 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                                  FILED
 establishing the defense of res judicata,                      Feb 06 2013, 9:20 am
 collateral estoppel, or the law of the case.
                                                                       CLERK
                                                                     of the supreme court,
                                                                     court of appeals and
                                                                            tax court




APPELLANT PRO SE:

SHAUN L. STEELE
Pendleton, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

SHAUN L. STEELE,                                   )
                                                   )
       Appellant-Plaintiff,                        )
                                                   )
           vs.                                     )       No. 48A04-1207-SC-383
                                                   )
CORRECTIONAL INDUSTRIAL FACILITY,                  )
                                                   )
       Appellee-Defendant.                         )

                     APPEAL FROM THE MADISON CIRCUIT COURT
                        The Honorable Thomas L. Clem, Magistrate
                             Cause No. 48C05-1112-SC-5328



                                        February 6, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       Shaun L. Steele (“Steele”) obtained a default judgment in Madison Circuit Court

against the Correctional Industrial Facility (“CIF”). The trial court subsequently granted

CIF’s motion to set aside this default judgment, and Steele now appeals. Concluding that

Steele has not established prima facie error in the trial court’s granting of CIF’s motion to

set aside the default judgment, we affirm.

                              Facts and Procedural History

       Steele is an inmate of the Indiana Department of Correction housed in the CIF.

Steele alleged that CIF personnel were responsible for the loss of his personal property

during two separate incidents. In the first incident, which resulted when Steele was

placed in segregation, Steele alleged that the following items were lost: prescription

eyeglasses that cost Steele $625, headphones worth $36.04, and toothpaste that cost $3.22.

In the second incident, which also occurred when Steele was placed in segregation, Steele

claimed that CIF was responsible for the loss of his digital radio that cost Steele $64.

       After his administrative tort claims were denied, Steele filed a small claims action

against CIF on March 30, 2012. A small claims trial date was initially set for May 3,

2012, but this was continued on Steele’s motion. In granting Steele’s continuance, the

trial court noted in the Chronological Case Summary that “the Summons to Defendants

was personally served upon the Defendant on March 30, 2012, but no Appearance for

Defendant has been filed.” Appellant’s App. p. 2. Although it was apparently received

after the above entry in the CCS, CIF also filed a motion to continue on May 3, 2012.

Although the trial court granted Steele’s motion to continue, it did not set a new small



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claims trial date, but instead indicated the case was “continued pending new court date

being scheduled by court administration[.]” Appellant’s App. p. 2.

       On May 9, 2012, Steele filed a motion for entry of default judgment and an

affidavit in support thereof. On May 16, 2012, the trial court granted Steele’s motion and

entered a default judgment in Steele’s favor in the amount of $772.22. On June 4, 2011,

CIF filed a motion to set aside the default judgment, which stated in relevant part:

       Comes now, Defendant, Correctional Industrial Facility, by counsel, and
       respectfully request[s] the Court to correct error and set aside default
       judgment in this case. In support of this motion the Defendant states as
       follows:
       1.     Indiana Trial Rule 59(J) permits the Court to take such action to cure
              a prejudicial error.
       2.     Indiana Trial Rule 55(C) permits the Court to set aside a default
              judgment in accordance with the provisions of Trial Rule 60(A).
       3.     Plaintiff filed a Motion to Continue Trial Date on May 1, 2012.
       4.     Defendant filed a Motion to Continue Trial Date on May 3, 2012.
       5.     On May 3, 2012, the Court granted Plaintiff’s Motion to Continue.
       6.     On May 3, 2012, the Court noted “Cause continued pending new
              court date being scheduled by court administration...”
       7.     On May 15, 2012, Plaintiff moved for a new Trial Date.
       8.     As of this Motion no order was received by Defendant resetting the
              Trial Date.
       9.     On May 30, 2012, it came to the attention of the Defendant that
              Default Judgment had been entered against Defendant and in favor
              of Plaintiff.
       10.    As of this Motion no Order granting Default Judgment has been
              received by Defendant.
       [11]. Although not required by these Trial Rules, Defendant asserts, but is
              not limited to, one meritorious defense that Plaintiff’s property has
              not been lost and may have been contraband.
       12.    Therefore it is proper for this Court to correct error and set aside
              default judgment. . . .

Appellant’s App. pp. 83-84.




                                             3
       Steele filed a response in opposition to this motion, but the trial court granted the

motion to set aside the default judgment on June 19, 2012. Steele filed a motion to

correct error on July 10, 2012, which the trial court denied on July 26, 2012. Steele now

appeals.

                                Discussion and Decision

       We initially observe that no appellee’s brief has been filed in this case. When an

appellee fails to submit a brief, the appellant may prevail by making a prima facie case of

error. Mikel v. Johnston, 907 N.E.2d 547, 551 n.3 (Ind. Ct. App. 2009). This prima facie

error rule protects this court and takes from us the burden of controverting arguments

advanced for reversal, a duty which remains with the appellee. Id. But even under the

prima facie error rule, we are obligated to correctly apply the law to the facts in the

record in order to determine whether reversal is required. Id.

       Indiana Small Claims Rule 10(B) provides for default judgments in small claims

cases. The rule provides in relevant part that default judgment may be entered against a

defendant if the defendant “fails to appear at the time and place specified in the notice of

claim, or for any continuance thereof[.]” Ind. Small Claims Rule 10(B).

       Here, the initial date set for the small claims trial was May 3, 2012. But this trial

date was continued upon Steele’s own motion. And at the time of Steele’s motion for

default judgment, no new trial date had been set. Instead, the trial court simply noted,

“Cause continued pending new court date being scheduled by court administration[.]”

Appellant’s App. p. 2. Then, before any new trial date had been set, Steele filed his

motion for default judgment.      Thus, at the time Steele filed his motion for default

                                             4
judgment, the original trial date had been vacated, and the new hearing date had yet to be

set.

        Accordingly, the defendant could not have “fail[ed] to appear at the time and place

specified in the notice of claim” because that date had been vacated. Nor could the

defendant have failed to appear “for any continuance” of the trial date because that date

had not yet been set.          This means that Steele’s motion for default judgment was

premature, and the trial court should not have granted it in the first place.

        Indiana Small Claims Rule 10(C) provides that, “Upon good cause shown the

court may, within one year after entering a default judgment, vacate such judgment and

reschedule the hearing of the original claim . . . .”1 Here, CIF, although citing the Indiana

Trial Rules instead of the Small Claims Rules, did set forth good cause for setting aside

the trial court’s premature entry of default judgment. Specifically, CIF noted that Steele

had moved for a continuance of the original hearing date and that the trial court had

granted a continuance but had not yet set a new hearing date. See Appellant’s App. p. 83.

Accordingly, the trial court properly granted CIF’s motion to set aside the default

judgment.

                                               Conclusion

        Steele’s motion for default judgment was premature because the original small

claims hearing date had been vacated on Steele’s own motion and no hearing date had yet

been set at the time of Steele’s motion for default judgment. Under the facts and

1
  The remaining text of this rule provides that, after one year of the entry of default, “the judgment debtor
may seek a reversal of the original judgment only upon the filing of an independent action, as provided in
Ind. R. Tr. P. 60(B).” Here, the defendant filed its motion to set aside well within one year.
                                                     5
circumstances presented in this case, we are unable to say that Steele has presented even

prima facie error in the trial court’s decision to set aside its previously-entered default

judgment in favor of Steele.

       Affirmed.

KIRSCH, J., and CRONE, J., concur.




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