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:                                Dec 19 2013, 10:12 am


JAMES C. SPENCER
Dattilo Law Office
Madison, Indiana

                               IN THE
                     COURT OF APPEALS OF INDIANA
JEFFREY O. GILSTRAP,                               )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 39A01-1303-SC-103
                                                   )
MICHAEL D. MOUNT,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE JEFFERSON SUPERIOR COURT
                           The Honorable Alison T. Frazier, Judge
                              Cause No. 39D01-1109-SC-353

                                       December 19, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
          Jeffrey O. Gilstrap appeals the denial of his motion for relief from judgment. We

affirm.

                          FACTS AND PROCEDURAL HISTORY

          On September 15, 2011, Michael Mount sued Gilstrap in small claims court, alleging

Gilstrap had possession of Mount’s vehicle and was to be refurbishing it, but had not

completed the work, for which Mount had already paid $5000.00. Mount sought judgment of

$5,000.00 and return of the vehicle. The small claims court held a hearing on October 21,

2011, at which Gilstrap appeared pro se. On October 27, the small claims court ordered

Gilstrap to return Mount’s vehicle and to pay Mount $5,000.00 plus court costs of $77.00.

          On April 4, 2012, Gilstrap filed a verified motion for relief from judgment, alleging

mistake, surprise, and excusable neglect under Ind. Trial Rule 60. Gilstrap claimed he did

not know, at the time of the hearing, that he had a valid defense to Mount’s claim against

him, nor did he know he had to bring witnesses to support his defense. After a hearing, the

small claims court denied Gilstrap’s motion.

                               DISCUSSION AND DECISION

          As a preliminary matter, we note Mount did not file an appellee’s brief. When an

appellee does not submit a brief, we do not undertake the burden of developing arguments for

that party. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct. App. 2002). Instead, we apply

a less stringent standard of review and may reverse if the appellant establishes prima facie

error. Id. Prima facie error is “error at first sight, on first appearance, or on the face of it.”

Van Wieren v. Van Wieren, 858 N.E.2d 216, 221 (Ind. Ct. App. 2006).

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       A party may be relieved from a judgment based on “mistake, surprise, or excusable

neglect.” T.R. 60(B)(1). The decision whether to grant a T.R. 60(B) motion is left to the

equitable discretion of the trial court and is reviewable only for abuse of discretion. Shotwell

v. Cliff Hagan Ribeye Franchise, 572 N.E.2d 487, 489 (Ind. 1991). An abuse of discretion

will be found only when the trial court’s action is clearly erroneous, that is, against the logic

and effect of the facts before it and the inferences that may be drawn therefrom. In re

Paternity of P.S.S., 934 N.E.2d 737, 741 (Ind. 2010). We will not reweigh the evidence in

conducting this review. Shotwell, 572 N.E.2d at 489.

       The burden is on the movant to show relief under T.R. 60(B) is both necessary and

just. Fairrow v. Fairrow, 559 N.E.2d 597, 599 (Ind. 1990). Such motions are not a

substitute for a direct appeal. P.S.S., 934 N.E.2d at 740. Rather, they address only the

procedural, equitable grounds justifying relief from the legal finality of a final judgment, not

the legal merits of the judgment. Id. To obtain relief from a judgment under T.R. 60(B)(1),

the movant must allege a meritorious claim or defense. T.R. 60(B).

       Indiana Small Claims Court Rule 2(B) requires a notice of claim contain:

       (1) The name, street address, and telephone number of the court;
       (2) The name, address, and telephone number of the claimant and defendant(s);
       (3) The place, date, and time when the parties are to appear on the claim,
       which date shall be set by the court with the objective of dispensing speedy
       justice between the parties according to the rules of substantive law;
       (4) A brief statement of the nature and amount of the claim; and
               (a) if the claim arises out of written contract, a copy shall be attached;
               however, the fact that a copy of such contract is not in the custody of
               the plaintiff shall not bar the filing of the claim; and
               (b) if the claim is on an account, an Affidavit of Debt, in a form
               substantially similar to Small Claims Appendix A shall be attached;
       (5) A statement that the parties may appear either in person or by an attorney;
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       (6) An instruction to the defendant that the defendant should bring to the trial
       all documents in the possession of or under the control of the defendant
       concerning the claim;
       (7) A statement that if the defendant does not wish to dispute the claim he may
       nonetheless appear for the purpose of allowing the court to establish the
       method by which the judgment shall be paid;
       (8) The name, street address and telephone number of the person designated by
       the court with whom the defendant may communicate if defendant is unable to
       appear at the time or place designated in the notice;
       (9) A statement that a default judgment may be entered against the defendant if
       he fails to appear on the date specified in the notice of the claim;
       (10) Notice of the defendant’s right to a jury trial and that such right is waived
       unless a jury trial is requested within ten (10) days after receipt of the notice of
       claim; that once a jury trial request has been granted, it may not be withdrawn
       without the consent of the other party or parties; and within ten (10) days after
       the jury trial request has been granted, the party requesting a jury trial shall pay
       the clerk the additional amount required by statute to transfer the claim to the
       plenary docket or, in the Marion Small Claims Court, the filing fee necessary
       to file a case in the appropriate court of the county; otherwise, the party
       requesting a jury trial shall be deemed to have waived the request; and
       (11) Any additional information which may facilitate proper service.

After Mount filed his claim in small claims court on September 15, 2011, Gilstrap received

notice thereof, which stated:

       IMPORTANT INFORMATION CONCERNING THIS CLAIM
       1. The plaintiff and defendant may represent themselves individually or be
       represented by a lawyer. The plaintiff and the defendant must bring to the trial
       all documents in their possession or control concerning this claim.
       2. The defendant must provide the Court and Plaintiff with a written statement
       of any counterclaim arising out of the Plaintiffs claim at least (7) calendar days
       before trial.
       3. Any request for a change of the trial date by either party should be directed
       to the Jefferson Superior Court at: Phone No. 265-8915.
       4. By filing this claim in Jefferson Superior Court, small claims, the plaintiff
       no longer has a right to a trial by jury. The defendant has ten (10) days from
       receipt of this notice to file an affidavit requesting a jury trial and pay a
       transfer fee for transferring the case to the plenary docket or he/she too loses
       the right to a jury trial.
       5. If the defendant does not wish to dispute the plaintiffs claim, he/she may
       appear at the time of trial for the purpose of providing information to the Court
                                                4
       as to his/her responsibility.
       6. If a settlement of this claim is made out of court, the parties must submit the
       settlement in writing to the Judge of this Court for his approval before the
       settlement can become a judgment against the defendant.
       7. If you fail to appear at the time and date set for trial, a Default Judgment
       may be entered against you.

(App. at 5.) Gilstrap concedes that notice comports with the requirements of Small Claims

Rule 2(B), but nevertheless argues the small claims court abused its discretion because “he

had no notice that he should bring witnesses to the hearing, he did not bring witnesses even

though he had them, and those witnesses may have been sufficient to successfully defend the

lawsuit and to successfully pursue a counter-claim.” (Br. of Appellant at 11.)

       Gilstrap proceeded before the Small Claims Court pro se. It is well-settled that pro se

litigants are held to the same standard as are licensed attorneys. Goossens v. Goosens, 829

N.E.2d 36, 43 (Ind. Ct. App. 2005). Even though Gilstrap proceeded pro se, he was obliged

to know and follow the small claims rules. Thus, the small claims court did not abuse its

discretion in denying his motion. See, e.g., Rickels v. Herr, 638 N.E.2d 1280, 1283 (Ind. Ct.

App. 1994) (trial court was not expected to tell pro se litigant what to do in response to a

motion for summary judgment). Accordingly, we affirm.

       Affirmed.

BAILEY, J., and BRADFORD, J., concur.




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