MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                      Jan 29 2016, 5:40 am

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE
Anthony Fisher
Pendleton, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony Fisher,                                          January 29, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         56A03-1508-SC-1142
        v.                                               Appeal from the Newton County
                                                         Circuit Court
Thomas VanVleet and                                      The Honorable Jeryl F. Leach,
Dustin Gary,                                             Judge
                                                         Trial Court Cause No.
Appellees-Defendants
                                                         56C01-1501-SC-6



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 56A03-1508-SC-1142 | January 29, 2016        Page 1 of 8
                                          Case Summary
[1]   Pro se Appellant-Plaintiff Anthony Fisher (“Fisher”) appeals a small claims

      judgment in favor of Appellees-Defendants Thomas VanVleet and Dustin Gary

      upon Fisher’s replevin claim. We affirm.



                                                    Issues
[2]   Fisher presents two issues for review, which we restate as the following issues:

              I.       Whether the claim was improperly dismissed because
                       Fisher’s Third Request for Extension of Time was deemed
                       to be untimely filed; and


              II.      Whether he was entitled to a third continuance of the
                       small claims proceedings.


                            Facts and Procedural History
[3]   In January of 2009, Fisher and James Daher (“Daher”) were arrested in St.

      Joseph County, Indiana, after having escaped imprisonment in Newton

      County, Indiana. Incident to the arrests, Newton County Sheriff’s Sergeant

      Dustin Gary (“Sergeant Gary”) recovered two cell phones and $7,000.00 in

      cash. On January 26, 2015, Fisher filed a small claim against Sergeant Gary

      and Sheriff Thomas VanVleet for replevin of $6,000.00, the limit of small claims

      jurisdiction.


[4]   On February 9, 2015, Fisher – who remained incarcerated – filed a motion in

      the small claims court seeking approval for a trial by affidavit or electronic or
      Court of Appeals of Indiana | Memorandum Decision 56A03-1508-SC-1142 | January 29, 2016   Page 2 of 8
      telephonic means. The small claims court ordered that the matter proceed by

      affidavit. Fisher was ordered to submit evidence to the small claims court by

      February 24, 2015, but was granted leave to file additional materials responsive

      to the defendants’ submissions, up until March 10, 2015.


[5]   On February 23, 2015, Fisher filed his “submission of evidence” in the small

      claims court. (App. at 2.) On February 26, 2015, the defendants filed a joint

      submission of evidence. A “summary” signed by Sergeant Gary stated that a

      check for $7,000.00 had been issued to Daher. (App. at 20.)


[6]   On March 9, 2015, Fisher filed a motion for a continuance. The request was

      granted, with Fisher allowed an additional sixty days to respond to the

      defendants’ submission. On March 13, 2015, Fisher filed a motion seeking a

      trial transcript of a “related case.” (App. at 2.) According to Fisher, a

      transcript of Daher’s criminal trial would reveal that the money belonged to

      Fisher. On April 6, 2015, Fisher requested this transcript at public expense.


[7]   On April 10, 2015, the small claims court denied Fisher’s claim and purportedly

      “dismissed” the case. (App. at 2.) Fisher filed a motion to reconsider, pointing

      out that the small claims court had not ruled upon his motion for a transcript.

      In response, the small claims court set aside its judgment. On April 27, 2015,

      the small claims court denied Fisher’s request for the Daher transcript,1 but




      1
          Fisher was directed to make his transcript request in the Newton County Superior Court.


      Court of Appeals of Indiana | Memorandum Decision 56A03-1508-SC-1142 | January 29, 2016       Page 3 of 8
       granted Fisher time up to and including May 11, 2015 to respond to the

       defendants’ submission of evidence.


[8]    On May 11, 2015, Fisher filed an additional request for an extension of time to

       submit his proof by affidavit. On May 13, 2015, the small claims court granted

       Fisher “an additional sixty days.” (App. at 3.) On May 21, 2015, Fisher filed a

       motion in the Newton County Superior Court seeking the Daher transcript.


[9]    On July 13, 2015, Fisher filed his third motion for an extension of time to

       submit his proof by affidavit. He advised that he was “in the process of

       purchasing the transcript from the Indiana Court of Appeals.” (App. at 29.)

       On the same day, the small claims court entered an order providing:

               The deadlines for pleadings in this case have passed. The Court
               finds that the Plaintiff has failed to carry his burden of proof.
               The Defendants acted appropriately pursuant to a court order
               regarding the funds at issue in this case and have no liability
               under this case.


               Plaintiff[’s] claim is denied and dismissed this 13th day of July,
               2015.


       (App. at 5.) This appeal ensued.



                                  Discussion and Decision
                                           Standard of Review
[10]   Indiana Small Claims Rule 8(A) provides:


       Court of Appeals of Indiana | Memorandum Decision 56A03-1508-SC-1142 | January 29, 2016   Page 4 of 8
                The trial shall be informal, with the sole objective of dispensing
                speedy justice between the parties according to the rules of
                substantive law, and shall not be bound by the statutory
                provisions or rules of practice, procedure, pleadings or evidence
                except provisions relating to privileged communications and
                offers of compromise.


[11]   Accordingly, appellate review of a small claims decision is particularly

       deferential. Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008). Generally, we

       review factual determinations for clear error and review questions of law de

       novo. Id. However, where a small claims case turns solely on documentary

       evidence, we review de novo, just as we review summary judgment rulings and

       other paper records. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind.

       2006).


[12]   We note that the defendant officers have not filed an appellee’s brief. When the

       appellee fails to submit a brief, we need not undertake the appellee’s burden of

       responding to arguments that are advanced for reversal by the appellant.

       Hamiter v. Torrence, 717 N.E.2d 1249, 1252 (Ind. Ct. App. 1999). Rather, we

       may reverse the trial court if the appellant makes a prima facie case of error. Id.

       “Prima facie” is defined as “at first sight, on first appearance, or on the face of

       it.” Id. Still, we are obligated to correctly apply the law to the facts in the

       record in order to determine whether reversal is required. Id.


                                           Timeliness of Filing
[13]   Fisher asserts that his third motion for an extension of time was timely filed and

       thus challenges the small claims court’s statement: “The deadlines for
       Court of Appeals of Indiana | Memorandum Decision 56A03-1508-SC-1142 | January 29, 2016   Page 5 of 8
       pleadings in this case have passed.” (App. at 5.) The timeliness argument

       appears to be based upon the premise that the small claims court dismissed the

       claim for failure to comply with the deadline for submission of responsive

       materials.


[14]   However, although the small claims court used the word “dismissed” in

       conjunction with the word “denied,” the substance of the order indicates that

       the small claims court adjudicated the claim on its merits. (App. at 5.) Fisher

       filed a motion rather than an evidentiary submission addressed by the prior

       continuance order; the small claims court did not deem the motion an untimely

       pleading; and the matter was not dismissed.


                                Third Motion for a Continuance
[15]   Fisher asserts that he has a constitutional right to bring a civil action and that

       the denial of his third motion for a continuance denied him due process. Fisher

       correctly observes that a prisoner has a constitutional right to bring a civil

       action, pursuant to Article 1, § 12 of the Indiana Constitution: “[a]ll courts

       shall be open; and every person, for injury done to him in his person, property

       or reputation, shall have remedy by due course of law.”


[16]   Implicit in the right to bring a civil claim is the right to present the claim in

       court. Zimmerman v. Hanks, 766 N.E.2d 752, 757-58 (Ind. Ct. App. 2002).

       Avenues available include such procedures as submission by documentary

       evidence, trial by telephonic conference, representation by counsel, and

       postponement until release from incarceration. Hill v. Duckworth, 679 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 56A03-1508-SC-1142 | January 29, 2016   Page 6 of 8
       938, 940 n.1 (Ind. Ct. App. 1997). Here, Fisher was afforded the opportunity to

       submit his claim by affidavit.


[17]   The crux of Fisher’s argument is that he was entitled to a third continuance as a

       matter of due process. He suggests that a small claims court must grant

       repetitive motions for continuances so long as the small claims litigant is “duly

       diligent” in pursuing his proof. (Appellant’s Br. at 5.) This assertion is not in

       accordance with the Indiana Small Claims Rules.


[18]   Indiana Small Claims Rule 9 governs continuances, and provides that either

       party may be granted a continuance for good cause shown. Moreover,

       “[e]xcept in unusual circumstances no party shall be allowed more than one (1)

       continuance in any case, and all continuances must have the specific approval

       of the court.” S.C.R. 9(A). We review the small claims court’s ruling on a

       motion for a continuance for an abuse of discretion. Multivest Props. V. Hughes,

       671 N.E.2d 199, 201 (Ind. Ct. App. 1996).


[19]   Here, the small claims court had granted Fisher two continuances. By the time

       of Fisher’s third motion, he did not represent that he had obtained relevant

       materials and needed time to review and present them. Rather, he asserted that

       he was attempting to procure a transcript through an appellate court. Given the

       history of multiple continuances and the posture of the case, we cannot say that

       the trial court abused its discretion.




       Court of Appeals of Indiana | Memorandum Decision 56A03-1508-SC-1142 | January 29, 2016   Page 7 of 8
                                               Conclusion
[20]   Fisher has demonstrated no reversible error in the small claims court decision.


[21]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 56A03-1508-SC-1142 | January 29, 2016   Page 8 of 8
