Preview:

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. ATTORNEY FOR APPELLANT: DAVID E. BAUM David E. Baum Law Office, P.C. Chesterton, Indiana

FILED
Dec 29 2011, 9:18 am
of the supreme court, court of appeals and tax court

CLERK

IN THE COURT OF APPEALS OF INDIANA
MICHAEL LOVERDE, Appellant-Respondent, vs. THOMAS KUEHL, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

No. 64A03-1107-PO-327

APPEAL FROM THE PORTER SUPERIOR COURT The Honorable Roger V. Bradford, Judge Cause No. 64D01-1105-PO-4512

December 29, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge

Appellant-Respondent Michael Loverde appeals the civil protection order granted against him and in favor of Appellee-Petitioner Thomas Kuehl. Loverde challenges the sufficiency of the evidence to support the trial court's issuance of the civil protection order. We reverse and remand. FACTS AND PROCEDURAL HISTORY Kuehl is married to Gina Kuehl, who is the daughter of Diana Hardison. Loverde is Hardison's live-in boyfriend/fiance. In approximately June of 2010, Gina visited Hardison and Loverde in Illinois. Gina injured herself on their property, prompting her and Kuehl to ask Loverde to submit the claim to his homeowner's insurance company. Loverde declined to do so. Later, after Gina had returned to Indiana, she called Loverde to again ask that he submit a claim. According to Kuehl, Loverde responded by

threatening to kill Kuehl, Gina, and their daughter. Loverde also threatened to kill Kuehl's parents and, according to Kuehl, made multiple calls to Kuehl over a three-week period. Loverde does not dispute that he "went off" on Kuehl for not having insurance, but claims he did not make the alleged threats or call repeatedly over three weeks. Tr. p. 22. In April of 2011, Loverde called Kuehl and threatened him following allegations that Kuehl had been beating a puppy. Loverde also called Gina and left her a message. According to Loverde, his threats were not credible and he did not follow up on them. In May of 2011, according to Kuehl, Hardison sent a letter to Gina's ex-boyfriend telling him Gina's contact information. Hardison disputed that she had done this.

2

According to Loverde, he did send a letter, but it was apparently to Gina's daughter's biological grandmother to inform her that she had a granddaughter. On May 18, 2011, Kuehl filed petitions for ex parte orders of protection against Loverde and Hardison, which the trial court granted. Following the respondents' request for a hearing, the trial court held a hearing on both matters on June 27, 2011. At the conclusion of the hearing, the trial court terminated the order of protection against Hardison, finding that Kuehl had failed to demonstrate domestic or family violence, stalking, or a sex offense. With respect to Loverde, however, the trial court extended the order of protection on grounds of domestic or family violence. In the trial court's view, in spite of the fact that Loverde was not married to Hardison, his relationship to Kuehl, who was Hardison's daughter's husband, was "close enough." Tr. p. 35. The trial court specifically excluded stalking as a viable ground for a protective order, finding that there was no evidence of stalking. This appeal follows. DISCUSSION AND DECISION I. Standard of Review

Loverde challenges the sufficiency of the evidence to support the civil order of protection against him by arguing that the "family" relationship serving as the basis for the order does not exist between him and Kuehl. Initially, we note that Kuehl did not submit an appellee's brief in this case. Where an appellee fails to file a brief on appeal, we need not undertake the burden of developing his argument. Tisdial v. Young, 925 N.E.2d 783, 784 (Ind. Ct. App. 2010). Instead, we will reverse the trial court's judgment if the appellant demonstrates prima facie error. Id. at 784-85. "Prima facie error in this 3

context is defined as, at first sight, on first appearance, or on the face of it." Id. at 785 (quotation omitted). A petitioner for a protective order must prove, by a preponderance of the evidence, at least one of the allegations in his petition. See Tons v. Bley, 815 N.E.2d 508, 511 (Ind. Ct. App. 2004); see Ind. Code

Download Michael Loverde v. Thomas Kuehl.pdf

Indiana Law