MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                     Dec 08 2015, 7:41 am
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                                   ATTORNEYS FOR APPELLEE
Kent Hull                                                ATTORNEY GENERAL OF
Indiana Legal Services, Inc.                             INDIANA
South Bend, Indiana                                      Gregory F. Zoeller
                                                         Attorney General of Indiana

                                                         Kyle Hunter
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Cynthia Liggins,                                         December 8, 2015
Appellant-Plaintiff/Counterdefendant,                    Court of Appeals Case No.
                                                         71A03-1411-SC-390
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
Ralph Smith and Tammeka                                  The Honorable Michael P.
Smith,                                                   Scopelitis, Senior Judge
Appellees-Defendants/Counterplaintiffs                   Trial Court Cause No.
                                                         71D01-1406-SC-4656
        and

Attorney General of Indiana,
Appellee-Intervenor




Court of Appeals of Indiana | Memorandum Decision 71A03-1411-SC-390 | December 8, 2015      Page 1 of 7
      Crone, Judge.


                                             Case Summary
[1]   Cynthia Liggins filed a complaint against her landlords, Ralph and Tammeka

      Smith, who filed a counterclaim against her. After a small claims bench trial,

      the court found against Liggins and in favor of the Smiths on their

      counterclaim. Liggins filed a motion to correct error raising several

      constitutional challenges and claiming that the trial court erred in refusing to

      allow her ten-year-old son to testify. Her motion was deemed denied.


[2]   On appeal, Liggins argues that the trial court erred in denying her motion to

      correct error. As for her constitutional claims, we conclude that they are

      waived because she did not raise them at trial. And as for the trial court’s

      refusal to allow her son to testify, we find no reversible error. Therefore, we

      affirm.


                                 Facts and Procedural History
[3]   Liggins leased a home in South Bend from the Smiths. In June 2014, Liggins

      filed a complaint against the Smiths in St. Joseph Superior Court, alleging that

      they breached the lease by failing to provide a habitable rental property. The

      Smiths filed a counterclaim against Liggins, alleging that she had failed to keep

      the property in good condition. The case was assigned to a magistrate, and a

      senior judge held a small claims bench trial in July 2014. All parties appeared

      pro se. Liggins asked to call her ten-year-old son as a witness, and the senior

      judge denied her request. The senior judge found against Liggins and in favor

      Court of Appeals of Indiana | Memorandum Decision 71A03-1411-SC-390 | December 8, 2015   Page 2 of 7
      of the Smiths, and the magistrate entered final judgment on their counterclaim

      for $4392.


[4]   Liggins filed a motion to correct error alleging due process, due course of law,

      and equal protection violations and challenging the constitutionality of the

      “statute creating” the court. Appellant’s App. at 6. She also alleged that the

      senior judge erred in refusing to allow her son to testify. A magistrate held a

      hearing on the motion, and the senior judge later issued an order stating that

      the motion was deemed denied. Liggins filed a notice of appeal from that

      order. The Smiths did not file an appellees’ brief. Pursuant to Indiana Code

      Section 34-33.1-1-1, the attorney general has intervened for the sole purpose of

      defending the constitutionality of the statutes at issue.


                                     Discussion and Decision
[5]   Liggins contends that the trial court erred in denying her motion to correct

      error. “We review a trial court’s ruling on a motion to correct error for an

      abuse of discretion. An abuse of discretion occurs when the trial court’s

      decision is clearly against the logic and effect of the facts and the circumstances

      before it or if the court misinterprets the law.” Harris v. Harris, 31 N.E.3d 991,

      995 (Ind. Ct. App. 2015) (citation omitted).


            Section 1 – Liggins’s constitutional claims are waived.
[6]   In her motion to correct error, Liggins raised several constitutional claims that

      she did not raise at trial. Our supreme court has stated that “[a] party may not

      raise an issue for the first time in a motion to correct error[.]” Troxel v. Troxel,

      Court of Appeals of Indiana | Memorandum Decision 71A03-1411-SC-390 | December 8, 2015   Page 3 of 7
      737 N.E.2d 745, 752 (Ind. 2000). This applies to constitutional issues as well.

      See Shepherd Props. Co. v. Int’l Union of Painters & Allied Trades, Dist. Council 91,

      972 N.E.2d 845, 849 n.3 (Ind. 2012) (declining to address substantive due

      process claim raised for first time in motion to correct error) (citing Troxel).

      Nevertheless, Liggins argues that an allegedly unconstitutional statute

      governing the appointment of magistrates implicates the trial court’s subject

      matter jurisdiction, which “cannot be waived or conferred by agreement and

      can be raised at any time.” In re Adoption of L.T., 9 N.E.3d 172, 175 (Ind. Ct.

      App. 2014).


[7]   “Subject matter jurisdiction is the power of a court to hear and decide the

      general class of actions to which a particular case belongs.” Id. “An Indiana

      court obtains subject matter jurisdiction only through the Constitution or a

      statute.” Id. St. Joseph Superior Court obtains subject matter jurisdiction

      through Indiana Code Section 33-29-1.5-2, which provides in pertinent part that

      all superior courts have “original and concurrent jurisdiction in all civil

      cases[.]” Consequently, St. Joseph Superior Court had subject matter

      jurisdiction in Liggins’s civil case.


[8]   The crux of Liggins’s constitutional challenge is Indiana Code Section 33-33-

      71-69, which provides in pertinent part that the St. Joseph Superior Court “may

      jointly appoint four (4) full-time magistrates under IC 33-23-5 to serve the court

      using the selection method provided by IC 36-1-8-10(b)(1) or IC 36-1-8-10(b)(3).

      Not more than two (2) of the magistrates appointed under this section may be

      members of the same political party.” Liggins argues that this provision is

      Court of Appeals of Indiana | Memorandum Decision 71A03-1411-SC-390 | December 8, 2015   Page 4 of 7
      special legislation that violates Article 4, Section 23 of the Indiana Constitution

      and thus “the trial court lacked subject matter jurisdiction and its judgment is

      void.” Appellant’s Br. at 6. 1 We respectfully disagree. 2 At most, the statute

      implicates only the magistrates’ authority and not the court’s subject matter

      jurisdiction. See, e.g., Floyd v. State, 650 N.E.2d 28, 32 (Ind. 1994) (“[I]t has

      been the long-standing policy of this court to view the authority of the officer

      appointed to try a case not as affecting the [subject matter] jurisdiction of the

      court. Therefore, the failure of a party to object at trial to the authority of a

      court officer to enter a final appealable order waives the issue for appeal.”). In

      sum, then, all of Liggins’s constitutional challenges are waived. 3


          Section 2 – The trial court did not commit reversible error in
                 refusing to hear testimony from Liggins’s son.
[9]   Liggins also contends that the trial court erred in refusing to allow her son to

      testify against the Smiths, who did not file a brief. “When an appellee does not

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

      that party.” Destination Yachts, Inc. v. Fine, 22 N.E.3d 611, 615 (Ind. Ct. App.




      1
        See IND. CONST. art. 4, § 23 (“In all the cases enumerated in the preceding section, and in all other cases
      where a general law can be made applicable, all laws shall be general, and of uniform operation throughout
      the State.”).
      2
       Our analysis presumes that Liggins has standing to bring her constitutional challenge, which the attorney
      general disputes.
      3
       Liggins notes that, unlike litigants in Marion County, she may not seek de novo review of her small claims
      case in superior court. She asserts that this disparate treatment violates the privileges and immunities clause
      of Article 1, Section 23 of the Indiana Constitution. We express no opinion on the merits of Liggins’s
      constitutional claims.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1411-SC-390 | December 8, 2015               Page 5 of 7
       2014). “Instead, we apply a less stringent standard of review and may reverse if

       the appellant establishes prima facie error. Prima facie error is ‘error at first sight,

       on first appearance, or on the face of it.’” Id. at 615-16 (citations omitted).


[10]   After the Smiths presented their evidence, Liggins stated that she had “a witness

       here” to “clarify all the accusations that [are] being made towards me.” Tr. at

       25. When the trial court asked who the witness was, Liggins replied, “My ten

       year old son.” Id. The court stated, “No. I’m not having a ten year old testify,

       no. Tell me what your ten year old is going to say that you haven’t?” Id.

       Liggins replied, “That everything they just said up here is a lie.” Id.


[11]   On appeal, Liggins acknowledges that small claims courts are not bound by the

       Indiana Rules of Evidence but points out that under Evidence Rule 601,

       “[e]very person is competent to be a witness except as otherwise provided in

       these rules or by statute.” Even assuming, however, that the trial court erred in

       excluding her son’s testimony, we note that “[w]here wrongfully excluded

       testimony is merely cumulative of other evidence presented, its exclusion is

       harmless error.” Spaulding v. Harris, 914 N.E.2d 820, 830 (Ind. Ct. App. 2009),

       trans. denied (2010). Liggins herself claimed that the Smiths were lying, and her

       son’s testimony would not have shed further light on the issue. The trial court

       did not abuse its discretion in denying Liggins’s motion to correct error.

       Therefore, we affirm.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1411-SC-390 | December 8, 2015   Page 6 of 7
[12]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




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