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. George Grant ripped the mask off of Planned Parenthood in this fantastic read clear back in the 90's. http://www.amazon.com/Grand-Illusions-Legacy-Planned-Parenthood/dp/1581820577 Time has rendered this abortion industry goliath neither kinder nor gentler.

  2. Because one post with all of their names just would not do? https://www.youtube.com/watch?v=EvGJvzwKqg0

  3. Hello Jackie, Please go to 'LILLY BLACK" GRANDPARENTS RIGHTS ADVOCATES NATIONAL DELEGATION of the USA. I have a post there where i will be requesting a meeting with the Indiana Senators. We all know there is power in numbers. Please say you will go or you can private message me. WE MUST NEVER GIVE UP ON OUR GRANDCHILDREN. WE ARE GETTING CLOSER.We have to stop this EMOTIONAL & MENTAL ABUSE. PLEASE JOIN ME IN THIS IMPORTANT FIGHT! THANK YOU JACKIE

  4. Hello KRISTI PAYNE, Please go to 'LILLY BLACK" & send a friend request into the INDIANA-GRANDPARENTS RIGHTS ADVOCATES NATIONAL DELEGATION of the USA.I have a post there i will be requesting a meeting with the Indiana Senators in October. We all know there is power in numbers, PLEASE say you will go!THIS EMOTIONAL & MENTAL ABUSE OF OUR GRANDCHILDREN HAS TO STOP!!!! WE CAN'T GIVE UP NO MATTER HOW MUCH WE ARE BEATEN DOWN. WE ARE GETTING CLOSER!!!!! PLEASE HELP ME BE A VOICE!!! THANK YOU KRISTI PAYNE

  5. Hello Cheryl, Please go to 'LILLY BLACK" & send a friend request into the INDIANA-GRANDPARENTS RIGHTS ADVOCATES NATIONAL DELEGATION of the USA.I have a post there i will be requesting a meeting with the Indiana Senators in October. We all know there is power in numbers, PLEASE say you will go!THIS EMOTIONAL & MENTAL ABUSE OF OUR GRANDCHILDREN HAS TO STOP!!!! WE CAN'T GIVE UP NO MATTER HOW MUCH WE ARE BEATEN DOWN. WE ARE GETTING CLOSER!!!!! THANK YOU CHERYL

ADVERTISEMENT