MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              Dec 29 2015, 8:12 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.


APPELLANT PRO SE                                         ATTORNEY FOR APPELLEE
Chris E. Harkins                                         J. Stephen Smith
Bunker Hill, Indiana                                     Graydon Head & Ritchey LLP
                                                         Fort Mitchell, Kentucky


                                          IN THE
    COURT OF APPEALS OF INDIANA

Chris E. Harkins,                                        December 29, 2015
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         15A05-1505-SC-499
        v.                                               Appeal from the Dearborn
                                                         Superior Court No. 1
Quick-Cash Pawn, Inc.,                                   The Honorable Jonathan N.
Appellee-Defendant.                                      Cleary, Judge
                                                         Trial Court Cause No.
                                                         15D01-1503-SC-260



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A05-1505-SC-499 | December 29, 2015      Page 1 of 8
                                          Case Summary
[1]   Chris E. Harkins (“Harkins”), pro se, appeals the trial court’s dismissal of his

      small claims action. Harkins presents one issue for review, which we restate as:

      whether the trial court’s dismissal effectively denied Harkins his constitutional

      right to bring a civil action. We reverse and remand for further proceedings.



                            Facts and Procedural History
[2]   On March 5, 2015, while incarcerated in the Miami Correctional Facility,

      Harkins, pro se, filed a small claims action against Quick-Cash Pawn, Inc.

      (“Quick-Cash”), alleging that Quick-Cash “negligently, intentionally and

      wrongfully took possession of” a necklace Harkins pawned in 2014. (App. 9.)

      Harkins also filed a Verified Petition for an Order Waiving Filing Fees and

      Court Costs, to which he attached a report showing his prison trust account

      transaction history. The trial court granted Harkins’s petition to waive fees and

      costs, and set the claim for a bench trial on May 6, 2015.


[3]   On April 17, 2015, Harkins requested that the court issue a subpoena to Quick-

      Cash to produce certain documents related to his pawn transactions. Harkins

      also requested a continuance so that the documents could be produced prior to

      trial. The subpoena was issued to Quick-Cash, but the trial court denied his

      motion to continue. Then, on April 22, 2015, counsel for Quick-Cash entered




      Court of Appeals of Indiana | Memorandum Decision 15A05-1505-SC-499 | December 29, 2015   Page 2 of 8
      an appearance and filed a motion to continue. The trial court granted Quick-

      Cash’s motion, and the bench trial was rescheduled for May 13, 2015.1


[4]   In a letter dated April 29, 2015 and filed May 4, 2015, Harkins, having not yet

      received the trial court’s order granting Quick-Cash’s motion to continue,

      objected to the motion. In the same letter, Harkins provided the court with

      various exhibits and documents related to his case “in the event a telephonic

      hearing takes place.” (App. 25.) The trial court apparently treated Harkins’s

      letter in part as a motion to participate via telephone.2 In an order dated May 4,

      2015, the trial court “notifie[d] Plaintiff that the request to participate by

      telephone is denied.” (App. 45.)


[5]   Harkins next filed a letter and motion asking the court to issue a transport order

      so that he could attend the bench trial. In the alternative, he requested to attend

      via teleconference, video, or telephone using equipment available from the

      prison library. Although not filed until May 11, 2015, the letter and motion

      were dated April 24, 2015, thus predating his previously-filed letter.3


[6]   The bench trial was held as scheduled on May 13, 2015. At the outset, the trial

      court noted that Harkins filed his motion for transport only two days before




      1
       Quick-Cash’s motion and the court’s order are not included in the Appendix, but were recorded in the
      Chronological Case Summary (“CCS”).
      2
       The CCS entry for May 4, 2015 reads in part: “motion to continue and participate in hearing telephonically
      w/exhibits filed by [plaintiff.]” (App. 2).
      3
       It is unclear from the record why the letter and motion dated April 24 were not filed for over two weeks,
      while other letters and motions from Harkins were filed more quickly.

      Court of Appeals of Indiana | Memorandum Decision 15A05-1505-SC-499 | December 29, 2015           Page 3 of 8
      trial and that the court “currently does not have the technology to do a

      teleconference hearing[.]” (Tr. 1.) The court therefore denied his motion for

      transport and request to attend via teleconference, video, or telephone. Because

      Harkins was not present, Quick-Cash then orally moved to dismiss. The court

      granted the motion to dismiss and entered a written judgment order stating that

      Harkins did not appear and the claim was dismissed without prejudice.


[7]   By a letter and attachments dated May 12, 2015 and filed May 18, 2015,

      Harkins filed a number of motions based on the trial court’s May 4, 2015 order

      denying his request to appear via telephone.4 Harkins reasoned that due to the

      court’s order, he was “precluded from prosecuting his claim in the traditional

      manner[.]” (App. 51.) He therefore moved for leave to argue his claim via a

      written brief and accompanying memorandum of law, serve interrogatories in

      lieu of eliciting testimony at trial, and amend his complaint to provide the court

      further information about his claim. On May 19, 2015, the trial court denied

      the motions because “[t]his cause number was dismissed on May 13, 2015.”

      (App. 64.)


[8]   Harkins now appeals the trial court’s dismissal of his small claim.



                                    Discussion and Decision




      4
          Harkins did not receive the court’s May 4 order until May 12.


      Court of Appeals of Indiana | Memorandum Decision 15A05-1505-SC-499 | December 29, 2015   Page 4 of 8
[9]    The Indiana Small Claims Rules govern all small claims proceedings in Indiana

       courts. Ind. Small Claims Rule 1(A). “Small claims courts and the small

       claims divisions of general jurisdiction courts are intended to be places where

       justice may be dispensed inexpensively and promptly.” Flint v. Hopkins, 720

       N.E.2d 1230, 1231-32 (Ind. Ct. App. 1999). Small Claims Rule 10(A) provides:

       “If the plaintiff fails to appear at the time and place specified in the notice of

       claim, or for any continuance thereof, the court may dismiss the action without

       prejudice.” Rule 10(A) “authorizes dismissal without prejudice when a plaintiff

       has once failed to appear for a hearing.” Wood v. Zeigler Bldg. Materials, Inc., 436

       N.E.2d 1168, 1170 (Ind. Ct. App. 1982).


[10]   Harkins failed to appear at the scheduled bench trial (although not because of a

       lack of diligence on his part), and the trial court dismissed the claim without

       prejudice as authorized by Small Claims Rule 10(A). Nevertheless, Harkins

       argues that the trial court’s orders denying his motions – for transport, to attend

       via teleconference, video, or telephone, and later to argue his claim via a

       written brief – effectively denied him his constitutional right to bring a civil

       action.


[11]   Article 1, Section 12 of the Indiana Constitution provides, in part: “All courts

       shall be open; and every person, for injury done to him in his person, property,

       or reputation, shall have remedy by due course of law.” A prisoner clearly has

       a constitutional right to bring a civil action against persons who have injured

       him. Zimmerman v. Hanks, 766 N.E.2d 752, 757 (Ind. Ct. App. 2002).



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       “Moreover, implicit in this right to bring a civil action is the right to present

       one’s claim to the trial court.” Id.


[12]   Here, the trial court rightly dismissed Harkins’s motion for transport order

       because it was not within the court’s authority to secure his attendance at a civil

       action unrelated to the case resulting in incarceration. See id. (citing Hill v.

       Duckworth, 679 N.E.2d 938, 939 (Ind. Ct. App. 1997). But the trial court also

       denied Harkins’s request to participate telephonically with submitted exhibits

       and his formal motion to proceed via teleconference, video, or telephone in lieu

       of transport. Immediately after receiving notice of the court’s first denial and

       realizing that the court’s order effectively prevented him from prosecuting his

       claim “in the traditional manner” (App. 51), Harkins diligently moved for leave

       to argue his claim via a written brief and accompanying memorandum of law.

       Nevertheless, the court denied his motions because the cause had already been

       dismissed for failure to appear, despite the court’s knowledge that Harkins was

       a prisoner who had been denied the ability to participate via teleconference,

       video, or telephone.5




       5
         Harkins contends that his motions mailed on May 12, 2015, but not filed until May 18, 2015, were subject
       to the prison mailbox rule. The prison mailbox rule “provides that pro se filings from an incarcerated litigant
       are considered filed at the time they are delivered to prison authorities for forwarding to the court.” Lawrence
       v. State, 915 N.E.2d 202, 205 (Ind. Ct. App. 2009), trans. denied. In Indiana, the prison mailbox rule has not
       explicitly been extended to civil filings. However, because we hold that the court’s orders collectively denied
       Harkins an opportunity to present his case, we decline to reach the question of whether the prison mailbox
       rule applies to his filings.

       Court of Appeals of Indiana | Memorandum Decision 15A05-1505-SC-499 | December 29, 2015              Page 6 of 8
[13]   As this court has previously observed, a “trial court should not be able to

       deprive a prisoner of his constitutional right to maintain a civil action by

       denying motions that the court can properly deny while concurrently ignoring

       the prisoner’s requests for other methods that would allow the prisoner to

       prosecute from prison.” Zimmerman, 766 N.E.2d at 758. By denying Harkins’s

       motions, the court effectively denied him his constitutional right to prosecute

       his small claim.


[14]   In this case, the statute of limitations governing Harkins’s claim will likely

       expire before he is released from prison and able to prosecute his claim in

       person.6 Therefore, some means must exist by which Harkins can prosecute his

       claim while still incarcerated so that his constitutional right is not denied. Id.

       At the bare minimum, the court could have granted Harkins’s request to submit

       the case by documentary evidence. But when widely-used cell phone

       technology enables ordinary citizens to communicate via video in real time, we

       are hard-pressed to believe that the trial court could not find some way for

       Harkins to participate remotely so as to provide him with meaningful access to

       the courts and preserve his constitutional right. Nonetheless, we reserve for the

       trial court the decision as to how the hearing should be conducted on remand.

       See Murfitt v. Murfitt, 809 N.E.2d 332, 335 (Ind. Ct. App. 2004) (after finding

       that an incarcerated defendant was denied the ability to defend his interests in




       6
        Counsel for Quick-Cash informed the trial court at the bench trial that “Mr. Harkins is incarcerated until
       about two thousand twenty five[.]” (Tr. 1.)

       Court of Appeals of Indiana | Memorandum Decision 15A05-1505-SC-499 | December 29, 2015            Page 7 of 8
       divorce proceedings, remanding the case but reserving to the trial court the

       method for conducting a new hearing).



                                               Conclusion
[15]   By dismissing Harkins’s case for failure to appear while concurrently denying

       his motions to proceed by alternate means, the trial court effectively denied

       Harkins his constitutional right to prosecute his small claim. We reverse the

       trial court’s dismissal and order the court to provide Harkins some manner of

       prosecuting his claim.


[16]   Reversed and remanded.


       Vaidik, C.J., and Crone, J., concur.




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