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:                                         FILED
                                                             Jan 30 2013, 9:40 am
KENT HULL
Indiana Legal Services, Inc.                                         CLERK
                                                                   of the supreme court,
South Bend, Indiana                                                court of appeals and
                                                                          tax court




                               IN THE
                     COURT OF APPEALS OF INDIANA

MICHAEL RAMOS,                                      )
                                                    )
       Appellant-Defendant/Counterclaimant,         )
                                                    )
               vs.                                  )       No. 71A03-1203-SC-107
                                                    )
ROBERTSON’S APARTMENTS,                             )
                                                    )
       Appellee-Plaintiff/Counterdefendant.         )


                     APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                          The Honorable Jenny Pitts Manier, Judge
                              Cause No. 71D01-1110-SC-8959



                                         January 30, 2013


      MEMORANDUM DECISION ON REHEARING  NOT FOR PUBLICATION


CRONE, Judge
       Michael Ramos petitions for rehearing of this Court’s memorandum decision in

Ramos v. Robertson’s Apartments, No. 71A04-1203-SC-107 (Ind. Ct. App. Nov. 16, 2012),

in which we affirmed the small claims court’s denial of his request for an appointment of a

guardian ad litem and its conclusion that he waived his request for damages in excess of the

small claims jurisdictional limit. We grant his petition for rehearing solely to address a point

he raises in his argument regarding the waiver for damages in excess of the small claims

jurisdictional limit. However, we affirm our original decision in all respects.

       In our decision, we concluded that Ramos waived his request for damages in excess of

the small claims jurisdictional maximum pursuant to Indiana Small Claims Rule 5(B), which

provides, “Any defendant pursuing a counterclaim to decision waives the excess of the

defendant’s claim over the jurisdictional maximum of the small claims docket and may not

later bring a separate action for the remainder of such claim.” In his petition for rehearing,

Ramos argues that in his answer and counterclaim, he demanded a jury trial and requested

that the case be transferred to the plenary docket. According to Ramos, that is all he needed

to do to transfer the case to the plenary docket of the superior court. In support of his

argument, he cites Bishop v. Housing Authority of South Bend, 920 N.E.2d 772 (Ind. Ct. App.

2010), trans. denied, cert. denied (2011). There, the Housing Authority of South Bend filed

its notice of claim against Bishop in small claims court on October 22, 2008. On November

3, 2008, counsel for Bishop filed an affidavit of indigency and jury trial demand. On

November 13, 2008, the small claims court granted Bishop’s jury trial demand and ordered




                                               2
the matter transferred to the plenary docket. The small claims court also found Bishop

indigent and waived the transfer fee.

       Significantly, the facts in Bishop upon which Ramos relies were reported as part of the

background of the case. The granting of the jury trial demand and transfer to the plenary

docket were not challenged by the Housing Authority of South Bend, and thus the propriety

of these decisions was not in issue. Here, in contrast, the small claims court did not grant

Ramos’s jury trial demand because it found that it was untimely.

       Ramos’s argument ignores Indiana Small Claims Rule 2(B)(10), which provides in

relevant part that a notice of claim shall contain

       [N]otice 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; … 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; … otherwise, the
       party requesting a jury trial shall be deemed to have waived the request.

Ramos also ignores Indiana Code Section 33-31-2-6(b), which reads,

             The 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.

       Here, Robertson’s Apartments filed its notice of claim on October 19, 2011. Our

review of the record on appeal reveals that Ramos did not request a jury trial and transfer to

the plenary docket until he filed his answer and counterclaim on February 16, 2012

(assuming, without deciding, that Ramos filed it by certified mail on that date as he claims).

                                                3
This is months after the notice of claim was filed. Ramos has not provided any information

as to when he received the notice of claim, but he has not argued that he failed to receive

notice or that he filed his answer and counterclaim within ten days of receiving the notice of

claim. Although the record does not indicate exactly when Ramos received notice of claim,

it shows that Robertson’s Apartments served Ramos with a copy of the notice of claim.

Appellant’s App. at 1. The record also shows that Ramos’s attorney appeared on behalf of

Ramos on November 17, 2011. Id. In Bishop, the defendant apparently filed her demand for

jury trial and request for transfer to the plenary docket within ten days of receiving the notice

of claim. Ramos failed to do so here. In addition, Ramos did not file an affidavit as required

by Indiana Code Section 33-31-2-6(b). Finally, Ramos did not pay the transfer fee, establish

indigency, or request permission to proceed without payment of the fee. Accordingly, the

small claims court did not err in concluding that Ramos waived his prayer for damages in

excess of the small claims jurisdictional limit.1 See Stout v. Kokomo Manor Apartments, 677

N.E.2d 1060, 1067 (Ind. Ct. App. 1997) (“Insofar as Stout did not establish her indigency or

request leave to proceed without payment of the deposit, she prevented the possibility of a

transfer of her case to the plenary docket for a trial by jury”).

        We affirm our original decision in all respects.

RILEY, J., and BAILEY, J., concur.




        1
         Each small claims court makes a small claims manual available to all litigants pursuant to Small
Claims Rule 13. The small claims manual is also available on the official Indiana government website.
www.in.gov/judiciary/2710.htm (last visited January 9, 2013).

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