Terpstra v. Farmers and Merchants Bank, No. 3-1284A340PS

Docket NºNo. 3-1284A340PS
Citation483 N.E.2d 749
Case DateSeptember 30, 1985
CourtCourt of Appeals of Indiana

Page 749

483 N.E.2d 749
Peter W. TERPSTRA, Sr., Appellant,
v.
FARMERS AND MERCHANTS BANK, Rochester, Indiana, Howard R.
Wertzberger, Kathleen Wertzberger, Glenn A. Skersick,
Marjorie Skersick, William J. Gordon, Joan C. Gordon,
Virginia Lorene Rauschke, Charles H. Rauschke, R. Wayne
Smith, Virginia V. Smith, H. Robert Bradley, Elizabeth Ann
Bradley, J. Frederick Hoffman, Patricia B. Hoffman, Appellees.
No. 3-1284A340PS.
Court of Appeals of Indiana,
Third District.
Sept. 30, 1985.

Page 751

Peter W. Terpstra, Sr., pro se.

E. Spencer Walton, Jr., Robert J. Palmer, South Bend, for Farmers & Merchants Bank, et al.

STATON, Presiding Judge.

Peter W. Terpstra, Sr. (Terpstra) appeals pro se from an adverse summary judgment and a declaratory judgment voiding numerous common law liens that he had filed against certain Fulton County real property owners (Owners) and the Farmers and Merchants Bank (Bank). In our review of this appeal we must address four issues, which have been restated. They are as follows:

(1) Whether Terpstra's failure to fully comply with certain Appellate Rules is fatal to this appeal?

(2) Whether Terpstra's common law liens are valid?

(3) Whether the trial court in equity had jurisdiction in this matter that Terpstra insists is a matter at law?

(4) Whether Terpstra was unconstitutionally denied assistance of counsel of this choice?

Affirmed.

I.

Noncompliance

The present controversy stems from a lawsuit filed by Terpstra and his son on April 17, 1984, in the United States District Court, Northern District of Indiana, Civil No. S84-0217. There Terpstra alleged claims of breach of contract, fraud, usury, and conspiracy against the Owners. That same day Terpstra filed with the Fulton County Recorder, Anne Clay, his "Claim of Common Law Writ of Attachment with Memorandum of Law." He also filed instruments numbered 3863 through 3879 which purported to be common law liens on the real estate belonging to the Owners. 1 Owners and the Bank brought suit against Terpstra, who appeared pro se, and they received a favorable summary judgment. The trial court also declared instruments 3863 through 3879 to be null and void.

At the onset we note our belief that the common denominator for all of the issues before us is Terpstra's failure to grasp the legal principles germane to this lawsuit. Terpstra's brief and reply brief reflect the careful typing effort put into them, but lacking are sound legal arguments supported by persuasive authority. A layman who merely extracts a sentence or two from a case containing language believed to be relevant risks the very grave danger of misstating the law or reaching inappropriate legal conclusions. A sincere subjective belief by a party as to the correctness of his argument is not enough to ensure success when, as here, the arguments are broad, abstract and contrary to current law. Terpstra's lack of trained legal counsel surely contributed to the substantive and procedural flaws evident in his briefs. 2

Page 752

The Owners and the Bank have directed our attention to the obvious, that Terpstra's brief is not in compliance with various Appellate Rules. Specifically, Terpstra's brief did not contain a verbatim statement of the trial court's judgment as required by Ind.Rules of Procedure, Appellate Rule 8.3(A)(4). 3 Nor did Terpstra's brief comply with AP. 8.3(A)(5) 4 which requires a statement of facts relevant to the issues presented for review. Owners and the Bank also contend that Terpstra's brief failed to contain a cogent argument as required under AP. 8.3(A)(7). 5

Terpstra's counter-argument, in its entirety, is as follows:

"ISSUE I

DEFENDANT TERPSTRA SHOULD NOT BE DENIED HIS APPEAL DUE TO A FAILURE TO COMPLY WITH THE APPELLATE RULES.

Defendant Terpstra has made a good faith effort to comply with all the rules concerning the preparation of this appeal.

As there are no jurisdictional defects and Defendant Terpstra is appealing violations of his constitutional rights, he should not be denied his Appeal for mere technical defects.

The denial of a man's rights supercedes technicalities especially where efforts were made to comply. The U.S. Supreme Court stated in Miranda vs. Arizona :

'Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them.' (Emphasis added). Miranda vs. Arizona. 384 US 436, 491 [86 S.Ct. 1602, 1636, 16 L.Ed.2d 694 (1966) ].

WHEREFORE, Defendant Terpstra respectfully requests this court not to deny his appeal."

(Appellant's Reply Brief, p. 2).

We will now, in turn, address AP. 8.3(4), (5) and (7) as they pertain to Terpstra's briefs.

A.

Omitted Statement

When parties commit flagrant violations of the Rules of Appellate Procedure or fail to at least make good faith efforts to substantially comply with the rules, an appellate court will dismiss an appeal or waive issues. Sartain v. Blunck (1983), Ind.App., 453 N.E.2d 324, 325; Vicarro v. City of Fort Wayne (1983), Ind.App., 449 N.E.2d 1161, 1162; Moore v. State (1982), Ind.App., 441 N.E.2d 220, 221, reh. den. Terpstra's failure to include a verbatim statement of the trial court's judgment in his appellate brief is a technical violation of AP. 8.3(A)(4), however, affirmance of the

Page 753

trial court's decision based solely on this omission is not mandatory. On this point, Chief Judge Robertson has written:

"We recognize that, for proper judicial review of certain case, adherence to the commands of AP. 8.3(A)(4) is highly important and approaches necessity; however, in our opinion, the omission in this case, though by no means insignificant, does not present such compelling circumstances. With respect to the facts of the present case, the relief granted, summary judgment, was not complicated and the judgment of the trial court was essentially implicit in the mere fact of the appeal. See Suess v. Vogelgesang, [ (1972) ] supra [151 Ind.App. 631, 281 N.E.2d 536]; Smith v. Chesapeake and Ohio Railroad Company (1974), Ind.App. , 311 N.E.2d 462."

Randolph v. Wolff (1978), 176 Ind.App. 94, 95-96, 374 N.E.2d 533, 534.

In the present case, Terpstra's omission is a more serious violation than that in Randolph. Here, accompanying the trial court's decision, there was a lengthy memorandum written by the judge explaining his rationale. This omitted portion of Terpstra's brief is critical to our review of the matter. We again note that we have the discretionary power to affirm the trial court for a violation of AP. 8.3(A)(4), Morris v. State (1982), Ind.App., 433 N.E.2d 74, 77, but we decline to do so here in order to reach the merits of Terpstra's claim. See Pinkler v. State (1977), 266 Ind. 467, 472, 364 N.E.2d 126, 128-29 (right to invoke sanction of this rule belongs to reviewing court for whose benefit the rule was intended).

B.

Inadequate Statement of Facts

We conclude that Terpstra's brief was also violative of AP. 8.3(A)(5). The entire text of Terpstra's Statement of Facts contained in his brief is as follows:

"STATEMENT OF THE FACTS

Defendant had at all times acted in propria persona and claimed all of his unalienable God-given rights under the United States Constitution, The Indiana Constitution and the common law. (Tr. pp. 7, 37, 48, 73-74).

Defendant had at all times challenged jurisdiction of a court sitting in equity over this common law matter, (Tr. pp. 7, 10, 16, 19, 22, 37, 48).

Plaintiffs at all times had a remedy at law.

Defendant was denied the assistance of counsel of his choice for his defense. (Tr. p. 73).

The case was decided upon the Plaintiffs' Motion For Summary Judgment. (Tr. pp. 25-26)."

(Appellant's Brief, p. 5).

The above quoted portion of Terpstra's brief represents subminimal compliance with the rule. The statement of facts in an appellate brief is to a narrative statement supported by references to the record which are relevant to the issues discussed. Miller v. State (1983), Ind.App., 449 N.E.2d 1119, 1120; State v. Fair (1981), Ind.App., 423 N.E.2d 738, 739. In the instant case, Terpstra has merely strung together disjointed statements which were argumentative rather than factual. Moore v. State (1981), Ind.App., 426 N.E.2d 86, 89-90 (statement of facts should be informative not persuasive). Terpstra's brief fails to pass muster under the requirement that each appellant's brief be prepared so that a judge, considering the brief alone and independently from the record, can intelligently consider each question presented. Anderson v. Indiana State Employees' Appeals Comm'n. (1977), 172 Ind.App. 529, 533, 360 N.E.2d 1040, 1043, trans. den. Nonetheless, we have chosen to reach the merits of the instant case despite the failure of Terpstra's brief to comply with this rule.

C.

Failure to Present Cogent Argument

In essence, the alleged violation of AP. 8.3(A)(7) by the Owners and the Bank is based on the unpersuasive authorities

Page 754

Terpstra offered to support his arguments. We note that it is well settled that where appellants fail to cite any authority in support of their arguments, the issues are waived. Hunt v. State (1983), Ind., 455 N.E.2d 307, 316; Courtesy Enterprises, Inc. v. Richards Labs (1983), Ind.App., 457 N.E.2d 572, 580. That is not, however, the case here. Although the argument portion of the brief leaves much to be desired, under a liberal construction of the rules, it cannot be said that points and authorities were not discussed. Eves v. Ford Motor Co. (1972), 152 Ind.App. 34, 38, 281 N.E.2d 826, 828, trans. den. Terpstra's brief is peppered with citations to the United States Constitution, Supreme Court cases, Indiana Statutes, one Indiana case, a 1935 Indiana Attorney General Opinion, and a law encyclopedia. Terpstra has provided us with authority in support of his arguments, however, in the context in which they were used, his authorities were not legally persuasive. Since we have decided to proceed to the merits of this appeal, we will discuss these...

To continue reading

Request your trial
55 practice notes
  • Haimbaugh Landscaping, Inc. v. Jegen, No. 49A02-9407-CV-452
    • United States
    • Indiana Court of Appeals of Indiana
    • June 28, 1995
    ...discretion to reach the merits when violations are comparatively minor. Terpstra v. Farmers and Merchants Bank (1985) 3d Dist. Ind.App., 483 N.E.2d 749, trans. denied; Viccaro v. City of Ft. Wayne (1983) 4th Dist. Ind.App., 449 N.E.2d 1161, 1162 n. 1. Here, Haimbaugh has not committed a fla......
  • Community Care Centers, Inc. v. FSSA, No. 30A01-9702-CV-62.
    • United States
    • Indiana Court of Appeals of Indiana
    • September 22, 1999
    ...Martin Chevrolet Sales, Inc. v. Dover (1986) IND.APP., 501 N.E.2d 1122, 1130; Terpstra v. Farmers and Merchants Bank (1985) IND.APP., 483 N.E.2d 749, 753-54, trans. denied. Although the failure to comply with the appellate rules does not necessarily result in waiver of an issue, it is appro......
  • Gerald M. v. Dep't of Child Safety, No. 2 CA-JV 2015-0130
    • United States
    • Court of Appeals of Arizona
    • May 4, 2016
    ...inappropriate, too poorly developed or improperly expressed to be understood."), quoting Terpstra v. Farmers andPage 22 Merchants Bank, 483 N.E.2d 749, 754 (Ind. Ct. App. 1985). The majority's advocating for Gerald is inappropriate.¶53 Furthermore, § 36-2813(D) is a red herring. It states: ......
  • Murray v. City of Lawrenceburg, No. 15A04-0803-CV-122.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 19, 2009
    ...v. Crawford, 76 Ind.App. 282, 132 N.E. 300, 302 (1921); Johnson, 106 Ind. 89, 5 N.E. at 734; see also Terpstra v. Farmers & Merch. Bank, 483 N.E.2d 749, 757 (Ind. Ct.App.1985) (noting that quiet title actions are a statutory as well as an equitable remedy), trans. denied. Even though an act......
  • Request a trial to view additional results
55 cases
  • Haimbaugh Landscaping, Inc. v. Jegen, No. 49A02-9407-CV-452
    • United States
    • Indiana Court of Appeals of Indiana
    • June 28, 1995
    ...discretion to reach the merits when violations are comparatively minor. Terpstra v. Farmers and Merchants Bank (1985) 3d Dist. Ind.App., 483 N.E.2d 749, trans. denied; Viccaro v. City of Ft. Wayne (1983) 4th Dist. Ind.App., 449 N.E.2d 1161, 1162 n. 1. Here, Haimbaugh has not committed a fla......
  • Community Care Centers, Inc. v. FSSA, No. 30A01-9702-CV-62.
    • United States
    • Indiana Court of Appeals of Indiana
    • September 22, 1999
    ...Martin Chevrolet Sales, Inc. v. Dover (1986) IND.APP., 501 N.E.2d 1122, 1130; Terpstra v. Farmers and Merchants Bank (1985) IND.APP., 483 N.E.2d 749, 753-54, trans. denied. Although the failure to comply with the appellate rules does not necessarily result in waiver of an issue, it is appro......
  • Gerald M. v. Dep't of Child Safety, No. 2 CA-JV 2015-0130
    • United States
    • Court of Appeals of Arizona
    • May 4, 2016
    ...inappropriate, too poorly developed or improperly expressed to be understood."), quoting Terpstra v. Farmers andPage 22 Merchants Bank, 483 N.E.2d 749, 754 (Ind. Ct. App. 1985). The majority's advocating for Gerald is inappropriate.¶53 Furthermore, § 36-2813(D) is a red herring. It states: ......
  • Murray v. City of Lawrenceburg, No. 15A04-0803-CV-122.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 19, 2009
    ...v. Crawford, 76 Ind.App. 282, 132 N.E. 300, 302 (1921); Johnson, 106 Ind. 89, 5 N.E. at 734; see also Terpstra v. Farmers & Merch. Bank, 483 N.E.2d 749, 757 (Ind. Ct.App.1985) (noting that quiet title actions are a statutory as well as an equitable remedy), trans. denied. Even though an act......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT