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Judges differ in small claims court action

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The Indiana Court of Appeals affirmed a trial court's decision that the plaintiff had standing to file a small claims notice against his bankruptcy attorney, but the judges disagreed on whether the court erred in denying the attorney's motion for a change of judge.

In Alfred McClure v. Jackie Cooper, No. 86A03-0801-CV-38, attorney Alfred McClure filed a verified motion to dismiss the claim for improper venue and a motion for change of judge. Jackie Cooper brought a small claims suit against McClure for a full refund of money he paid to McClure to represent him in a bankruptcy case.

Citing Hammes v. Brumley, 659 N.E.2d 1021, 1025-30 (Ind. 1995), the appellate court unanimously ruled Cooper had standing to bring his claim, even though he failed to disclose it in his notice of bankruptcy filing because a bankruptcy may be reopened so the debtor may remedy an error, wrote Judge L. Mark Bailey. The Court of Appeals remanded the case with instructions to notify the bankruptcy court and trustee of the trial court's judgment of this opinion.

The appellate court also unanimously agreed the trial court was correct in denying the change of venue motion by McClure. McClure had performed services for Cooper in Warren County, as required under their signed contract for legal services, which makes Warren County a proper venue for Cooper's claim, wrote the judge.

However, the judges did not agree on the dismissal by the trial court of McClure's motion for change of judge. Judges Bailey and Ezra Friedlander agreed with the trial court's decision, finding Trial Rule 76(C)(5) narrows the window of opportunity to seek a change of judge after a trial date has been set. Pursuant to this rule, a party has three days after receiving a notice from the court that a trial date had been set to file a motion for change of judge.

In essence, in small claims cases, a claim also serves to notify the litigants of the trial setting in small claims proceedings in addition to informing the parties of the date, time, court, and relevant documents to bring. Since McClure filed his motion after more than three days had passed after receiving the notice of the claim, the trial court was correct in denying his motion, wrote Judge Bailey.

Judge James Kirsch dissented, finding the trial rule doesn't apply to the instant case. The court didn't hold a hearing, it simply set the matter for trial. Judge Kirsch finds that T.R. 76(C)(5) requires that a party appear at or have a notice of a hearing, that the court at that hearing sets a matter for trial, and the trial date is promptly entered into the Chronological Case System. Because the trial setting wasn't made in course of the conduct of the hearing, he doesn't believe the rule applies.

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  1. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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