FOR PUBLICATION                                                    Mar 11 2014, 10:12 am




ATTORNEY FOR APPELLANT:                     ATTORNEY FOR APPELLEE:

DAVID W. STONE IV                           JOHN G. GARMAN
Anderson, Indiana                           Anderson, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

MICHAEL E. HITCHENS,                        )
                                            )
     Appellant-Defendant,                   )
                                            )
              vs.                           )      No. 48A05-1306-SC-302
                                            )
COLLECTION SPECIALISTS, INC.,               )
                                            )
     Appellee-Plaintiff.                    )


                    APPEAL FROM THE MADISON CIRCUIT COURT
                         The Honorable David A. Happe, Judge
                           Cause No. 48C04-1208-SC-4256



                                  March 11, 2014

                            OPINION - FOR PUBLICATION

PYLE, Judge
                              STATEMENT OF THE CASE

        Michael E. Hitchens (“Hitchens”) appeals the small claims court’s judgment in

favor of Collection Specialists, Inc. (“Collection Specialists”) concerning a bill for dental

work.

        We affirm.

                                          ISSUE

        Whether the small claims court denied Hitchens the due process of law
        when it admitted a letter containing hearsay into evidence.

                                          FACTS

        On July 19, 2010, Hitchens visited his periodontist, Doctor VanDorn (“Dr.

VanDorn”), for a routine examination of his gums. While there, Hitchens mentioned that

he had noticed that some of his teeth—numbers 5, 6, 7, and 8—were slightly loose.

Hitchens had an implant bridge on those four teeth, and Dr. VanDorn recommended that

Hitchens talk to his dentist, Doctor Bradley Laconi (“Dr. Laconi”), about recementing the

bridge.   Hitchens already had an appointment scheduled with Dr. Laconi for the

following day concerning unrelated dental work, so the next day he discussed the matter

of the loose teeth with Dr. Laconi and made a follow-up appointment for Dr. Laconi to

look at the bridge on August 3, 2010.

        On August 3, Dr. Laconi removed the bridge and discovered that the implant

screws on two of the teeth were broken and needed to be replaced. Dr. Laconi said “I’ll

take care of this,” and Hitchens responded “I think that’s a good idea[.] [T]hey need to be

fixed.” (Tr. 31). Dr. Laconi and his office manager told Hitchens that they would not be


                                             2
able to determine the cost of the repairs until they received a bill for the replacement

parts. In spite of this uncertainty, Hitchens said that he wanted to continue with the

procedure, so Dr. Laconi ordered the parts, and Hitchens returned to Dr. Laconi’s office

for appointments on August 19, 2010; August 24, 2010; September 23, 2010; and

September 27, 2010.

       After completing the dental work, Dr. Laconi filed insurance claims on Hitchens’

behalf and received payment for the first claim on December 16, 2010. Hitchens reached

the cap on his insurance policy at that point, and Dr. Laconi sent Hitchens a bill for the

remainder, which totaled $3,440.00. Hitchens did not pay the bill or contact Dr. Laconi

to dispute it. In attempts to receive payment, Dr. Laconi’s office contacted Hitchens by

phone and through mail, but did not receive a response. On May 25, 2012, Dr. Laconi

assigned the debt to Collection Specialists, a debt collection agency.          Collection

Specialists sent Hitchens a letter on August 8, 2012, notifying him that he had thirty days

to dispute the debt. At that point, Hitchens did dispute the debt, and, on August 20, 2012,

Collection Specialists filed a claim against him in the small claims court.

       On April 26, 2013, the small claims court held a bench trial. During the trial,

Collection Specialists offered into evidence a letter from Dr. Laconi in which he

described his perspective of events. Specifically, Dr. Laconi recounted that he had told

Hitchens that he would not know how much the procedure would cost until he received a

bill for the replacement screws and bridge. He also wrote that Hitchens “was very aware

of his treatment plan and was very willing to have it completed. He had [six (6)]

appointments with us before the work was completed and never once stated he was

                                             3
unhappy with the treatment he received.” (Ex. 4). Hitchens objected to the admission of

the letter, arguing that it was essentially unsworn testimony that was not subject to cross-

examination. The small claims court overruled the objection, citing the nature of small

claims trials, which favor speedy resolution over rules of evidence or procedure.

Hitchens next testified in his defense and contradicted Dr. Laconi’s letter. He stated that

he did not realize he would be charged for the repair because he thought that Dr. Laconi

had broken the screws while attempting to remove the bridge. (Tr. 31). He also testified

that if he had known the repairs would cost so much, he would not have gone through

with them.

       At the conclusion of the trial, the court entered a judgment in favor of Collection

Specialists. On May 21, 2013, Hitchens filed a motion to correct errors in which he

argued that the small claims court had denied him due process when it admitted Dr.

Laconi’s unsworn letter because he did not have an opportunity to cross-examine Dr.

Laconi. Then, on May 22, 2013, the small claims court denied Hitchens’ motion to

correct errors. He now appeals. We will provide additional facts as necessary.

                                        DECISION

       As a preliminary matter, we note that Collection Specialists has not filed a brief.

When an appellee does not file a brief, we will not undertake to develop an argument on

the appellee’s behalf, and may instead reverse upon the appellant’s prima facie showing

of reversible error. Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008). Prima facie

error in this context is defined as, “‘at first sight, on first appearance, or on the face of

it.’” Id. (quoting Trinity Homes v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006)).

                                             4
       Hitchens argues again on appeal that the small claims court denied him due

process. His argument essentially has two components: (1) that the trial court denied

him due process when it admitted Dr. Laconi’s unsworn letter because allowing Dr.

Laconi to testify through a letter prevented him from being able to cross-examine Dr.

Laconi; and (2) that the trial court denied him due process because its decision was based

entirely on unsworn hearsay testimony. Hitchens does not clarify whether he is seeking

protection under the Due Process Clause of the United States Constitution or the Indiana

Constitution. Because he does not present a specific analysis pursuant to the Indiana

Constitution, he has waived any state constitutional claims, and we must proceed under

the United States Constitution. See Turner v. Bd. of Aviation Comm’rs, 743 N.E.2d 1153

(Ind. Ct. App. 2001), trans. denied.

       According to the Fourteenth Amendment of the United States Constitution, no

state may deprive a person of “life, liberty, or property, without due process of the law.”

U.S. Const. amend XIV, § 1.        “‘Generally stated, due process requires notice, an

opportunity to be heard, and an opportunity to confront witnesses.’” Morton, 898 N.E.2d

at 1199 (quoting Ind. State Bd. of Educ. v. Brownsburg Cmty. School Corp., 842 N.E.2d

885, 889 (Ind. Ct. App. 2006)). However, we note that the nature of small claims trials is

relevant here. Small claims trials are meant to be “informal, with the sole objective of

dispensing speedy justice between the parties according to the rules of substantive law.”

Ind. Small Claims Rule 8(A).       Accordingly, they are “not bound by the statutory

provisions or rules of practice, procedure, pleadings, or evidence except provisions

relating to privileged communications and offers of compromise.”            S.C. R. 8(A).

                                            5
Hearsay evidence is admissible in small claims actions, and expeditious resolution is

essential to the efficacy and attractiveness of the optional small claims process. Fortner

v. Farm Valley-Applewood Apartments, 898 N.E.2d 393, 398 (Ind. Ct. App. 2008). In

addition, we have previously held that a deferential standard of review is particularly

appropriate for small claims actions. Id.

        In his brief, Hitchens acknowledges that hearsay is admissible in small claims

actions but argues that this evidentiary rule does not “trump the right to cross[-]examine a

witness under oath . . . .” (Hitchen’s Br. 5). In support of this contention, Hitchens cites

two small claims court cases, Lowry v. Lanning, 712 N.E.2d 1000 (Ind. Ct. App. 1999),

and Graves v. American Express, 669 N.Y.S.2d 463 (N.Y. App. Term 1997).1 We do not

find either of these cases on point.

        Lowry was an Indiana small claims action between two sisters, Lowry and

Lanning, concerning an outstanding loan debt that Lowry allegedly owed Lanning.

Lowry, 712 N.E.2d at 1000. After Lanning testified during a bench trial before the small

claims court, Lowry attempted to cross-examine her regarding the age of the loan. Id. at

1001. Instead of allowing Lowry to ask Lanning her questions, the trial court stated that

it “disbelieve[d]” Lowry and entered judgment in favor of Lanning. Id. On appeal, this

Court recognized the importance of the right to cross-examine witnesses and concluded

that the trial court had abused its discretion by preventing Lowry from asking Lanning

about the age of the loan. Id.

1
 Hitchens also cites to two other cases that are not small claims court cases. Because the standard for
small claims actions is different from plenary actions and because the facts of the cases Hitchens cites are
not analogous, we will not discuss them in detail.
                                                     6
        In Graves, a New York small claims court prevented the defendant from cross-

examining the plaintiff because the defendant did not have any witnesses for the plaintiff

to likewise cross-examine.2 Graves, 669 N.Y.S.2d at 286. On appeal, the New York

Supreme Court, Appellate Term, held that the small claims court had erred in

determining that a party’s right to cross-examine a witness is contingent on also

presenting witnesses. Id. Its reasoning was that due process includes “the basic right to

cross-examine witnesses.” Id.

        Neither of these cases is analogous to the case at hand because in each case the

trial court prohibited cross-examination of an in-court witness in response to that

witness’s testimony. Here, Dr. Laconi did not testify in court, and the small claims court

did not expressly deny Hitchens a chance to cross-examine him. Hitchens merely argues

that, because the small claims court admitted a letter written by Dr. Laconi and Dr.

Laconi was not in court for Hitchens to cross-examine, the small claims court inherently

violated his due process right to cross-examination.               We do not find this argument

persuasive.     Unlike Lowry and Graves, where the small claims courts expressly

prohibited questioning, Hitchens could have subpoenaed Dr. Laconi as a witness himself.

Pursuant to Small Claims Rule 8(B), “[w]itnesses may be called and the court shall have

the power to compel their attendance.” S.C. R. 8. Hitchens argues that he did not know

that Dr. Laconi would not be in court, but under Ind. Small Claims Rule 6, he could have


2
  We also recognize that, as this is a New York case, we are not bound by its precedent. Smith v.
Beneficial Finance Co. of Indianapolis, Inc., 218 N.E.2d 921, 922 (Ind. Ct. App. 1966) (“Many courts
turn to decisions of tribunals in other jurisdictions to aid them through analogy or interpretation, in
deciding their own cases. This practice is appropriate when there is a lack of authority in a court’s own
jurisdiction, but where authority exists, a court is bound to give it primary consideration.”).
                                                   7
requested discovery and known whether Dr. Laconi would be in court.3 Regardless, the

small claims court did not prevent Hitchens from subpoenaing Dr. Laconi once he

realized Collection Specialists was not going to call the doctor as a witness. Under these

facts, we cannot conclude that the small claims court denied Hitchens due process.

       In support of this conclusion, we note the Indiana Supreme Court’s opinion in

Matusky v. Sheffield Square Apartments, 654 N.E.2d 740 (Ind. 1995). Although the

Supreme Court did not directly address the issue of due process in Matusky, it upheld the

trial court’s admission of hearsay in the place of in-court testimony, thereby inherently

implying that such a practice does not violate due process. The Supreme Court’s opinion

is also dispositive as to Hitchens’ argument that hearsay cannot be the sole evidence

supporting a judgment.

       In Matusky, the owners of an apartment complex filed a small claims action

against a former tenant for damages to the apartment in excess of the security deposit the

tenants had paid. Id. at 741. The tenants filed a counter-claim arguing that the apartment

complex had failed to send them an itemized list of damages as required by law and,

therefore, should have returned their security deposit. Id. At trial, the apartment complex

introduced an affidavit from an employee in the complex’s corporate parent’s office in

which the employee attested that she had mailed a list of damages to the tenant. Id.

Based on this evidence, the trial court granted judgment in favor of the apartment

complex. Id.

3
 Small Claims Rule 6 provides that “[d]iscovery may be had in a manner generally pursuant to the rules
governing any other civil action, but only upon the approval of the court and under such limitations as
may be specified. . . .” S.C. Rule 6.
                                                  8
       On appeal to the Supreme Court, the tenants claimed that, although hearsay is

permissible in a small claims action, a judgment may not be entirely based on hearsay

evidence. Id. The Supreme Court disagreed, stating:

       [T]he whole point of having a separate small claims process is to provide a
       quick, less expensive alternative to a full-blown trial. It is precisely these
       goals which would be the most compromised by the accretion of procedural
       and evidentiary regulations, regardless of their merit, which is why the non-
       substantive rules applicable in small claims proceedings are few indeed.

Id. at 742. The Supreme Court also noted that:

       [t]he importance of limiting a fact-finder’s exposure to suspect evidence
       increases with the importance of what is at stake. This interest is reflected
       in the jurisdictional limit placed on the small claims docket, which has the
       effect of directing parties with more substantial matters to the plenary
       docket, in which all of the full panoply of procedural protections pertain.

Id.

       We find the Supreme Court’s reasoning relevant here. Although Dr. Laconi’s

letter was the only evidence that there was an agreement between Dr. Laconi and

Hitchens regarding the dental work, it was admissible hearsay evidence, and it was

permissible for the small claims court to base its judgment on the letter. See id. We also

note that, while the letter was unsworn, Dr. Laconi had signed it, and the witness who

introduced the letter—James West (“West”), the supervisor of Collection Specialists’

legal department—was under oath during the introduction. As part of his testimony,

West clarified that in preparation for the small claims action, Collection Specialists

“verif[ied] all the information” and “check[ed] with the doctor,” among other steps. (Tr.

12). West also asked Dr. Laconi to “verify the services” through the letter. (Tr. 15).



                                             9
       In light of West’s testimony and the Supreme Court’s decision in Matusky, we find

that the small claims court did not deny Hitchens due process by admitting Dr. Laconi’s

letter or by basing its judgment on the letter. In Rzeszutek v. Beck, 649 N.E.2d 673 (Ind.

Ct. App. 1995), trans. denied, we faced a situation similar to Matusky in which an

appellant challenged the small claims court’s acceptance of unsworn hearsay evidence, as

well as the court’s judgment based exclusively on that evidence. In that case, the nature

of the hearsay evidence the small claims court admitted was almost identical to the nature

of the evidence the court admitted in the instant case. See id. at 675. It was an unsworn,

but signed, document a witness who had not prepared the document presented under

oath.4 Id. On appeal, we wrote that the effect of re-writing the Small Claims Rules to

provide that a judgment could not be based exclusively on hearsay evidence would

“impose technical rules upon largely untrained litigants[,] completely thwarting the

express purpose of providing an uncomplicated and simple method of resolution of issues

in order to dispense speedy justice between the parties.” Id. at 681. For the same

reasons, we decline to impose such technical rules here, and we conclude that the trial

court did not deny Hitchens due process.

       Affirmed.

MATHIAS, J., and BRADFORD, J., concur.




4
  The witness did take part in preparing the document, but he testified at trial that the document as a
whole was also prepared by the rest of his family and another woman named Lucy Rzeszutek
(“Rzeszutek”), none of whom appear to have testified in court. See Rzeszutek, 649 N.E.2d at 675. The
person who signed the list was Rzeszutek. Id.
                                                  10
