Opinion
23A-PO-233
08-28-2023
M.M., Appellant-Respondent, v. J.S., Appellee-Petitioner
APPELLANT PRO SE M.M. Indianapolis, Indiana ATTORNEY FOR APPELLEE Tara L. Cragen Cohen & Malad, LLP 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Marion Superior Court The Honorable Anne M. Flannelly, Magistrate Trial Court Cause No. 49D04-2212-PO-41823
APPELLANT PRO SE M.M. Indianapolis, Indiana
ATTORNEY FOR APPELLEE Tara L. Cragen Cohen & Malad, LLP Indianapolis, Indiana
MEMORANDUM DECISION
WEISSMANN, JUDGE.
[¶1] M.M. sent a torrent of critical, sometimes threatening, emails and text messages to her colleague J.S. after M.M. was suspended from her job for harassing a different colleague. When J.S. learned of more threats and troubling behavior by M.M., he obtained a civil protective order against M.M. barring her contact with him. M.M. appeals that judgment, claiming entry of the protective order was improper because J.S. failed to prove that she harassed him or that she was a credible threat. Finding the evidence sufficient to prove both, we affirm the trial court's judgment.
Facts
[¶2] M.M.'s employer suspended her for sending harassing messages to her direct supervisor. Between her suspension and firing about a week later, M.M. sent about 20 to 30 emails and text messages to her colleagues, some of which were sent throughout the night. J.S., a manager who worked for the company but did not directly supervise M.M., was among the recipients of those communications. In some, M.M. alleged sexual misconduct in the workplace by J.S.-accusations that J.S. denied.
[¶3] After her suspension, but before her firing, M.M. also threatened "to take everyone down if she was going to be terminated." Tr. Vol. II, p. 7. M.M. told other employees that she would call in a bomb threat to a sports venue where their employer provided services. A colleague also shared with J.S. that M.M. earlier had taken photos of herself sitting in J.S.'s empty office with his family's photos in it. Around the time that the photos were taken, J.S. had changed the lock to his office after discovering items were missing.
[¶4] On the date of M.M.'s termination, J.S. petitioned for a protective order against her. After a hearing, the trial court granted the protective order, finding in part:
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 repeated acts of harassment ha[ve] occurred sufficient to justify the issuance of this Order . . .
i. The following relief is necessary to bring about a cessation of the violence or the threat of violence.Appellee's App. Vol. II, p. 7. M.M., who represents herself, appeals that judgment, claiming the evidence does not support it.
In her brief, M.M. seeks oral argument. We deny that request.
Discussion and Decision
[¶5] M.M. contends the trial court erroneously entered the civil protective order because J.S. failed to prove that she harassed him. "Generally, a trial court has discretion to grant protective relief according to the terms of the [Indiana Civil Protection Order Act (CPOA)]." A.N. v. K.G., 10 N.E.3d 1270, 1271 (Ind.Ct.App. 2014). When reviewing whether the trial court abused that discretion, we consider only the evidence of probative value and supporting reasonable inferences that support the judgment. Costello v. Zollman, 51 N.E.3d 362, 367 (Ind.Ct.App. 2016). We neither reweigh the evidence nor judge witness credibility. Id. We will reverse only if the trial court's judgment was clearly erroneous-that is, when a review of the record leaves us firmly convinced that a mistake has been made. N.E. v. L.W., 130 N.E.3d 102, 107 (Ind.Ct.App. 2019). Applying this standard, we conclude M.M. has failed to establish clear error.
I. Overview of the CPOA
[¶6] The CPOA governs civil protective orders. Ind. Code § 34-26-5-1 et seq. We construe the CPOA to promote both "the protection and safety of all victims of harassment in a fair, prompt, and effective manner" and "the prevention of future . . . harassment." Ind. Code § 34-26-5-1(2)-(3).
[¶7] A person who is or has been subjected to harassment may petition for an order of protection against a person "who has committed repeated acts of harassment against the petitioner." Ind. Code § 34-26-5-2(b). "Harassment," in this context, "means conduct directed toward a victim that includes, but is not limited to, repeated or continuing impermissible contact: (1) that would cause a reasonable person to suffer emotional distress; and (2) that actually causes the victim to suffer emotional distress." Ind. Code § 34-6-2-51.5(a). "'Harassment' does not include statutorily or constitutionally protected activity, such as lawful picketing pursuant to labor disputes or lawful employer-related activities pursuant to labor disputes." Ind. Code § 34-6-2-51.5(b).
[¶8] "A finding that . . . harassment has occurred sufficient to justify the issuance of an order under [the CPOA] means that a respondent represents a credible threat to the safety of a petitioner or a member of a petitioner's household." Ind. Code § 34-26-5-9(h). Once the petitioner proves by a preponderance of the evidence harassment by the respondent, "the court shall grant relief ...." Id.
[¶9] M.M. contends J.S. did not meet that standard for two reasons: 1) her communications were intended for people other than J.S.; and 2) she was not a credible threat to J.S.
J.S. requests this Court find M.M. waived her claims on appeal by filing a defective brief and failing to file a proper appendix. Although M.M.'s appellate filings are not technically compliant with the Indiana Rules of Appellate Procedure, we find them sufficient for appellate review of her claims. See Kelly v. Levandoski, 825 N.E.2d 850, 856 (Ind.Ct.App. 2005) (rejecting appellee's request for waiver finding based on defective appellate filings based on court's preference for deciding cases on the merits); see also Indiana Appellate Rule 49(B) ("Any party's failure to include any item in an Appendix shall not waive any issue or argument."). We also reject J.S.'s request for attorney fees under Indiana Appellate Rule 66(E) because we do not find M.M.'s filings to be frivolous or in bad faith.
I. Communications
[¶10] M.M. argues that she did not direct to J.S. the allegedly harassing communications he produced at the protective order hearing. Most of these were emails sent by M.M. to her employer's human resources department in response to emails the department had sent to her. Though J.S. and others were copied on the responses, M.M. argues this is only because the department included J.S. as a recipient of the original correspondence.
[¶11] But M.M. cites no authority suggesting that it is less harassing to copy a person on an emotionally distressing communication than to address the communication directly to that person. The CPOA requires "repeated acts of harassment against the petitioner." Ind. Code § 34-26-5-2(b). Its provisions do not exempt harassing communications from its scope simply because the respondent only copied the petitioner on the communication. M.M. concedes, in fact, that some communications sent to the human resources department and copied to J.S. were upsetting to J.S. because they included M.M.'s accusations of alleged sexual misconduct by J.S. By directing such sensitive communications to others who work with J.S., M.M. reasonably increased, rather than negated, their harassing nature.
M.M. does not claim that her actions in sending the communications were "statutorily or constitutionally protected activity" that did not constitute harassment under the CPOA. See Ind. Code § 34-6-2-51.5(b).
[¶12] M.M. also contends the evidence was inadequate because J.S. failed to corroborate his receipt of some of the harassing communications documented only through his testimony. But she is merely asking this Court to reweigh the evidence. See S.D. v. G.D., 211 N.E.3d 494, 498 (Ind. 2003) (noting that due to the ability of trial courts to observe the parties, trial courts are "far better" than appellate courts at weighing the evidence, particularly in protective order cases). The trial court properly determined that J.S. proved by a preponderance of the evidence that M.M. committed repeated acts of harassment by sending many emails and text messages to him after her suspension.
II. Credible Threat
[¶13] M.M. also argues that the evidence did not show she was a credible threat to J.S. Before a civil protective order may be granted, the CPOA requires proof that the respondent represents a "credible threat to the safety of a petitioner or a member of the petitioner's household." S.H. v. D.W., 139 N.E.3d 214, 219 (Ind. 2020) (quoting what is now Ind. Code § 34-26-5-9(h)). "Thus, the respondent must pose a threat to a protected person's safety when the petitioner seeks relief." S.H., 139 N.E.3d at 219.
[¶14] The CPOA "requires that the threat posed by the respondent be viewed objectively." Id. at 220. "Not only must there be a present threat, but the threat must be credible-meaning plausible or believable." Id. "Thus, the petitioner must prove, by a preponderance of the evidence, that there are reasonable grounds to believe that the respondent presently intends to harm the petitioner or the petitioner's family." Id.
[¶15] J.S. met that burden through his testimony, which revealed:
• M.M. stated that she would make a bomb threat to the sporting venue where J.S.'s office was located.
• M.M. stated that she would take everyone down if she were fired.
• Without J.S.'s knowledge, M.M. photographed herself in J.S.'s empty office with his family photos. Items disappeared from J.S.'s office about the same time.
• M.M. had admitted to having a computer program that makes her own communications appear to have originated from someone else.
• M.M. had met J.S.'s family.
• M.M.'s actions left J.S. uncomfortable.
• J.S. had been advised by his employer to seek a protective order based on what the employer knew of M.M.'s actions.
[¶16] Although M.M. disputed much of J.S.'s testimony, the trial court explicitly found J.S. more credible than M.M. His testimony established by a preponderance of the evidence that M.M. was a credible threat to J.S.
[¶17] As M.M. has not established the trial court's entry of the protective order was clearly erroneous, we affirm the trial court's judgment.
Riley, J., and Bradford, J., concur.