COA: Judge could raise affirmative defense on behalf of pro se defendant

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A small-claims court may decide a case based upon the statute of limitations even if a defendant didn’t raise or mention it at trial but the issue was discussed during trial, the Indiana Court of Appeals ruled in an issue of first impression.

In Wolverine Mutual Insurance Co. v. Jeremy Oliver, No. 20A03-1003-SC-162, Wolverine Mutual Insurance Co. claimed Elkhart Superior Judge Olga Stickel erred in deciding its action against Jeremy Oliver based upon the statute of limitations when Oliver didn’t raise or argue that affirmative defense.

Oliver caused an accident with an insured of Wolverine. The insurer sued him in small-claims court to recover the amount it paid out as a result of the accident. Oliver represented himself. Judge Stickel brought up the fact the case was filed outside of the statute of limitations and allowed Wolverine to submit a memorandum regarding statue of limitations. The judge denied Wolverine’s claim finding it was time-barred by the applicable statute of limitations. She also denied the motion to correct error.

Other jurisdictions have held that trial courts may not sua sponte inject the defense of the statute of limitations where the defendant hasn’t pleaded or argued it, but the Court of Appeals found the opposite based on Indiana’s relaxed rules in the small-claims setting and the provision in Small Claims Rule 4(A) that places the statute of limitations at issue without the need for the defendant to raise it.

The judges also found the instant case to be different from Lechner v. Reutepohler, 545 N.E.2d 1144 (Ind. Ct. App. 1989). Lechner held that a small-claims defendant must litigate the issue of the statute of limitations at trial in order to preserve it for appeal. But in Lechner, the defendants argued the statute of limitations for the first time in a motion to correct error; in the instant case, the issue was raised at trial by the court.

“It seems clear that the primary rationale implicitly underpinning the holding in Lechner is that the failure to inject the issue at trial fatally compromised the plaintiff’s ability to defend against it at a later time. Such would not be an issue in the instant case,” wrote Judge Ezra Friedlander.

The court saw the notice of claim against Oliver had been filed more than two years after the date of the accident, brought it to the attention of Wolverine’s attorney, and gave the company the full opportunity to address the merits of the defense.

Although the panel didn’t want to go so far as to say it was incumbent upon a small-claims court to develop the statute of limitations issue on behalf of pro se litigants, it didn’t see any reason to justify forbidding a small-claims court from sua sponte soliciting argument on an affirmative defense that is explicitly deemed at issue by S.C.R. 4(A). The judges affirmed the small-claims court denial of the claim.


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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.