                                                                            FILED
                                                                      Oct 13 2017, 10:10 am

                                                                            CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Ann Ginda                                                  Thomas J. Herr
Indiana Legal Services, Inc.                               Herr & Phillips, LLC
Lafayette, Indiana                                         Lafayette, Indiana

Cynthia Smith
Law Office of Cynthia P. Smith
Lafayette, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Dyamond Harris,                                            October 13, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           79A02-1703-SC-638
        v.                                                 Appeal from the Tippecanoe
                                                           Superior Court
Lafayette LIHTC, LP,                                       The Honorable Laura W. Zeman,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           79D04-1702-SC-801



Crone, Judge.




Court of Appeals of Indiana | Opinion 79A02-1703-SC-638| October 13, 2017                      Page 1 of 15
                                               Case Summary
[1]   Dyamond Harris appeals the trial court’s judgment and writ of possession in

      favor of Lafayette LIHTC, LP, on its claim against Harris for unpaid rent.

      Harris contends that the trial court committed clear error by improperly shifting

      the burden of proof and violated her due process right to an impartial decision

      maker. We agree on both counts and therefore reverse.


                                   Facts and Procedural History
[2]   On January 27, 2016, Harris entered into a lease with a landlord identified as

      “Claystone at the Crossing” for a housing unit, number 22-0600, subsidized by

      the Department of Housing and Urban Development (“HUD”). Appellant’s

      App. Vol. 2 at 9.1 The lease was signed on behalf of Claystone by Mary Jo

      Farr. Id. at 16. The term of the lease was from January 27, 2016, to December

      31, 2016, after which it would continue for successive terms of one month

      unless automatically terminated as permitted by paragraph 23. Id. Pursuant to

      the lease, Harris agreed to pay rent of $45.00, due on the first day of the month.

      Id. The lease also provided, “[Harris] has deposited $176.00 with [Claystone],”

      which agreed to “hold this security deposit” for the period that Harris occupies

      the unit. Id. at 11. Paragraph 23 of the lease governed termination of tenancy

      and provided, “Any termination of this [lease] by [Claystone] must be carried

      out in accordance with HUD regulations, State and local law, and the terms of



      1
       Lafayette alleges that Harris signed the lease on August 11, 2016. Appellee’s Br. at 7. However, that date is
      when Harris signed a document titled “House Rules.” Appellant’s App. Vol. 2 at 29.

      Court of Appeals of Indiana | Opinion 79A02-1703-SC-638| October 13, 2017                        Page 2 of 15
      this [lease].” Id. at 14. Pursuant to Paragraph 23, Claystone agreed to give

      Harris written notice and the grounds for the proposed termination and advise

      Harris “that [she] has 10 days within which to discuss the proposed termination

      of tenancy with [Claystone]” and “If [Harris] requests the meeting, [Claystone]

      agrees to discuss the proposed termination with [Harris].” Id. at 15.


[3]   On February 28, 2017, Lafayette, doing business as Romney Meadows, filed a

      notice of claim in the small claims court that alleged as follows:2


              On or about the date of January 27, 2016 [Lafayette] rented or
              leased to [Harris] the property located at 600 Northchester Lane,
              Unit 22-0600, Lafayette, in Tippecanoe County, Indiana for the
              term of one year and extended on a month to month basis.
              [Harris] agreed to pay rent in advance on the 1st day of each
              month. Rent is now past due in the amount of $38.00 more or
              less.


      Id. at 8. Lafayette demanded judgment for $38.00 past due rent, pro rata rent

      through the date of possession, possession of the real estate, prejudgment

      interest, and court costs of $121.00. Id. The notice ordered Harris to appear in

      court on March 14, 2017. Harris received service of Lafayette’s claim on

      March 3, 2017. Id. at 3.




      2
       Although Lafayette does not describe its connection to Claystone in its brief, a document titled “House
      Rules” signed by Harris on August 11, 2016, states that Lafayette was doing business as Claystone.
      Appellant’s App. at 20, 29.

      Court of Appeals of Indiana | Opinion 79A02-1703-SC-638| October 13, 2017                       Page 3 of 15
[4]   At the March 14, 2017, hearing Lafayette appeared by counsel Thomas Herr

      and two representatives referred to in the transcript as Ms. Horn and Ms.

      Fleming. Harris appeared pro se. The trial court did not swear anyone in. The

      trial court began the hearing by informing Harris that Lafayette claimed that

      she had not paid her February 2017 rent and asking her if she had paid it.

      Harris responded that when she first moved in, she had provided the former

      landlord with two money orders for $45.00 each; that money was supposed to

      be credited to her account, and Lafayette was supposed to use it for her rent. In

      support, she attempted to show the trial court two handwritten receipts dated

      January 28, 2016. Id. at 35; Tr. Vol. 2 at 4. Each receipt acknowledged a

      money order of $45.00 for rent for “Building 22-600” from “Claystone at the

      Crossing” and were purportedly signed by “Mary Jo Farr.” Appellant’s App.

      Vol. 2 at 35. Although the receipts had Harris’s unit number, they did not have

      her name written on them. The trial court asked Lafayette what it knew about

      Harris’s explanation. Ms. Horn claimed that they knew nothing about it, and

      Ms. Fleming said that they “just saw [the] receipts,” and “[Harris] just sprung

      this on us today.” Tr. Vol. 2 at 4. Harris asserted that she had told them about

      the receipts the week before. Id.


[5]   Harris informed the trial court that she had driven to Chicago to get her

      “paperwork,” explaining, “This is my first time having my own apartment on

      my own[,] so my parents help me a lot[, and] keep my important papers.” Id. at

      5. The trial court stated, “You’re an adult. … Mom and dad are out of the

      picture now. You take care of yourself. Okay, now, who is paying your rent?


      Court of Appeals of Indiana | Opinion 79A02-1703-SC-638| October 13, 2017   Page 4 of 15
…. Thirty-eight dollars a month in rent?” Id. at 5-6. Harris replied, “Me.” Id.

at 6. The trial court responded, “No, no, this apartment does not cost them

thirty-eight dollars. Who else is paying your rent? Somebody is paying rent.

Me as a taxpayer[? I]s it Section 8? What is it?” Id. Ms. Fleming advised the

trial court that Harris’s housing was Section 8. The trial court then stated,

“Section 8, okay so what is it about you that requires Section 8 housing such

that you can’t keep track of thirty-eight dollars?” Id. Harris explained that

when she initially moved into the housing unit, there was another “landlord”

handling her case who no longer worked there and that Harris had given that

landlord the money orders and told her to keep the money in Harris’s account

until she had to pay rent one day. Id. Ms. Horn stated, “[W]e don’t actually do

paper receipts, it’s against our company policy.” Id. at 6-7. In apparent

reference to the receipts, the trial court stated, “I mean I can buy this at

Walgreens.” Id. at 7. Harris asserted that when she first moved in “everything

was done by paper” by “Clay Stone” and that “Mary Jo” handled her case, but

Mary Jo did not work there anymore. Id. The trial court then said, “Okay, so

if they say you owe thirty-eight dollars for February, just pay them the thirty-

eight to get it done.” Id. Harris asserted that she was “trying to explain” that

the money orders were supposed to be credited to her account. Id. The trial

court asked Harris why the 2016 receipts would apply to rent in 2017 rather

than to rent in January or February 2016. Id. Harris clarified that she had paid

the two money orders for January and February 2016 rent, but it later turned

out that she did not owe rent because she was not working during those

months. Id. at 8-9. She said that she should have a credit of $90.00 in her
Court of Appeals of Indiana | Opinion 79A02-1703-SC-638| October 13, 2017      Page 5 of 15
      account and she had two receipts, but Lafayette had a credit of only $45.00.

      The trial court told Harris, “Okay, those receipts are basically worthless, okay.”

      Id. at 10.


[6]   The trial court asked the Lafayette representatives whether Harris owed rent for

      January or February 2016. Id. at 11. Ms. Horn replied that “Harris owed …

      fifty-nine dollars. They put a charge on here from January 27 of [2016] to

      2/29/2016.” Id. The trial court observed that Harris had made a payment of

      $45.00 on February 3, 2016. Id. The trial court again asked the Lafayette

      representatives whether Harris owed rent for January and February 2016. Id. at

      12. Ms. Horn said that Harris “still owed rent for Feb, January.” Id. Harris

      interjected, “[T]hen they came back and fixed it. … I never worked in January

      or February. If you don’t work, you don’t pay rent and [there is] paperwork

      saying that I wasn’t working in January or February.” Id. at 12. The trial court

      responded, “Which is one of the crazy things about our country now. You

      have people who don’t work and free apartments[,] and the rest of us have to

      work to pay for it. That’s one of the problems in our country.” Id. The trial

      court then repeatedly asked Harris why she did not just pay the $38.00 as a

      “practical matter … just to get this over with?” Id. at 12-13.


[7]   The trial court and the parties continued to discuss whether Harris owed rent

      for January and February of 2016. Finally, the trial court told Harris, “I have

      nothing to document that you were not supposed to pay [rent] in January and

      February of last year.” Id. at 15. Harris replied, “They got my, they got my

      files[,] like that’s what I’m saying[,] they don’t give me my files. They have my

      Court of Appeals of Indiana | Opinion 79A02-1703-SC-638| October 13, 2017   Page 6 of 15
      big folder with everything.” Id. Harris also told the trial court, “I called them

      on Friday and told them I was going to bring my receipts in. …. She said just

      bring them to court because I’m going to have to go to court regardless.” Id. at

      17. The trial court then said, “Okay, how do we resolve this people? I have

      nothing from you that proves that she owed rent and I have nothing that proves

      you paid rent.” Id. Harris insisted that she did not have to pay rent in January

      or February of 2016 and asked for a continuance so that she could obtain the

      paperwork verifying that she did not have to pay rent in January or February of

      2016. The trial court decided to continue the hearing to March 16, 2017.


[8]   On that date, Lafayette appeared by counsel and Ms. Horn and Ms. Fleming.

      Harris appeared pro se. The trial court asked Harris if she had the papers “to

      show that, that you paid rent that you did not need to pay in January and

      February.” Id. at 21. Harris replied, “No, because they won’t give me my

      papers in my file. I asked for my papers …” Id. Harris had some documents

      that she attempted to show the trial court, but the trial court said, “No, I’m not

      going through twelve pieces of paper.” Id. at 22. Lafayette’s counsel informed

      the trial court that they agreed that Harris did not owe rent in January or

      February 2016. Id. He also acknowledged that Harris had paid $45.00 in

      February 2016 but that $30.00 of that payment was held as a security deposit

      and the remaining $15.00 was held as a credit on Harris’s account. Id. at 23.

      He said that Lafayette applied the $15.00 credit to the February 2017 rent of

      $58.00 and Harris owed a balance of $38.00 for February 2017 rent. Id. at 24.




      Court of Appeals of Indiana | Opinion 79A02-1703-SC-638| October 13, 2017   Page 7 of 15
[9]    The trial court asked Harris, “Why are you not paying rent? I pay rent. I pay a

       mortgage. Why don’t you?” Id. at 25. Harris said, “Because I wasn’t working.

       When you don’t work[,] you don’t have to pay rent.” Id. The trial court

       responded, “So [you] don’t work you get free rent? …. What a country, what a

       country.” Id. Ms. Horn stated that Harris did not owe rent for January 2017,

       but that she signed a document indicating that she would start paying rent in

       February. The trial court informed Harris that she owed $38.00 for February’s

       rent and $40.48 for rent through March 23, 2017. Harris said, “So is there any

       other way I can like (inaudible)?” Id. at 29. The trial court told Harris, “This is

       it. When you live somewhere you have to pay rent and you have to pay rent on

       time. …. We’re asking you to pay a dollar seventy-six a day. Okay?” Id. At

       the end of the hearing, the trial court entered judgment in favor of Lafayette

       and against Harris for $78.48 plus court costs of $121.00 and issued a writ

       granting Lafayette possession of the apartment on March 23, 2017.


[10]   Harris, by counsel, filed a motion for stay to enforce judgment, which the trial

       court denied, and a motion to proceed on appeal in forma pauperis, which the

       trial court granted. Harris also filed a motion for leave to modify the clerk’s

       record to include the two 2016 receipts she tendered, to which Lafayette

       objected. The trial court issued an order to correct the clerk’s record to include

       Harris’s tendered receipts and show that they were not admitted because there

       was “no name on the receipts.” Appellant’s App. Vol. 2 at 36. This appeal

       ensued. This Court granted Harris’s request for an emergency stay of

       proceedings permitting her to remain in her apartment pending the appeal.


       Court of Appeals of Indiana | Opinion 79A02-1703-SC-638| October 13, 2017   Page 8 of 15
                                       Discussion and Decision

          Section 1 - The trial court improperly shifted the burden of
                                 proof to Harris.
[11]   Harris asserts that the judgment is clearly erroneous because the trial court

       improperly shifted the burden of proof to her. We note that judgments in small

       claims actions are “subject to review as prescribed by relevant Indiana rules and

       statutes.” Ind. Small Claims Rule 11(A). When we review claims tried by the

       bench without a jury, we will not set aside the judgment “unless clearly

       erroneous, and due regard shall be given to the opportunity of the trial court to

       judge the credibility of the witnesses.” Ind. Trial Rule 52(A). “But this

       deferential standard does not apply to the substantive rules of law,” which we

       review de novo just as we do appeals from a court of general jurisdiction.

       Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). Harris’s

       arguments present questions of law, which we review de novo. Morton v. Ivacic,

       898 N.E.2d 1196, 1199 (Ind. 2008).


[12]   We address Harris’s arguments in the context of small claims actions, which are

       designed to be less formally structured than plenary proceedings. Matusky v.

       Sheffield Square Apts., 654 N.E.2d 740, 742 (Ind. 1995). Indiana Small Claims

       Rule 8(A) provides that a small claims 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.” “The informality of

       Court of Appeals of Indiana | Opinion 79A02-1703-SC-638| October 13, 2017   Page 9 of 15
       litigating in small claims court promotes doing substantial justice in a relatively

       efficient way, conferring benefits on plaintiffs and defendants alike.” Morton,

       898 N.E.2d at 1197. Nevertheless, “[t]he burden of proof in a small claims civil

       suit is the same as it would be had the case been filed in a general trial court.”

       Herren v. Dishman, 1 N.E.3d 697, 702 (Ind. Ct. App. 2013). “While the method

       of proof may be informal, the relaxation of evidentiary rules is not the

       equivalent of relaxation of the burden of proof. It is incumbent upon the party

       who bears the burden of proof to demonstrate that it is entitled to the recovery

       sought.” LTL Truck Serv., LLC v. Safeguard, Inc., 817 N.E.2d 664, 668 (Ind. Ct.

       App. 2004). “A judgment in favor of a party having the burden of proof will be

       affirmed if the evidence was such that from it a reasonable trier of fact could

       conclude that the elements of the party’s claim were established by a

       preponderance of the evidence.” City of Dunkirk Water & Sewage Dep’t v. Hall,

       657 N.E.2d 115, 116 (Ind. 1995).


[13]   We begin by observing that the only documentary evidence in the record before

       us is the lease. The lease does not show that Harris has unpaid rent. Simply

       put, there is no documentary evidence in the record that establishes that Harris

       owes Lafayette money. Furthermore, at the March 14 hearing, the trial court

       did not swear in any witnesses, despite the requirement that “[a]ll testimony

       shall be given under oath or affirmation.” Ind. Small Claims Rule 8(B). The

       trial court began the hearing by informing Harris that Lafayette claimed that

       she had not paid her February 2017 rent and asking her if she had paid it. The

       trial court then questioned the parties about Harris’s receipts, whether she had a


       Court of Appeals of Indiana | Opinion 79A02-1703-SC-638| October 13, 2017   Page 10 of 15
       credit on her account, and whether she owed rent for January and February

       2016. Finally, the trial court said, “I have nothing from you that proves that

       she owed rent and I have nothing that proves you paid rent.” Tr. Vol 2. at 17.

       The trial court decided to continue the hearing so that Harris could present

       documents in support of her position. However, Lafayette had not met its

       burden of proving that Harris owed it money. Thus, the trial court improperly

       shifted the burden of proof.


[14]   Lafayette asserts that the record does not support that the trial court improperly

       shifted the burden of proof to Harris. According to Lafayette, the trial court’s

       statement that, “I have nothing from you that proves that she owed rent and I

       have nothing that proves you paid rent” referred to January and February of

       2016 and that the trial court “mistakenly believed” that Lafayette was claiming

       that Harris was required to pay rent for those two months. Appellee’s Br. at 18.

       Lafayette maintains that the trial court’s “misunderstanding” was later

       recognized and corrected when Lafayette stipulated that Harris owed no rent

       for January and February 2016 and by “that point in the proceeding, Harris had

       already admitted she was required to pay rent starting in February 2017.” Id. at

       18-19 (citing Tr. Vol. 2 at 4).


[15]   Lafayette mischaracterizes the record. The record clearly shows that the trial

       court was not mistaken in believing that Lafayette claimed that Harris owed

       rent for January and February of 2016. During the March 14 hearing, the trial

       court twice asked the Lafayette representatives whether Harris owed rent for

       January and February 2016, and they maintained that Harris did. Tr. Vol. 2 at

       Court of Appeals of Indiana | Opinion 79A02-1703-SC-638| October 13, 2017   Page 11 of 15
       11-12. In fact, it was not until the hearing was reconvened on March 16 that

       Lafayette acknowledged that Harris had not owed rent for January and

       February 2016. Id. at 22. Lafayette admitted that Harris had paid $45.00 in

       February 2016 but asserted for the first time that it withheld $30.00 for a

       security deposit. As for Lafayette’s assertion that Harris had already admitted

       that she was required to pay rent starting in February 2017, we disagree. Harris

       never admitted that she owed Lafayette money for her February 2017 rent and

       consistently maintained that there was money in her account to cover the rent.

       Lafayette’s argument is without merit. We conclude that because Lafayette

       failed to establish that Harris owed it money by the end of the March 14

       hearing, the trial court improperly shifted the burden of proof and erred by

       continuing the hearing rather than ruling against Lafayette. See LTL Truck

       Serv., 817 N.E.2d at 668. Consequently, the judgment is clearly erroneous and

       must be reversed.


       Section 2 – The trial court failed to preside over the hearing as
        a neutral, impartial decision maker in violation of Harris’s
                              due process rights.
[16]   Notwithstanding our reversal of the trial court’s judgment, we also address

       Harris’s argument that she was denied her due process right to an impartial

       decision maker. Our review of the transcript leads us to agree with Harris.


[17]   A “‘trial before an impartial judge is an essential element of due process.’” In re

       J.K., 30 N.E.3d 695, 699 (Ind. 2015) (quoting Everling v. State, 929 N.E.2d 1281,

       1287 (Ind. 2010)); see also Rynerson v. City of Franklin, 669 N.E.2d 964, 967 (Ind.

       Court of Appeals of Indiana | Opinion 79A02-1703-SC-638| October 13, 2017   Page 12 of 15
       1996) (A neutral, unbiased, adjudicatory decision maker is a core requirement

       of due process.). A “‘biased decision maker [is] constitutionally unacceptable

       [and] our system of law has always endeavored to prevent even the probability

       of unfairness.’” Hewitt v. Westfield Washington Sch. Corp., 46 N.E.3d 425, 435

       (Ind. 2015) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).


[18]   We afford trial judges ample “‘latitude to run the courtroom and maintain

       discipline and control of the trial.’” J.K., 30 N.E.3d at 698 (quoting Timberlake

       v. State, 690 N.E.2d 243, 256 (Ind. 1997)). However, a judge has a “‘duty to

       remain impartial and refrain from making unnecessary comments or remarks.’”

       Id. at 699 (quoting Lake Cty. Div. of Family & Children Servs. v. Charlton, 631

       N.E.2d 526, 529 (Ind. Ct. App. 1994)). At all times the trial court “‘must

       maintain an impartial manner and refrain from acting as an advocate for either

       party.’” Id. (quoting Beatty v. State, 567 N.E.2d 1134, 1136 (Ind. 1991)). “A

       violation of due process occurs where a trial judge combines the roles of judge

       and advocate.” A.N. v. K.G., 3 N.E.3d 989, 995 (Ind. Ct. App. 2014), aff’d on

       reh’g, 10 N.E.3d 1270.


               The law presumes that a trial judge is unbiased. To overcome
               that presumption, the party asserting bias must establish that the
               trial judge has a personal prejudice for or against a party. Clear
               bias or prejudice exists only where there is an undisputed claim
               or the judge has expressed an opinion on the merits of the
               controversy before him or her. Adverse rulings and findings by
               the trial judge do not constitute bias per se. Instead, prejudice
               must be shown by the judge’s trial conduct; it cannot be inferred
               from his [or her] subjective views. Said differently, a party must


       Court of Appeals of Indiana | Opinion 79A02-1703-SC-638| October 13, 2017   Page 13 of 15
               show that the trial judge’s action and demeanor crossed the
               barrier of impartiality and prejudiced that party’s case.


       Richardson v. Richardson, 34 N.E.3d 696, 703-04 (Ind. Ct. App. 2015) (citations

       and quotation marks omitted).


[19]   Here, the trial court asked questions and made comments throughout both

       hearings that were improper. The trial court asked Harris, “Who else is paying

       your rent? Somebody is paying rent. Me as a taxpayer? …. [What] is it about

       you that requires Section 8 housing such that you can’t keep track of thirty-eight

       dollars?” Tr. Vol. 2 at 6 (emphases added). The trial court told Harris, “Okay,

       if they say you owe thirty-eight dollars for February just pay them the thirty-

       eight to get it done.” Id. at 7. In a similar vien, the trial court repeatedly asked

       Harris why she did not pay the $38.00 to “just get it done.” Id. at 13. The trial

       court also commented, “You have people who don’t work and free

       apartments[,] and the rest of us have to work to pay for it. That’s one of the

       problems in our country.” Id. at 12. The trial court asked Harris, “Why are you

       not paying rent? I pay rent. I pay a mortgage. Why don’t you.” …. So [you]

       don’t work you get free rent? …. What a country, what a country.” Id. at 25

       (emphases added). Lafayette contends that “none” of the trial court’s

       comments are “disparaging” of any person. Appellee’s Br. at 17. We disagree.

       The questions and comments belittle Harris for living in government-subsidized

       housing and not paying Lafayette $38.00.


[20]   We conclude that the trial court failed to preside over the hearing as a neutral,

       impartial decision maker in violation of Harris’s due process rights. The trial
       Court of Appeals of Indiana | Opinion 79A02-1703-SC-638| October 13, 2017   Page 14 of 15
       court’s actions and demeanor “‘crossed the barrier of impartiality and

       prejudiced’” Harris’s case.3 See Richardson, 34 N.E.3d at 703-04 (quoting

       Flowers v. State, 738 N.E.2d 1051, 1061 (Ind. 2000)). Accordingly, even if we

       were not reversing the judgment based on the trial court’s error regarding the

       burden of proof, we would reverse and order a new hearing by an impartial

       judge.4


[21]   Reversed.


       Vaidik, C.J., and Mathias, J., concur.




       3
           See Ind. Judicial Conduct Canons 1.2., 2.3(B), and 2.8(B).
       4
         Based on our resolution of Harris’s burden-shifting claim and due process claims, we need not address her
       arguments that she received insufficient notice and that the relief ordered by the trial court was unauthorized
       by statute.

       Court of Appeals of Indiana | Opinion 79A02-1703-SC-638| October 13, 2017                         Page 15 of 15
