                                                                           Sep 30 2013, 5:35 am




FOR PUBLICATION

ATTORNEY FOR APPELLANT:

ANNICA M. DOWNING
Swope Law Offices, LLC
Schererville, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

AMY PALMER,                                    )
                                               )
      Appellant-Defendant,                     )
                                               )
            vs.                                )        No. 45A03-1302-SC-31
                                               )
MARGARET SALES and UNIQUE                      )
INSURANCE COMPANY,                             )
                                               )
      Appellees-Defendants.                    )


                    APPEAL FROM THE LAKE SUPERIOR COURT
                     The Honorable Michael N. Pagano, Magistrate
                          Cause No. 45D09-1210-SC-2915



                                   September 30, 2013


                              OPINION - FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Amy Palmer lost control of a vehicle that she was driving and swerved into Margaret

Sales’s yard, causing damage. Sales filed a small claims action against Palmer. Palmer filed

a request for a change of judge and a request for a jury trial, both of which were denied.

Palmer conceded liability, and a bench trial was held on damages. The small claims court

entered a monetary judgment for Sales in an amount equal to an estimate for repairs that she

submitted into evidence.

       On appeal, Palmer argues that the small claims court erred by denying her request for

a change of judge and request for a jury trial. She also argues that the amount of damages

was excessive. We agree that the small claims court erred by finding that her request for a

change of judge was untimely. The small claims court had relied on McClure v. Cooper, 893

N.E.2d 337 (Ind. Ct. App. 2008). We disagree with the majority opinion in McClure, which

gives the defendant only three days after receiving the notice of claim to request a change of

judge. In any event, McClure is distinguishable because the notice of claim sent to Palmer

did not properly notify her of the trial date. Because the request for a change of judge should

have been granted, the small claims court was deprived of jurisdiction, and the judgment

must be reversed. Therefore, we will not address Palmer’s claim that the amount of damages

was excessive. However, because the issue will recur on remand, we will address Palmer’s

arguments concerning her request for a jury trial. We conclude that the affidavit that Palmer

submitted in support of her request met the level of specificity required by the applicable

statute. Therefore, we reverse and remand with instructions to grant Palmer’s request for a


                                              2
change of judge, to implement the procedure for selection of a new judge, and to transfer the

case to the plenary docket.

                                   Facts and Procedural History

        On June 25, 2012, Palmer was driving a vehicle when she got into an argument with

her ex-boyfriend. Palmer lost control of the vehicle and swerved onto Sales’s property,

causing damage. On October 26, 2012, Sales filed a small claims action against Palmer.1 A

bench trial was scheduled for January 2, 2013; however, the notice of claim erroneously

stated that the trial was set for January 2, 2012.

        On November 19, 2012, counsel entered an appearance for Palmer, filed an answer,

and requested a change of judge and a jury trial. A supporting affidavit states:

        2. Defendant Amy Palmer was served November 7, 2012, making her demand
        for a jury and for a change of judge due November 17, 2012; per Rule, as
        November 17, 2012 fell on a Saturday, Sunday or holiday when the court was
        not open to conduct business, the responsive pleadings are not due until the
        next court business day, which is Monday, November 19, 2012.

        3. That there are questions of fact in this matter requiring a trial by jury, to
        wit: This case will rely heavily upon a determination of credibility, causation
        and even the actual existence of damages incurred, as opposed to claimed
        without merit or evidence, which has been shown in matters past to be best
        determined by a jury of the Defendant’s peers as opposed to a single trier of
        fact, and which requires the application of the rules of law and evidence not
        available or enforced in small claims matters by this court. Causation and
        liability in this matter will rely heavily upon a determination of credibility and
        the weighing of conflicting testimony, as well as the probability that multiple
        conclusions can and will be arrived at given the same fact pattern; as such, it
        will require more than a single fact finder in order to properly evaluate this
        case so that all of the varying conclusions can be weighed and disposed of,
        1
          Sales also sued Palmer’s insurance company, Unique Insurance Company. The insurance company
was dismissed with prejudice due to lack of privity between Sales and the insurance company. The insurance
company does not participate in this appeal, but is a party of record. See Ind. Appellate Rule 17(A) (“A party
of record in the trial court … shall be a party on appeal.”).

                                                      3
       rather than a single fact finder who will invariabl[y] arrive at a single
       conclusion, and/or have difficulty weighing multiple conclusions from the
       same fact pattern. On information and belief, a jury of the Defendants’ peers
       will arrive at a different conclusion and resolution, and these issues that will be
       available by bench trial, and a jury demand is hereby made accordingly, and in
       good faith.

Appellant’s App. at 10-11.

       On November 26, 2012, the small claims court issued an order denying the request for

change of judge as untimely, citing McClure v. Cooper, 893 N.E.2d 337 (Ind. Ct. App.

2008). The order further indicated that the request for jury trial would be considered on

January 2, 2013.

       On January 2, Palmer filed a motion to reconsider the ruling on the change of judge,

which was denied. The small claims court then heard arguments on the request for jury trial,

during which the court stated:

       [Indiana Code Section] 33-29-2-7, it specifically says the defendant may not
       later than ten days, et cetera, et cetera. The affidavit must state that the –
       specifies those questions of fact.

              Those questions of fact are not specified. It just merely says that we
       want a jury trial on the issues. It does not say what facts need to go to a jury
       which leads me to believe that this may not be made in good faith but is
       primarily for a delay, especially since liability is not being contested.

Tr. at 20. The court ultimately denied the motion on the following grounds:

       I’m gonna rule on two … points here. One, pursuant to 33-29-2-7(b)(2),
       there’s insufficient specificity as to what those questions of fact would be that
       need to be sent to a jury.

               And, two, given the global things of what I’ve heard here, I’m not
       satisfied that it was made in good faith.

Id. at 23-24.

                                               4
       The case then proceeded to a bench trial. Sales testified concerning the damages

caused by the accident, and in support, she submitted photographs and estimates for repairs

from two different contractors. Palmer conceded liability, but gave a somewhat different

account of the extent of the damage caused by the accident. The court entered judgment for

Sales in the amount of $2375, which corresponded to one of the estimates. Palmer now

appeals.

                                   Discussion and Decision

       Sales has not filed a brief; therefore, Palmer need only establish prima facie error.

State Farm Ins. v. Freeman, 847 N.E.2d 1047, 1048 (Ind. Ct. App. 2006). Prima facie is

defined in this context as “at first sight, on first appearance, or on the face of it.” Id. (quoting

AmRhein v. Eden, 779 N.E.2d 1197, 1205 (Ind. Ct. App. 2002)). Palmer argues that: (1) the

small claims court erred by finding her request for a change of judge untimely; (2) the small

claims court erred by finding that her motion for a jury trial was unsupported and not made in

good faith; and (3) the award of damages was excessive. Because we agree with Palmer that

the judgment must be reversed and the case transferred to a new judge on the plenary docket,

we will not address the issue of damages.

                                      I. Change of Judge

       The Indiana Trial Rules govern small claims proceedings to the extent that they do not

conflict with the Indiana Small Claims Rules. McClure v. Cooper, 893 N.E.2d 337, 339 (Ind.

Ct. App. 2008). There is no Small Claims Rule regarding changes of judge; therefore, Trial

Rule 76 applies. Kalwitz v. Kalwitz, 934 N.E.2d 741, 749 (Ind. Ct. App. 2010). Trial Rule


                                                 5
76(C) sets forth the following deadline for a motion for change of judge:

       (C) In any action except criminal no change of judge or change of venue from
       the county shall be granted except within the time herein provided. Any such
       application for change of judge (or change of venue) shall be filed not later
       than ten [10] days after the issues are first closed on the merits. Except:

              (1) in those cases where no pleading or answer may be required to be
              filed by the defending party to close issues (or no responsive pleading is
              required under a statute), each party shall have thirty [30] days from the
              date the case is placed and entered on the chronological case summary
              of the court as having been filed;

              ….

              (5) where a party has appeared at or received advance notice of a
              hearing prior to the expiration of the date within which a party may ask
              for a change of judge or county, and also where at said hearing a trial
              date is set which setting is promptly entered on the Chronological Case
              Summary, a party shall be deemed to have waived a request for change
              of judge or county unless within three days of the oral setting the party
              files a written objection to the trial setting and a written motion for
              change of judge or county….

       In McClure, another panel of the Court of Appeals interpreted Trial Rule 76(C) in the

context of small claims proceedings. In that case, Jackie Cooper filed a claim against Alfred

McClure in small claims court. The notice of claim contained a notice of hearing. McClure

later filed a motion for change of judge, which was denied. On appeal, McClure argued that

Trial Rule 76(C)(1) applied because a responsive pleading is not required in small claims

proceedings and that his motion was filed within the time allowed by that subsection. A

majority disagreed, concluding that Subsection (C)(5) applied because a trial date had been

set:

       Here, as in most small claims proceedings, the hearing and trial date are one in
       the same and are set forth in the notice which is a part of the small claims

                                              6
       form. Thus, unlike most civil proceedings, a small claims litigant
       automatically has a hearing date upon the filing of a claim. Accordingly, we
       conclude that a timely motion for change of judge within the context of a small
       claims action would have required McClure to file his motion within three
       days of receiving the notice of claim. We therefore agree with the trial court
       that McClure’s Motion for Change of Judge was untimely.

McClure, 893 N.E.2d at 340.

       Judge Kirsch dissented, stating:

       To me the rule applies very narrowly. It requires (1) that a party appear at or
       have notice of a hearing, (2) that the court at that hearing sets the matter for
       trial, and (3) that the trial date is promptly entered into the CCS. Here, because
       the trial setting was not made in course of conducting a hearing, I do not
       believe the Rule applies, and, accordingly, I respectfully dissent.

Id. at 342 (Kirsch, J., dissenting).

       In this case, Palmer received the notice of claim on November 7, 2012, which

erroneously indicated that the trial was set for January 2, 2012. Clearly, the trial could not be

held on January 2, 2012, as that predated the filing of the claim by several months. Palmer

argues that setting an impossible trial date is functionally the same as not setting a trial date;

therefore, we should apply Trial Rule 76(C)(1) rather than follow McClure and apply Trial

Rule 76(C)(5). Alternatively, Palmer argues that McClure was wrongly decided and that we

should follow Judge Kirsch’s dissent.

       We believe that Judge Kirsch’s dissent represents the better approach, as it relies on

the explicit language of Trial Rule 76. Furthermore, the policy concerns relied on by the

majority opinion have since been eroded. At the time McClure was decided, Small Claims

Rule 2(B)(3) required the small claims court to set a trial date between ten and forty days

after service of the notice of the claim. The McClure majority was concerned that allowing a

                                                7
party thirty days to request a change of judge would interfere with the schedule set forth in

Small Claims Rule 2(B)(3). In 2008, Small Claims Rule 2(B)(3) was amended to omit any

reference to a specific deadline for scheduling a trial date and now states that the trial date

“shall be set by the court with the objective of dispensing speedy justice between the parties

and according to the rules of substantive law.”

       While speedy resolution is one of the aims of small claims proceedings, they are also

meant to be accessible to pro se parties. While we often tell pro se parties that ignorance of

the law is not an excuse, pro se parties in a small claims case should be given a reasonable

opportunity to discover what the applicable rules are or to decide to hire an attorney. We

think that few non-attorneys would be prepared to request a change of judge within three

days of receiving the notice of claim, especially because Trial Rule 76(C)(5) on its face

would not appear to apply; one would have to know to look beyond the text of the rule and

search case law. We also note that the notice of claim is required to notify the defendant that

a jury trial must be requested within ten days, Small Claims Rule 2(B)(10), but is not

required to provide any information about requesting a change of judge.                   The

unreasonableness of the three-day rule is highlighted by the facts of this case. Palmer was

apparently provided with counsel by her insurer, but counsel did not enter an appearance

until twelve days (eight business days) after the notice of claim was served. Counsel

promptly requested a change of judge, well in advance of the January 2, 2013 trial date. The

practical effect of the McClure rule is to foreclose the right to request a change of judge.

While the Small Claims Rules might benefit from a specific rule for changes of judge that


                                              8
better balances the aims of speedy resolution and accommodation of pro se parties, in the

meantime, we must apply the Trial Rules promulgated by our supreme court as written.

       Furthermore, even if we agreed with the holding in McClure, we find that it is

distinguishable in this case. In denying Palmer’s request for a change of judge, the small

claims court focused on the fact that Palmer could not have reasonably believed that the trial

was set for January 2, 2012; the court felt that Palmer should have assumed that the year was

filled out incorrectly. While the trial date of January 2, 2012, was obviously a mistake, we

cannot agree that the notice adequately informed Palmer that a trial was set for January 2,

2013. The holding in McClure would only come into play when a trial date is set and the

defendant is given notice of the date. It is not enough that the notice provide information

from which the defendant might guess or proactively discover the actual trial date.

       We conclude that Trial Rule 76(C)(5) does not apply, and the request for a change of

judge was timely pursuant to Trial Rule 76(C)(1) and should have been granted. See Kalwitz,

934 N.E.2d at 749 (granting of a motion to change judge is automatic if made within the time

limit). Therefore, we reverse the judgment of the trial court and remand with instructions

that the court grant Palmer’s request for a change of judge and that the procedures for the

selection of a new judge be implemented. See A.T. v. G.T., 960 N.E.2d 878, 882 (Ind. Ct.

App. 2012) (holding that trial court erred in denying motion for change of judge, reversing

ruling on petition for modification of custody because trial court was deprived of jurisdiction,

and remanding with instructions to grant change of judge and implement selection of new

judge).


                                               9
                                       II. Request for Jury Trial

        Because the issue will recur on remand, we will also address Palmer’s request for a

jury trial. Indiana Code Section 33-29-2-72 provides:

              (a) The filing of a claim on the small claims docket is considered a
        waiver of trial by jury.

               (b) A defendant may, not later than ten (10) days following service of
        the complaint in a small claims case, demand a trial by jury by filing an
        affidavit that:

                 (1) states that there are questions of fact requiring a trial by jury;

                 (2) specifies those questions of fact; and

                 (3) states that the demand is in good faith.

               (c) Notice of the defendant’s right to a jury trial, and the ten (10) day
        period in which to file for a jury trial, shall be clearly stated on the notice of
        claim or on an additional sheet to be served with the notice of claim on the
        defendant.

               (d) Upon the deposit of seventy dollars ($70) in the small claims docket
        by the defendant, the court shall transfer the claim to the plenary docket. Upon
        transfer, the claim then loses its status as a small claim.

        There is a lack of authority interpreting this statute; however, we interpreted a similar

statute in Freeman. On April 5, 2004, the Freemans filed a small claims action in Warrick

Superior Court against State Farm and two other individuals who apparently were insured by

State Farm. State Farm was served on April 15, 2004. On April 20, 2004, an attorney

entered an appearance for State Farm and filed a request for jury trial and affidavit in



        2
          Palmer cites Indiana Code Section 33-28-3-7, which contains identical language, but applies to the
small claims division of a circuit court. Indiana Code Section 33-29-2-7 applies to the small claims division of
a superior court.

                                                      10
support. After a hearing, the court denied State Farm’s request for jury trial. State Farm

appealed. We concluded that Indiana Code Section 33-33-87-17, which specifically applies

to the Warrick County courts, governed State Farm’s request for jury trial. That statute

states:

          The defendant may, not later than ten (10) days after being served, make
          demand for a trial by jury by affidavit stating that there are questions of fact
          requiring a trial by jury, specifying them, and stating that the demand is
          intended in good faith. The court shall then cause the claim to be transferred
          to the regular docket and the defendant shall pay the filing fee charged for
          filing civil actions in circuit court. Upon transfer a claim loses its status as a
          small claim and is subject to all ordinary rules and procedure.

Ind. Code § 33-33-87-17. The affidavit submitted by State Farm averred that State Farm and

the other defendants “specifically request that they be allowed to present their defense to a

jury and to undertake discovery in order to verify Plaintiffs’ allegations of lost wages and

medical bills as no such evidence has been provided to substantiate the Plaintiffs’ claims.”

Freeman, 847 N.E.2d at 1049. The affidavit also averred that the demand for jury trial was

made in good faith. We held that the affidavit met the requirements of Indiana Code Section

33-33-87-17 and therefore transfer to the plenary docket was mandatory. Id.

          Similar to Indiana Code Section 33-33-87-17, Indiana Code Section 33-29-2-7

requires the defendant to submit an affidavit that specifies questions of fact and states that the

demand is made in good faith. Palmer’s affidavit states that there are factual issues

concerning credibility, causation, and the extent or existence of damages. This request is not

unlike the one made in Freeman, where the defendant called into question the plaintiffs’

ability to substantiate their damages. Freeman did not require the defendant to identify


                                                 11
specific facts that would be asserted by the plaintiffs or specific evidence that would be used

to controvert the plaintiffs’ contentions.

       Indiana Code Section 33-29-2-7 insures that a defendant’s right to a jury is not

involuntarily curtailed by the plaintiff’s choice to file the claim on the small claims docket.

The defendant is given ten days from the date that the complaint is served to request a jury.

Discovery typically could not be completed in such a short time, if it is allowed at all. See

Ind. Small Claims Rule 6 (permitting discovery upon notice and good cause shown and

limiting discovery “to the necessities of the case”). The level of detail required to make a

request for jury trial should reflect the fact that the defendant often will lack detailed

information about the evidence that the plaintiff intends to present. The affidavit should be

specific enough to reflect that there are disputed factual issues of a sort that are appropriate

for determination for a jury. Palmer’s affidavit meets this requirement.

       Palmer’s affidavit also states that the request was made in good faith. Palmer argues

that Indiana Code Section 33-29-2-7 only requires an averment that the request is made in

good faith and does not require a finding by the trial court. We do not agree that the trial

court must invariably take the defendant’s assertion of good faith at face value. In this case,

however, there appears to be no evidence of bad faith. Although the small claims court felt

that the level of specificity did not comply with the statute and therefore was indicative that

the request was not made in good faith, we have concluded that the affidavit meets the

requirements of the statute. Because Palmer’s affidavit was timely filed and complies with

the statute, transfer to the plenary docket for a jury trial is mandatory. See Freeman, 847


                                              12
N.E.2d at 1049 (noting that the word “shall” in a statute is presumptively treated as

mandatory).

                                       Conclusion

       The judgment of the small claims court is reversed, and the case is remanded with the

following instructions: (1) Palmer’s request for a change of judge shall be granted; (2) the

procedures for choosing a new judge shall be implemented; and (3) the case shall be

transferred to the plenary docket.

       Reversed and remanded.

RILEY, J., concurs.

BAILEY, J., concurs in part and dissents in part with opinion.




                                            13
                              IN THE
                    COURT OF APPEALS OF INDIANA

AMY PALMER,                                         )
                                                    )
       Appellant-Defendant,                         )
                                                    )
              vs.                                   )      No. 45A03-1302-SC-31
                                                    )
MARGARET SALES and UNIQUE                           )
INSURANCE COMPANY,                                  )
                                                    )
       Appellees-Defendants.                        )



BAILEY, Judge, concurring in part and dissenting in part

       The majority orders that Palmer’s change of judge motion be granted, that the process

provided in the Trial Rules for a change of judge be followed, and that Palmer’s motion for a

jury trial be granted and the case transferred to the plenary docket. I concur in the result of

the majority’s opinion to the extent it concludes that Palmer properly moved for a jury trial,

and thus orders the trial court on remand to transfer the case to the plenary docket. In light of

that instruction, however, I think it is unnecessary even to address Palmer’s motion for a

change of judge, and I do not think we should do so. Yet because of the criticism by the



                                               14
majority of the opinion I authored in McClure v. Cooper, 893 N.E.2d 337 (Ind. Ct. App.

2008), I write separately to explain my disagreement.

       I concur in the majority’s reasoning and holding on Palmer’s request for a jury trial

under Indiana Code section 33-29-2-7, which relies upon this Court’s prior decision in State

Farm Ins. v. Freeman, 847 N.E.2d 1047 (Ind. Ct. App. 2006). The statute interpreted in the

majority’s opinion provides that a defendant in small claims court may seek a jury trial within

ten days of service of the small claims complaint. This serves to balance the defendant’s due

process rights, in particular the constitutionally-provided right to a jury trial, with the

expressed goal of speedy adjudication of claims in small claims court.

       I note, however, that at trial Palmer represented to the trial court that she sought a jury

trial only on the matter of damages and not on liability. After Sales identified Palmer as the

driver of the vehicle that struck her home, the following exchange between Palmer and the

trial court occurred regarding Palmer’s motion for a jury trial:

       [COURT]:       Okay. Are you going to be disputing liability?

       [PALMER]: No. This is an issue of damages.

(Tr. at 17.)

       Thus, on remand, I would limit the jury proceedings to consideration of the amount of

damages associated with Sales’s claim, leaving undisturbed Palmer’s stipulation to liability.

       I think this conclusion renders unnecessary any further discussion of the change of

judge rules as they apply to the small claims courts. In recognition of our judicial role and as

a matter of policy, it seems wise to me not to reach matters beyond those necessary for


                                               15
resolution of a case. Because we can resolve this appeal without disturbing existing

precedent, based upon the trial court’s erroneous denial of a jury trial, we ought not to

address McClure.

        First, reaching McClure seems to me contrary to the rule of stare decisis and to the

purposes served by the establishment of the Rules Committee in our Trial Rules. Stare

decisis stands for the proposition that “a rule which has been deliberately declared should not

be disturbed by the same court absent urgent reasons and a clear manifestation of error.”

Snyder v. King, 958 N.E.2d 764, 776 (Ind. 2011).3 And while this Court does not recognize

lateral stare decisis, nevertheless, the doctrine’s underlying policy purposes apply here.

        So, too, we should avoid reaching McClure because it has stood for five years without

a contrary declaration by our supreme court or referral of the question to the Rules

Committee, which our supreme court established for the purpose of reviewing,

recommending, and making available for public comment proposed changes to court rules.

See T.R. 80(A), (C), (D) & (E). We should be particularly reticent about revisiting McClure

because, upon remand and transfer to the plenary docket, Palmer will have available to her

the full scope of procedural mechanisms set forth by our Trial Rules. That includes, upon

transfer to the plenary docket, the change-of-judge provisions of Trial Rule 76. Palmer will


        3
          The majority points to Kalwitz v. Kalwitz, 934 N.E.2d 741 (Ind. Ct. App. 2010), for the proposition
that Trial Rules 76(B) and (C) apply without distinction in small claims cases. The Kalwitz case does not
address the majority opinion in McClure. Yet it was unnecessary for the Kalwitz Court to decide what amount
of time was available to the defendants to submit their motion for a change of judge, because the defendants
submitted their motion more than six months after even the thirty-day period the Kalwitz Court applied in that
case and the majority would apply here. Id. at 749-50. Thus, the result in Kalwitz would survive any reading
of Trial Rules 76(B) and (C) in the small claims context.


                                                     16
not be harmed by leaving undisturbed the small claims court’s denial of the motion for a

change of judge, and we should do through dicta as little mischief as possible to standing

interpretations of court rules. See Snyder, 958 N.E.2d at 776.

       I recognize, however, that the majority’s opinion, as well as that of another panel of

this Court, find fault with the holding in McClure, upon which the trial court based its order

denying a change of judge in this case. See A.T. v. G.T., 960 N.E.2d 878, 881 (Ind. Ct. App.

2012) (noting Kirsch, J.’s, dissent in McClure, but distinguishing based upon application of

the Trial Rules in a court of general jurisdiction). And upon reflection, I agree that McClure

may have been wrongly decided, though I reach that conclusion on a different basis from the

majority. Simply put, even though the opinion I authored in McClure narrowly construed the

time limits in Trial Rules 76(B) and (C) (providing for change of judge as a matter of right

and without cause), on reflection I do not think the provisions of those rules properly apply in

the small claims dockets of our state. Therefore, I think McClure likely reached the wrong

conclusion.

       To the extent they do not conflict with the Small Claims Rules, our Trial Rules are

applicable in small claims court. Niksich v. Cotton, 810 N.E.2d 1003, 1005 (Ind. 2004). The

small claims courts were established “with the objective of dispensing speedy justice between

the parties according to the rules of substantive law.” I.C. § 33-28-3-5(d) (providing, with

respect to circuit courts sitting as small claims courts, that small claims trials “shall be

conducted informally … not bound by the statutes or rules of governing practice, procedure,

pleadings, or evidence”); I.C. § 33-29-2-5(d) (applying the rule to superior courts). Trial


                                              17
Rules 76(B) and (C) find no basis in constitutional principles of due process; rather, they

afford litigants in the plenary dockets of our circuit and superior courts an additional tool for

managing the course of litigation before proceeding to trial.

       But Trial Rules 76(B) and (C) work at cross-purposes to the operation of the small

claims courts. Based upon the goals of small claims adjudication, the Small Claims Rules

strictly limit discovery, Ind. Small Claims Rule 6, and except for cause, there is no county-

based change of venue available in Small Claims Courts. I.C. § 33-28-3-6; I.C. § 33-29-2-6;

S.C.R. 12. Further, in small claims cases, a trial date is set at the time of the filing of the

complaint—not, as in plenary courts, by the pleading practices and pre-trial hearings of the

type contemplated by Trial Rule 76(C). S.C.R. 2(B). Also serving the goal of speedy

adjudication, the Small Claims Rules restrict continuances to situations of good cause and

require that only the shortest delay possible be allowed. S.C.R. 9(A). Initiating the lengthy,

often complex process associated with obtaining a special judge can scarcely be said to serve

those interests.

       What is consonant with the Small Claims Rules is the unavailability of any change-of-

judge procedure except for cause—that is, as is necessary to protect the due process rights of

litigants. See, e.g., Ind. Judicial Conduct Rule 2.11(A) (requiring a judge to disqualify him-

or herself “in any proceeding in which the judge’s impartiality might reasonably be

questioned”). To hold otherwise would be to open the door to the application in small claims

court of such procedural mechanisms as the class action provisions of Trial Rule 23 that,

because of their complexity operate at cross-purposes to small claims adjudication—and we


                                               18
would do so simply because the Small Claims Rules are themselves silent on the matter.

       The better approach, I think, is to recognize that though the Small Claims Rules may

be silent on a matter provided for by the Trial Rules, such silence does not call for

application of the Trial Rules as a matter of course. Rather, when the Small Claims Rules are

silent on a particular procedural matter, I think the inquiry must instead center on whether

application of the Trial Rules militates against the purposes of our small claims courts and, if

so, whether failure to apply the Trial Rules in such a situation would deprive a litigant of her

or his due process rights. Where, as here, there is no evidence that application of Trial Rules

76(B) and (C) would serve any role in assuring either litigant due process of law, those rules

should not apply. Or, put another way, since the due process rights of litigants in small

claims courts include a right to seek a new judge on the basis of good cause shown, the

change-of-judge rules in the Trial Rules would serve only to frustrate the small claims courts’

purpose of speedy, efficient adjudication of relatively small dollar-value claims. Therefore,

those Trial Rules should have no application in small claims court, and thus I conclude that

the majority opinion I authored in McClure, even though it narrowly construed Rules 76(B)

and (C), was likely wrongly decided.

       I recognize, too, the majority’s concern about the interpretation of the Trial Rules by

pro se litigants. Though we hold pro se litigants to the same pleading and practice standards

as we do parties represented by counsel, Smith v. Ind. Dept. of Correction, 871 N.E.2d 975,

986 (Ind. Ct. App. 2007), trans. denied, it is fitting that we are necessarily concerned with

whether and how court procedures are capable of being understood by individuals without


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legal training. But deferring to the perceived needs of pro se litigants in interpreting the

timelines of Rule 76(C) seems to me no less problematic than deferring to those needs when

pro se litigants pursue the complex process for seeking a change of judge.

        And all of these concerns lose their impact in this case because here—as in

McClure—the appealing party was represented by counsel. As much as we are concerned

with interpreting the rules in a manner that does not stretch their plain construction, we must

also be wary of allowing the small claims courts to be stripped of their purpose—swift,

efficient resolution of disputes—to benefit the type of procedural gamesmanship Indiana

courts reject. See Outback Steakhouse of Fla., Inc. v. Markley, 856 N.E.2d 65, 77 (Ind.

2006) (citing numerous state and federal cases the use of discovery and motions for default

judgments as traps for unwary litigants). Yet, I recognize that the request for a jury trial in

this case included the required representation of good faith. See I.C. 33-29-2-7 (applying to

small claims proceedings in superior courts); I.C. § 33-28-3-7 (applying to small claims

proceedings in circuit courts).4

        Therefore, for the foregoing reasons, I respectfully concur in part and dissent in part.


        4
           The majority’s opinion expresses concern with the trial court’s apparent conclusion that Palmer’s
motion for a jury trial was not made in good faith. While I do not share that concern, I recognize that the
standard of review applicable in appeals presented in the absence of an appellee’s brief requires only a
demonstration of prima facie error, and thus I concur in the majority’s conclusion that Palmer is entitled to a
jury trial as to the matter of damages.




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