FOR PUBLICATION


ATTORNEYS FOR APPELLANT:

MARCY WENZLER
                                                             FILED
                                                          May 23 2012, 9:27 am
JAMIE ANDREE
JENNIFER PRUSAK                                                   CLERK
Indiana Legal Services, Inc.                                    of the supreme court,
                                                                court of appeals and
                                                                       tax court
Bloomington, Indiana

ATTORNEYS FOR AMICUS CURIAE,
HEALTH AND HUMAN RIGHTS CLINIC:

ALISON M. BECKER, CERTIFIED LEGAL INTERN
FRAN QUIGLEY
Health and Human Rights Clinic
Indiana University, Robert H. McKinney School of Law
Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

LISA REYNOLDS,                                )
                                              )
       Appellant-Defendant,                   )
                                              )
               vs.                            )    No. 77A05-1110-SC-567
                                              )
DANIEL CAPPS,                                 )
                                              )
       Appellee-Plaintiff.                    )


                     APPEAL FROM THE SULLIVAN SUPERIOR COURT
                          The Honorable Robert E. Springer, Judge
                              Cause No. 77D01-1108-SC-603
                                        May 23, 2012


                             OPINION - FOR PUBLICATION


BARNES, Judge

                                      Case Summary

       Lisa Reynolds appeals the trial court’s order requiring her to vacate her apartment.

We reverse.

                                            Issue

       Reynolds raises four issues. We address one dispositive issue, which we restate as

whether Reynolds was denied due process when the trial court ordered her to vacate her

apartment.

                                            Facts

       Reynolds rented an apartment owned by Daniel Capps in Sullivan. On August 29,

2011, Capps filed a small claims complaint. The complaint named Reynolds as the

defendant and listed her address and phone number. On the form complaint, Capps

checked the boxes “Ejectment,” “Damages,” and “Rent.” App. p. 7. The complaint

contained no other information regarding Capps’s claim. The complaint indicated that a

trial date was set for September 13, 2011 during which the claim would “be heard by the

Court at a trial held at the Sullivan Superior Court . . . .” Id. The complaint included fine

print detailing the trial procedures, including the presentation of a defense, the ability to

subpoena witnesses, and the right to a jury trial.




                                              2
        Capps, Reynolds, and a witness for Reynolds appeared at the September 13, 2011

hearing. However, a judge was not present at the September 13, 2011 hearing, and the

hearing was conducted by the court reporter. No witnesses were sworn, and no evidence

was heard. The court reporter verified the nature of the action, and the parties discussed

their allegations, including Reynolds’s concerns about the condition of the premises. The

court reporter repeatedly explained that evidence relating to the parties’ allegations would

be heard later. In her statement of the evidence,1 the court reporter explained, “I advised

the parties the reason for the Initial Hearing was to set a date for the Defendant to vacate

the Plaintiff’s rental property . . . .” Id. at 9. According to the court reporter, when

Reynolds made statements about the problems with the apartment, the court reporter

responded, “all evidence was to be heard at the trial of this matter . . . .” Id.

        The court reporter filled out a pre-signed “INITIAL HEARING/JUDGMENT

ORDER” form requiring Reynolds to vacate the premises. Id. at 5. The form specifically

provided, “The Court FINDS for Plaintiff (s) and order Defendant (s) to vacate the

premises . . . by 9-27-11 6:00 p.m.” Id. Reynolds vacated the apartment and, on

September 30, 2011, a damages hearing conducted by a judge was held.                               At the

conclusion of the hearing, the trial court ordered Reynolds to pay $975 in damages.

Reynolds now appeals.


1
  There is no transcript of this hearing. Reynolds prepared a verified statement of evidence and moved to
certify the statement pursuant to Indiana Appellate Rule 31(A). Although Indiana Appellate Rule 31(B)
allows any party to file a response, the court reporter filed a verified statement of evidence. Referring to
Indiana Appellate Rule 31(C), the trial court certified both statements. Because Reynolds did not object
to the court reporter filing a statement of evidence and relies on that statement in her brief, we also
consider it. However, we are troubled that the trial court judge certified a statement of evidence for
hearing at which he was not present.
                                                     3
                                           Analysis

       Reynolds argues that the manner in which the September 13, 2011 hearing was

conducted violated her due process rights. This is a question of law, which is reviewed

de novo. See Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008).

       Capps has not filed an appellee’s brief. We do not undertake to develop an

argument on his behalf and may reverse upon Reynolds’s prima facie showing of

reversible error. See id. “Prima facie error in this context is defined as, ‘at first sight, on

first appearance, or on the face it.’” Id. (citation omitted).

       As explained in Morton:

                     The Fourteenth Amendment prohibits any state from
              depriving any person of “life, liberty, or property, without due
              process of the law.” U.S. Const. amend. XIV, § 1.
              “Generally stated, due process requires notice, an opportunity
              to be heard, and an opportunity to confront witnesses.” Ind.
              State Bd. of Educ. v. Brownsburg Cmty. Sch. Corp., 842
              N.E.2d 885, 889 (Ind. Ct. App. 2006). The “opportunity to be
              heard” is a fundamental requirement of due process. Mullane
              v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct.
              652, 94 L.Ed. 865 (1950). In Lindsey v. Normet, 405 U.S.
              56, 66, 92 S. Ct. 862, 31 L.Ed.2d 36 (1972), the Supreme
              Court explained that this principle includes “an opportunity to
              present every available defense.”

Id. Our supreme court has also observed, “Due process requires a neutral, or unbiased,

adjudicatory decisionmaker. Scholars and judges consistently characterize provision of a

neutral decision-maker as one of the three or four core requirements of a system of fair

adjudicatory decisionmaking.” Rynerson v. City of Franklin, 669 N.E.2d 964, 967 (Ind.

1996) (quotation omitted).



                                               4
       “Ejectment is an action to restore possession of property to the person entitled to

it.” Morton, 898 N.E.2d at 1199. “Our General Assembly enacted a statutory scheme

that provides for a pre-judgment possession hearing to allow the defendant to controvert a

plaintiff’s affidavit which states why the plaintiff is entitled to possession of the

property.” Id. “The pre-judgment hearing allows for a defendant ‘to controvert the

affidavit or to show cause why the judge should not remove the defendant from the

property and put the plaintiff in possession.’” Id. (quoting Ind. Code 32-30-3-2(a)).

After the plaintiff files an affidavit, the court issues an order to show cause that must

explain the defendant’s rights. Id. at 1199-1200 (citing I.C. § 32-30-3-2(b)). In an

ejectment action, all legal and equitable defenses are provable under a general denial and

any state of facts that would invoke the aid of equity for relief against the claim would be

a defense. Id. at 1200.

       Regardless of whether the applicable statutory requirements were met here, it is

clear that the September 13, 2011 hearing did not satisfy the very minimum due process

requirements—namely that a judge, or someone so authorized, preside over the hearing.

In fact, this hearing was conducted by the court reporter. This violated Reynolds’s right

to a neutral decision-maker. Further, no witnesses were sworn, no evidence was heard,

and Reynolds was not given the opportunity to defend against the ejectment. Reynolds

was then presented with a pre-signed order requiring her to vacate the premises. This

violated her right to present a defense.

       It is an understatement to say that the hearing proceeded from the outset under the

expectation that Capps was entitled to immediate possession of the premises. See id.

                                             5
(observing that the hearing proceeded from the onset under the expectation that the

landlord was entitled to an order of immediate possession and the denial of an

opportunity to present evidence was inconsistent was due process and the statutory

framework). Even taking into account the informality of the small claims process, if the

hearings on evictions are regularly conducted without a judicial officer present, we

pointedly and directly express our concern and expect that situation to be remedied.

Reynolds has made a prima facie showing that the September 13, 2011 hearing was

conducted in a matter that denied her due process. Thus, the order requiring Reynolds to

vacate the premises and the subsequent damages award must be reversed.2

                                          Conclusion

       Because the manner in which the hearing was conducted denied Reynolds due

process, we reverse.

       Reversed.

FRIEDLANDER, J., and MAY, J., concur.




2
  The Health and Human Rights Clinic of the Indiana University Robert H. McKinney School of Law
was granted permission to appear as amicus curiae. Amicus contends that the bifurcated process is
unlawful. Based on our conclusion today, it is not necessary to reach the merits of this question.
                                                6
