Leone v. Keesling

OPINION

Case Summary

James R. Leone appeals the trial court's denial of various motions and requests for attorney's fees, expenses, and contempt against Linda Keesling, and Priscilla Lep-hart, Hagar Anderson, James Bridges, Earl and Evelyn Haibe, Esear App, Mabel McGuffey, Ruth Amick, and Dora Butrum (collectively, "Appellees"). We affirm.

Issue

We consolidate and restate Leone's issues as whether he has waived review of the trial court's rulings on various matters.

Facts and Procedural History

A "big-picture" version of the facts giving rise to this appeal may be found in a companion case we decide today, Keesling v. Beegle, No. 18A04-0501-CV-10, 858 N.E.2d 980, 2006 WL 3742228 (Ind.Ct.App. Dec. 21, 2006). For purposes of this opinion, we note that

in 1986, Paul Rubera founded Alpha Tel-com, Ine. ("Alpha"), an Oregon company that sold, installed, and maintained telephones and business systems. See S.E.C. v. Alpha Telcom, Inc., 187 F.Supp.2d 1250, 1254 (D.0r.2002). In 1997, Charles Tummino approached Rubera and suggested selling "payphones to individuals who would then enter into a service agreement with Alpha to install, service, and maintain the payphones." Id. Rubera consulted Alpha's attorney, Dan Lacy, who issued an opinion letter concluding that the arrangement would not constitute the sale of a security. Lacy sought an opinion from Florida attorney James Leone, who reached the same conclusion.

Id., 858 N.E.2d at 982, 2006 WL 37422283.

In another companion case, we recited the following facts regarding Leone's involvement with the payphone program and the procedural history leading to this appeal:

Leone understood that his legal opinion "[wlas to be used to give assurance to Alpha Telecom that they were engaged in a legal business. It was issued to Paul *1011 Rubera, he specifically wanted his butt covered, you know, for criminal purposes as well as civil purposes...." Leone's opinion addressed whether payphone sales constituted the sale of a security under the laws of Florida, Oregon, and the Eleventh and Ninth Circuits.

In October 1998, American Telecommunications Company, Inc. ("ATC"), was created to market and sell the payphone program to investors. Leone allowed his opinion letter to be included in the manual provided to payphone program sales representatives. At the request of Ross Rambach, Leone also sent the opinion letter to individual sales representatives "who said I want to see it from an attorney."

Keesling v. Winstead, No. 18A02-0601-CV-73, 858 N.E.2d 996, 998-99, 2006 WL 3742214 (Ind.Ct.App. Dec. 21, 2006) (footnotes and some quotation marks and citations omitted).

In February 2002, several Appellees filed a complaint alleging violations of the Indiana Securities Act and the Indiana Corrupt Business Influence Act (RICO), as well as theft, conversion, and common law fraud. Appellees added Leone as a defendant in their first amended complaint in August 2002. Leone unsuccessfully sought removal to federal court and dismissal for lack of personal jurisdiction. In March 2003, Appellees filed a second amended complaint, which Leone unsuccessfully sought to dismiss. In December 20083, Ap-pellees filed a third amended complaint, which Leone unsuccessfully sought to dismiss. In May 2004, Appellees filed a fourth amended complaint, which Leone unsuccessfully sought to dismiss.

On May 3, 2005, Appellees moved for summary judgment against several defendants, including Leone, as to the merits of their claims and the issue of personal jurisdiction. On May 9, 2005, Leone moved for summary judgment and requested attorney's fees and expenses pursuant to Indiana ' Code Section $4-52-1-1 1 . On June 7, 2005, Appellees designated evidence in opposition to Leone's motion, including affidavits from eight of the eleven Appellees, which alleged that a payphone program sales representative showed them Leone's opinion and the payphone program sales manual and that they relied on those documents in making the decision to invest in the payphone program. See Appellant's App. at 451-72 (affidavits of Earl Haibe, James Bridges, Mabel McGuffey, Ruth Amick, Esear App, and Linda Kees-ling) *1012 2 Also on that date, Leone filed an amended affidavit and brief supporting summary judgment and attorney's fees. On June 20, 2005, Leone filed a reply in which he alleged, among other things, that Appellees' affidavits were "perjurious" and conflicted with deposition testimony given by Appellees and payphone program sales representatives. Id. at 777-78. On July 20, 2005, Leone filed a notice for expenses, fees, and contempt, in which he asserted that Appellees' affidavits were presented in bad faith and that therefore he was entitled to expenses, including attorney's fees, pursuant to Indiana Trial Rule 56(G). On July 22, 2005, the trial court held a hearing on Appellees and Leone's summary judgment motions.

On August 5, 2005, the trial court issued an order granting summary judgment in favor of Leone on the issue of personal jurisdiction and denying Appellees summary judgment motion. The trial court also denied Leone's request for fees, expenses, and contempt. The trial court's order reads in pertinent part:

4. Leone's briefs have caused the Court great difficulty in deciding this Motion. Leone seems more concerned with saying as many negative things as he can say about opposing counsel, rather than focusing on the issues' merits. The problem is further exacerbated by Leone's minimal compliance with Trial Rule 56(C). The Court has had to search his filings to determine what exact issues Leone is raising.

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19. Leone requested that the Court order Plaintiffs to pay his expenses for defending himself in this action. The Court declines to do so for the following reasons.

20. The issue was not a "clear-cut" decision. Trial courts must determine personal jurisdiction issues on a case-by-case basis. They are fact-sensitive determinations. The Court cannot find that Plaintiffs litigated this matter in bad faith or that the claim was frivolous.

21. In the alternative, the Court declines to award fees and expenses and to find Plaintiffs' counsel in contempt due to Leone's continued pattern of uncivil, personal attacks on Plaintiffs' counsel. The Court cannot condone such behavior, which does not respect this Court or fellow counsel. One who wants fees, expenses, and contempt must make this request with "clean hands."

Appellant's App. at 107-08.

On September 6, 2005, Leone filed a motion to supplement summary judgment record in which he offered "newly obtained" deposition transcripts that he described as "conclusively rebutting Plaintiffs argument and perjurious Affidavits that Plaintiffs received and relied on the Training Manual and [Leone's] opinion therein, and conclusively showing Plaintiffs' counsel's bad faith, ete. in suing Leone." Appellant's App. at 854. 3 Also on that date, Leone filed a motion to cor *1013 rect error as to the trial court's denial of his request for fees, expenses, and contempt. On September 12, 2005, the trial court denied those motions. On March 3, 2006, the trial court certified the August 2005 order as a final appealable judgment pursuant to Indiana Trial Rule 56(C).

Discussion and Decision

Initially, we note that Leone's idiosyncratic use of outline form and abbreviations, his fondness for boldface type and capital letters, his convoluted and hyperbolic writing style, and his citations to large swaths of his appellant's appendix without further explanation have needlessly frustrated our review of his appeal. Indeed, many pages of his brief appear to have been written in code, rather than in plain English, and seem calculated to cause the maximum expenditure of time and effort to read and comprehend. 4 It is extremely difficult to decipher Leone's arguments, let alone the relief he seeks. 5 As we stated in Young v. Butts, 685 N.E.2d 147 (Ind.Ct.App.1997),

We demand cogent argument supported with adequate citation to authority because it promotes impartiality in the appellate tribunal. A court which must search the record and make up its own arguments because a party has not adequately presented them runs the risk of becoming an advocate rather than an adjudicator. A brief should not only present the issues to be decided on appeal, but it should be of material assistance to the court in deciding those issues. On review, we will not search the record to find a basis for a party's argument, nor will we search the authorities cited by a party in order to find legal support for its position.

Id. at 151 (emphasis added) (citations omitted). With these precepts in mind, we now address Leone's arguments, insofar as we can discern them and insofar as he has preserved them.

First, we address Leone's assertion that the trial court erred in denying his motions to dismiss. To the extent Leone argues that the denials were based on an improper interpretation of precedents regarding personal jurisdiction, our affirmance of summary judgment in his favor in Keesling v. Winstead renders that argument moot. 6 To the extent Leone alleges that *1014 the denials were based on factual misrepresentations by Appellees' counsel, we address this allegation later in our opinion.

Next, we consider Leone's contention that the trial court erred in denying his motion to supplement summary judgment record with Appellees' deposition transeripts, which supported his claim that Appellees' affidavits were perjurious. As far as we can tell, Leone cites no standard for reviewing this ruling, as required by Indiana Appellate Rule 46(A). See Ind. Appellate Rule 46(A)®8)(b) ("The [appellant's] 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."). It appears that after making an unsupported assertion of error on page 17 of his brief, Leone offers no substantive argument on this issue in the remaining forty-three pages. Accordingly, we find this argument waived. 7 See Watson v. Auto Advisors, Inc., 822 N.E.2d 1017, 1027 (Ind.Ct.App. 2005) ("When parties fail to provide argument and citations, we find their arguments are waived for appellate review."), trams. denied; see also Ind. Appellate Rule 46(A)(8)(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."). Consequently, we need not address Leone's argument regarding the trial court's denial of his notice for expenses and contempt pursuant to Indiana Trial Rule 56(G). See Ind. Trial Rule 56(G) ("Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this *1015 rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of these affidavits caused him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.").

We also find that Leone has waived any claim regarding the trial court's denial of his motion to correct error. He mentions the ruling on page 17 of his brief and again on page 57, with no substantive argument to be found in between.

We likewise conclude that Leone has waived his due process argument regarding the unavailability of attorney's fees for defendants under Indiana's Securities and RICO Acts. "It is axiomatic that an issue cannot be raised for the first time on appeal." Harlan Bakeries, Inc. v. Muncy, 885 N.E.2d 1018, 1040 (Ind.Ct. App.2005). Leone's tirades against Appellees' lawsuit at the trial court level do not even begin to approach a cogently reasoned due process argument. Seq, eg., Appellant's App. at 679 ("Indiana does not assess attorneys fees against the lawyers who knowingly participate in the bloody money sport of shotgunning multiple innocent Defendants with multiple unfounded claims based on multiple falsehoods and half falsehoods."). The same may be said for his harangues on appeal. See, eg., Appellant's Br. at 53 ("It is Indiana sane-tioned economic warfare with a 'tilt'. It could be 'uncivilly' criticized as a form of statutory authorized extortion by racketeers with Bar Numbers, licenses to defraud because there is no ISA/RICO penalty for fraudulent suits.").

This brings us to the centerpiece of Leone's claims, that the trial court erred in denying his request for attorney's fees pursuant to Indiana Code Section 34-52-1-1. "Generally, litigants must pay their own attorney's fees in the absence of a statute, stipulation, or agreement providing otherwise." Buschman v. ADS Corp., 782 N.E.2d 4283, 481 (Ind.Ct.App.2003). Indiana Code Section 34-52-1-1 states in pertinent part:

(b) In any civil action, the court may award attorney's fees as part of the cost to the prevailing party, if the court finds that either party:

(1) brought the action or defense on a claim or defense that is frivolous, unreasonable, or groundless;

(2) continued to litigate the action or defense after the party's claim or defense clearly became frivolous, unreasonable, or groundless; or

(8) litigated the action in bad faith.

"A claim is frivolous if it is established that it was brought for the purpose of an improper motive such as harassment or if legal counsel is unable to make a good faith, rational argument on the merits of the case." Buschman, 782 N.E.2d at 482. "A claim is unreasonable if no reasonable attorney would consider it justified or worthy of litigation under the totality of the circumstances, including the law and facts known at the time the claim is filed." Id. "[Wle have considered a claim 'groundless' only if no facts exist which support a legal claim presented by the losing party." Id.

Leone asserts that the trial court's summary judgment ruling in his favor

showed a good faith and rational argument could NOT be made to support [Plaintiffs' personal jurisdiction] claims under the law, which counsel had a duty to determine, which Leone's [motions to dismiss] made clear. All of that is proven by the Second Amended [complaint] adding intentionally false allegations *1016 about receiving Leone's opinion, and by counsel getting [Plaintiffs] to sign perju-rious April 2005 [summary judgment] Affidavits contradicting their June and July 2004 Deposition Admissions that they never received or relied on Leone's nine page legal opinion buried in the 142 page Sales Agent Training Manual.

Appellant's Br. at 38. We first observe that "an award of attorney's fees is not justified merely because a party loses on the merits"-or, as in this case, on a jurisdictional issue. Buschman, 782 N.E.2d at 482. Second, we have already determined that Leone waived his argument regarding his belated submission of Appellees' deposition transcripts. In other words, the transeripts were not properly before the trial court.

Leone goes on to state that he "raised legal and factual issues given peremptory dismissal. The only bases for denying attorneys fees, ete. were to the effect the Court was unable to find the suit frivolous or in bad faith, but if it was, Leone deserved no remedy because of his loud outery about the rape." Appellant's Br. at 39. Leone's comparison of a civil lawsuit to a rape is patently offensive and crosses far over the line separating vigorous advocacy from inflammatory invective. In Clark v. Clark, 578 N.E.2d 747 (Ind.Ct. App.1991), we stated that "[flor the use of impertinent, intemperate, scandalous, or vituperative language in briefs on appeal impugning or disparaging this court, the trial court, or opposing counsel, we have the plenary power to order a brief stricken from our files and to affirm the trial court without further ado." Id. at 748. In that case, we declined to do so because we did not want to impose "undue punishment" on the appellant "for her counsel's unprofessional conduct." Id. at 749.

Leone, however, is a licensed attorney who has represented himself throughout these proceedings. The trial court patiently endured Leone's nearly indecipherable filings and motions filled with heated rhetoric against "shotgun" lawsuits and Appellees' counsel. In return for this forbearance, the trial court has been rewarded by Leone with a request for admonishment or referral for disciplinary action. As mentioned elsewhere in this opinion, Leone has continued his scorched-earth campaign on appeal. Enough is enough. It is one thing to argue cogently and calmly that Appellees' counsel was less than candid and that the trial court made erroneous decisions. It is quite another to compare Appellees' lawsuit to a rape and to suggest that the trial court is ignorant of the law and deserves to be sanctioned. We therefore strike Leone's argument, such as it is, on the issue of attorney's fees and summarily affirm the trial court. 8

We would be remiss, however, if we did not acknowledge that we are deeply troubled by Appellees' counsel's submission of affidavits that are at least inconsistent with, and often contradicted by, Appellees' deposition testimony regarding their reliance on Leone's opinion letter, although that testimony is not properly a part of the record. 9 We are likewise troubled by Ap- *1017 pelleeg' counsel's inclusion of extra-record deposition testimony in the appendix, despite the signed verification that the documents therein "are accurate copies of parts of the Record on Appeal." 10 Also of concern are Leone's allegations in his motion to correct error that Appellees' counsel "fabricated" jurisdictional facts in their various complaints. See Appellant's App. at 889 ("The Amended Complaint dated August 2002 ... falsely states repeatedly that Defendant Leone by means of his legal opinion 'conducted business in Indiana' as a sales 'agent of ATC/Alpha' as to the payphones and 'made sales' to Plaintiffs or 'assisted sales' to Plaintiffs. By the time of the May 2004 Fourth Amended Complaint the fabricated details actually had expanded to the effect that Leone 'acted as an agent of the issuer and conducted business in Indiana', 'made sales in Indiana', or 'materially aided sales' and that 'all Plaintiffs relied on the legal opinion'.") (citations omitted). The trial court did not find that Appellees' counsel litigated in bad faith, and the record before us is insufficient for us to determine otherwise. That said, we find little encouragement in Appellees' counsel's evasiveness and silence in response to Leone's strident accusations. 11 'We do not have jurisdiction over disciplinary matters, however, and we leave it to the Indiana Disciplinary Commission to determine whether Appellees' counsel committed misconduct.

Affirmed.