respondent represents a credible threat to the safety of the
Petitioner or a member of the Petitioner’s household.
g. The Petitioner has shown by a preponderance of the evidence,
that stalking has occurred sufficient to justify the issuance of this
Order.
h. The Respondent does not agree to the issuance of the Order
for Protection.
i. The following relief is necessary to bring about a cessation of
the violence or the threat of violence.
ORDER
Section 1 - General Provisions
1. The Respondent is hereby enjoined from threatening to
commit or committing acts of stalking against the Petitioner and
the following designated family or household members, if any:
[R.C.]; [A.M.]
2. The Respondent is prohibited from harassing, annoying,
telephoning, contacting, or directly or indirectly communicating
with the Petitioner.
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3. . . .
4. The Respondent is ordered to stay away from the residence of
the Petitioner.
Id. at 18-20. Lall now appeals.
Discussion and Decision
[4] We begin by noting that K.M. has not filed an appellee’s brief. When an
appellee fails to file a brief, we need not undertake the burden of developing an
argument on the appellee’s behalf. C.V. v. C.R., 64 N.E.3d 850, 852 (Ind. Ct.
App. 2016). Instead, applying a less stringent standard of review, we may
reverse the trial court’s judgment if the appellant can prove a case of prima facie
error. Id. “Prima facie error in this context is defined as, ‘at first sight, on first
appearance, or on the face of it.’” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065,
1068 (Ind. 2006) (quoting Santana v. Santana, 708 N.E.2d 886, 887 (Ind. Ct.
App. 1999)).
[5] Lall contends that there was insufficient evidence to support the issuance of the
protective order against him and in favor of K.M. He asserts that the three
“incidents” referenced in K.M.’s petition for order of protection were not
supported by the evidence at trial. Lall further argues that Exhibits 1 and 8,
which were admitted by K.M. at the hearing, contain only a single
communication from Lall to K.M., made at the same time in 2018, and the
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communication was not sufficient evidence of stalking. Lastly, he maintains
that K.M.’s testimony at the hearing did not prove stalking, and his testimony
at the hearing refuted K.M.’s claim of stalking.
[6] The Indiana Civil Protection Order Act was designed to promote protection
and safety for all victims of domestic or family violence and victims of
harassment in a fair, prompt, and effective manner and to prevent future
domestic and family violence and harassment. Ind. Code § 34-26-5-1.
“Protective orders are similar to injunctions, and therefore in granting an order
the trial court must sua sponte make special findings of fact and conclusions
thereon.” Fox v. Bonam, 45 N.E.3d 794, 798 (Ind. Ct. App. 2015) (citing
Hanauer v. Hanauer, 981 N.E.2d 147, 148 (Ind. Ct. App. 2013)). Similarly,
Indiana Rule of Trial Procedure 52(A) states, “[t]he court shall make special
findings of fact without request (1) in granting or refusing preliminary
injunctions . . . .” We apply a two-tiered standard of review: we first determine
whether the evidence supports the findings, and then we determine whether the
findings support the order. Fox, 45 N.E.3d at 798. In deference to the trial
court’s proximity to the issues, we disturb the order only where there is no
evidence supporting the findings or the findings fail to support the order. Koch
Dev. Corp. v. Koch, 996 N.E.2d 358, 369 (Ind. Ct. App. 2013), trans. denied. We
do not reweigh evidence or reassess witness credibility, and we consider only
the evidence favorable to the trial court’s order. Id.Court of Appeals of Indiana | Memorandum Decision 19A-PO-1812 | March 26, 2020 Page 5 of 8
[7] This court has noted the “‘significant ramifications of an improperly granted
protective order.’” J.K. v. T.C., 25 N.E.3d 179, 181 (Ind. Ct. App. 2015)
(quoting Barger v. Barger, 887 N.E.2d 990, 993 (Ind. Ct. App. 2008)). “For
example, at the state level, violation of the trial court’s protective order is
‘punishable by confinement in jail, prison, and/or a fine.’ [Ind. Code] § 34-26-
5-3. . . . Thus, an improperly granted protective order may pose a considerable
threat to the respondent’s liberty.” Id.
[8] In order for a trial court to issue a protective order, the petitioner must prove by
a preponderance of the evidence that stalking has occurred. C.V., 64 N.E.3d at
853; Ind. Code § 34-26-5-2(a)(2) (allowing a petitioner to file a petition for a
protective order against a “person who has committed stalking”). Indiana law
defines “stalking” 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.’” Maurer v. Cobb-Maurer, 994 N.E.2d 753, 757 (Ind. Ct. App. 2013)
(quoting Ind. Code § 35-45-10-1) (emphasis added).
[9] Here, the trial court did not issue its own specific findings based on the evidence
presented during the contested hearing. Appellant’s Conf. App. Vol. 2 at 18-20.
The order contained no findings as to how the evidence presented supported
that there was “‘a knowing or an intentional course of conduct involving
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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.’” See Maurer, 994 N.E.2d at 757. Instead, it merely quoted the
sparse findings from the earlier temporary, ex parte order of protection, which
stated:
a. The Petitioner has shown, by a preponderance of the evidence,
that stalking has occurred sufficient to justify the issuance of this
Order.
b. This order does not protect an intimate partner or child.
c. The Respondent represents a credible threat to the safety of the
Petitioner or a member of the Petitioner’s household.
d. The following relief is necessary to bring about a cessation of
the violence or the threat of violence.
Appellant’s Conf. App. Vol. 2 at 13. As such, we conclude the trial court’s July 12,
2019 order does not comply with the requirements of Indiana Rule of Trial
Procedure 52(A) or Indiana case law. We, therefore, vacate the order and
remand this matter with instructions for the trial court to issue findings of fact
and conclusions thereon consistent with that authority.
[10] Vacated and remanded with instructions.
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Bailey, J., and Mathias, J. concur.
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