MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be                                        Feb 19 2018, 9:10 am
regarded as precedent or cited before any
court except for the purpose of establishing                                      CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
the defense of res judicata, collateral                                            and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                              ATTORNEYS FOR APPELLEE
Sharon Lynn Thurman                                           Stephen R. Donham
Indianapolis, Indiana                                         Thrasher Buschmann & Voelkel,
                                                              P.C.
                                                              Indianapolis, Indiana



                                              IN THE
     COURT OF APPEALS OF INDIANA

Sharon Thurman and Jeremiah                                   February 19, 2018
Thurman,1                                                     Court of Appeals Case No.
Appellant-Defendant,                                          49A05-1703-PL-557
                                                              Appeal from the
         v.                                                   Marion Superior Court
                                                              The Honorable
Two Star Inc.,                                                David J. Dreyer, Judge
Appellee-Plaintiff.                                           Trial Court Cause No.
                                                              49D10-1612-PL-42881




1
 Although only Sharon Thurman is a party to this appeal, we include the name of Jeremiah Thurman
because, pursuant to Indiana Appellate Rule 17(A), a party of record in the trial court shall be a party on
appeal.

Court of Appeals of Indiana | Memorandum Decision 49A05-1703-PL-557 | February 19, 2018               Page 1 of 10
      Kirsch, Judge.


[1]   In this interlocutory appeal, Sharon Thurman (“Thurman”) appeals the trial

      court’s grant of prejudgment possession of certain rental real estate owned by

      Two Star, Inc. (“Two Star”). Thurman raises the following restated issue for

      our review: whether the trial court erred in awarding prejudgment possession

      of the real estate to Two Star because, Thurman contends, she was not given

      proper notice of the hearing.


[2]   We affirm.


                                  Facts and Procedural History
[3]   Two Star owns the residential real estate commonly known as 6036 East 42nd

      Street, Indianapolis, Indiana (“the Real Estate”). The Real Estate is zoned for

      D-S residential use only. On November 1, 2012, Two Star, as landlord, and

      Shelton Hickerson (“Hickerson”), as tenant, entered into a nine-year lease (“the

      Lease”). Appellee’s App. Vol. II at 38-41. Two Star leased the Real Estate

      specifically to Hickerson based on his rental application. Id. at 37. Hickerson

      was the only individual listed on the rental application. Id. Thurman,

      Hickerson’s daughter, (f/k/a Sharon Hickerson) was not named as a tenant in

      the Lease, but was listed as an occupant under Section 4 of the Lease. Id. at 38.

      Section 4 of the Lease provided as follows:


              4. USE: The property will be used only as living quarters for the
              following people:



      Court of Appeals of Indiana | Memorandum Decision 49A05-1703-PL-557 | February 19, 2018   Page 2 of 10
              Shelton Hickerson, Jenality Thurman & Sharon Hickerson &
              immediate family.


              $100 additional rent will be due each month for any other
              persons occupying the premises for a period longer than 7 days,
              and written permission must be obtained in advance for
              additional Tenants, or you will be in default and will be charged
              $100 per month for each additional occupant retroactive to the
              day you started your tenancy. Tenant agrees that premises will
              not be used for a day care or babysitting business.


      Id. In Section 15 of the Lease, Maintenance, it stated in pertinent part:

      “Tenant will NOT make any major alterations to the property without prior

      written consent of the Landlord.” Id. at 39.


[4]   On June 27, 2013, Hickerson passed away. Two Star was not informed of

      Hickerson’s passing and, instead, did not learn of Hickerson’s death until

      sometime in mid-2015. When Two Star visited the Real Estate, it discovered

      that alterations had been made to the premises, including converting the garage

      into a bedroom. These alterations had not been approved by Two Star. The

      Real Estate was being used by Thurman as an adult day care facility, and it

      contained multiple beds for numerous unrelated occupants. The Real Estate is

      not zoned for use as a multifamily dwelling, a group living facility, an assisted

      living facility, a daily emergency shelter, a nursing home, transitional living

      quarters, a club or lodge, a community center, or a day care center or nursery

      school, among other things. Id. at 53-67.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1703-PL-557 | February 19, 2018   Page 3 of 10
[5]   On December 19, 2016, Two Star filed its complaint against Thurman for

      eviction, prejudgment possession, and damages and a motion for prejudgment

      possession seeking prejudgment possession of the Real Estate from Thurman.

      The complaint stated that the Lease terminated upon the death of Hickerson,

      who was the sole tenant, and that the Lease was in default because Thurman

      was using the Real Estate as a day care center, had made unauthorized major

      renovations to the Real Estate, and permitted unauthorized occupants to reside

      at the Real Estate without the payment of the additional occupant rental fee, all

      of which was in violation of the Lease. Id. at 9-11.


[6]   On December 21, 2016, the trial court issued an order to appear and show

      cause, setting a hearing on the motion for prejudgment possession for January

      10, 2017. The order also advised Thurman that she could file an affidavit on

      her behalf with the court, could appear and present testimony in person at the

      hearing, could file with the court a written request to stay the delivery of the

      Real Estate pursuant to statute, and if she filed a bond prior to the hearing, she

      could retain the possession of the property pending final judgment. Id. at 21-22.

      The order also stated that if Thurman failed to appear at the hearing, Two Star

      may be granted the prejudgment order of possession. Id. at 22.


[7]   Two Star filed a motion to continue the January 10 hearing date and sent a

      copy of its motion to Thurman, and Thurman was personally served with the

      complaint and summons on December 28, 2016. On January 8, 2017, the trial

      court granted Two Star’s motion to continue the hearing and reset the

      prejudgment possession hearing for January 25, 2017. The trial court’s order

      Court of Appeals of Indiana | Memorandum Decision 49A05-1703-PL-557 | February 19, 2018   Page 4 of 10
      included a second order to appear, which contained substantially the same

      language as the first order to appear. The second order to appear was served

      upon Thurman on January 18, 2017. On January 20, 2017, Thurman filed a

      document, which among other things, requested a continuance of the January

      25 hearing date.


[8]   On January 25, 2017, Two Star and its counsel arrived for the hearing and were

      told that it would be continued. Although Thurman’s request for a continuance

      had not yet been formally granted, she did not appear for the January 25

      hearing. On February 7, 2017, the trial court formally granted Thurman’s

      motion for a continuance and reset the hearing for February 22, 2017. On

      February 22, Two Star and its counsel appeared for the hearing, and Thurman

      failed to appear. The trial court allowed Two Star to proceed with presenting

      evidence in support of its motion for prejudgment possession. At the

      conclusion of the presentation of evidence, the trial court indicated that it

      would grant Two Star’s motion, and on February 24, 2017, it issued an order

      for prejudgment possession (“the Prejudgment Possession Order”).


[9]   Following the Prejudgment Possession Order, Thurman filed several motions

      and other documents with the trial court. In a motion seeking to recuse the trial

      judge, Thurman admitted that she was aware that a continuance of the January

      25 hearing had been granted. Id. at 70. Thurman did not relinquish possession

      of the Real Estate, so Two Star sought a writ of assistance, which was issued.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1703-PL-557 | February 19, 2018   Page 5 of 10
       Thurman now appeals the trial court’s interlocutory Prejudgment Possession

       Order.2


                                        Discussion and Decision
[10]   Thurman argues that the trial court erred in granting the Prejudgment

       Possession Order because she did not have notice of the hearing. She contends

       that she was not informed of the date of the hearing and that the trial court

       erred in not ensuring that she had notice of the hearing on Two Star’s motion

       for prejudgment possession. Thurman asserts that the order is void because it

       was entered without due process since she was not given notice or the

       opportunity to be heard and defend herself.3


[11]   It is generally acknowledged that procedural due process includes notice and an

       opportunity to be heard. Bruno v. Wells Fargo Bank, N.A., 850 N.E.2d 940, 948

       (Ind. Ct. App. 2006). A party is denied due process when he is denied the

       opportunity to argue his case to the trial court after that court has determined it

       would hear argument. Id. This is particularly true for service of process and




       2
        After filing her notice of appeal, Thurman sought a stay of the Prejudgment Possession Order and the writ
       of assistance, which was granted by the trial court.
       3
         We note that Thurman makes reference to the judgment being void because it was entered without due
       process and cites to cases discussing motions for relief from judgment. Appellant’s Br. at 9-11. However, in
       the present case, Thurman is not appealing from a final judgment; this is an interlocutory appeal of the trial
       court’s grant of the Prejudgment Possession Order. Therefore, any arguments concerning final judgments are
       not applicable here.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1703-PL-557 | February 19, 2018          Page 6 of 10
       other such notice of initial pleadings, but it is also true of proceedings within a

       lawsuit. Id.


[12]   Two Star contends that Thurman was not denied due process because she failed

       to keep herself informed of the trial court proceedings as she was bound to do

       under the local rules of Marion County. We agree. Marion County LR49-

       TR58-217(C), Duties of Attorneys on Entries of Judgments, states:


               Obligation to Keep Themselves Informed of Case Status.
               Counsel and parties to a suit should keep themselves informed of
               all steps taken in all matters pending before the Court, and are
               bound by the Court’s actions, including but not limited to
               rulings, notice of trial date settings, and current position of cases
               on jury trial calendar, all without special or additional oral or
               written notice by the Court.


       Attorneys have a general duty to regularly check the court records and monitor

       the progress of pending cases. City of Indianapolis v. Hicks, 932 N.E.2d 227, 231

       n.5 (Ind. Ct. App. 2010), trans. denied. Although Thurman is a pro se litigant,

       she is still “held to the same established rules of procedure that trained counsel

       is bound to follow.” Gunashekar v. Grose, 915 N.E.2d 953, 955 (Ind. 2009).


[13]   Thurman failed to comply with Marion County LR49-TR58-217(C) because

       she did not follow up on the status of her motion to continue that she had filed

       to continue the January 25, 2017 hearing and did not keep herself informed of

       all the steps taken in her pending case. The record shows that Thurman knew

       of the January 25, 2017 hearing at least one week in advance of the same as she

       was served on January 18, 2017 with the order setting the hearing date.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1703-PL-557 | February 19, 2018   Page 7 of 10
       Appellee’s App. Vol. II at 29-31. Thurman was also aware that she had filed a

       motion requesting that the January 25 hearing be continued. Id. at 32-33.

       Although she had filed this motion, she did not appear in court on January 25,

       2017, did not file anything further with the court, and never made any effort to

       find out the new hearing date, which was eventually set for February 22, 2017.

       If Thurman had complied with the cited local rule and kept herself informed of

       the status of her case, in particular the January 25, 2017 hearing and her

       requested continuance of the same, she would have been able to discover the

       rescheduled February 22, 2017 hearing date. Therefore, any alleged notice

       issue argued by Thurman would not have occurred had Thurman followed the

       local rules. Local rules are binding on the courts and litigants. Gill v. Evansville

       Sheet Metal Works, Inc., 970 N.E.2d 633, 646 (Ind. 2012). The intended function

       of local rules is to serve “as a means of obtaining the end of orderly and speedy

       justice.” Id. Orderly and speedy justice cannot be obtained if Two Star must

       continue to wait to obtain possession of the Real Estate and Thurman is not

       required to comply with local rules.


[14]   Additionally, Thurman is still held to the requirement of keeping herself

       apprised of the status of her case, even in the situation of any alleged absence of

       notice of the new hearing date by the trial court. See LR49-TR58-217(C)

       (“[P]arties . . . are bound by the Court’s actions, including but not limited to . . .

       notice of trial date settings . . . all without special or additional oral or written

       notice by the Court.”). Further, Thurman cannot argue that she was not aware

       of the local rules as a defense. Ignorance of the law is no excuse. Bellwether


       Court of Appeals of Indiana | Memorandum Decision 49A05-1703-PL-557 | February 19, 2018   Page 8 of 10
       Props., LLC v. Duke Energy Ind., Inc., 87 N.E.3d 462, 467 (Ind. 2017).

       Accordingly, Thurman should have followed the local rule and kept herself

       apprised of the status of her case, especially in light of the fact that she had

       requested a continuance of the January 25 hearing date and never followed up

       to learn whether the continuance had been granted and to what date the hearing

       had been rescheduled.


[15]   Additionally, Thurman was not denied an opportunity to oppose Two Star’s

       request for prejudgment possession of the Real Estate. In both the initial order

       to appear and the second order to appear, Thurman was made aware that she

       could file an affidavit on her behalf with the trial court that opposed Two Star’s

       motion for prejudgment possession. Appellee’s App. Vol. II at 21-22, 27-28. She

       was therefore informed of other actions she could have taken, besides appearing

       in court, to defend against Two Star’s motion for prejudgment possession.

       However, Thurman did not file any affidavits with the trial court. Thurman

       had from January 18, 2017, when she was served with the second order to

       appear, until February 22, 2017, to file an affidavit opposing Two Star’s

       affidavit in support of its motion for prejudgment possession. Indiana Code

       section 32-30-3-2 does not require that Thurman present her evidence and

       testimony at the actual hearing, but instead, allows her to file affidavits in

       advance or in lieu of attending the hearing. Ind. Code § 32-30-3-2(b)(2).

       Thurman did not take advantage of this opportunity and cannot now complain

       that she was not given an opportunity to oppose, be heard, or defend against

       Two Star’s motion. Based on the above reasoning, we conclude that the trial


       Court of Appeals of Indiana | Memorandum Decision 49A05-1703-PL-557 | February 19, 2018   Page 9 of 10
       court did not err in granting Two Star’s motion for prejudgment possession of

       the Real Estate.


[16]   Affirmed.


[17]   Bailey, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1703-PL-557 | February 19, 2018   Page 10 of 10
