ILNews

Judges differ in small claims court action

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

ADVERTISEMENT