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Small-claims change of judge time limit further divides appellate courts

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How long a small-claims court litigant has to request a change of judge is a question that divided a Court of Appeals panel Monday, where a majority found that an earlier appellate panel majority got it wrong. The dissenting judge authored the prior opinion, and said it shouldn’t be disturbed even if it may have been wrongly decided.

A panel of the Court of Appeals reversed a Lake County case arising from a property damage accident in which damages awarded after a bench trial were less than $3,000. But the judge in the case erroneously ruled a plaintiff’s motion for change of judge untimely. The panel remanded Amy Palmer v. Margaret Sales and Unique Insurance Company, 45A03-1302-SC-31, ordered a change of judge and implementation of procedures for choosing a new judge, and ordered the case moved to the plenary docket.

Judge Terry Crone wrote the majority opinion joined by Judge Patricia Riley that found the law improperly applied and perhaps improperly formulated.

“We agree that the small claims court erred by finding that (Palmer’s) request for a change of judge was untimely. The small claims court had relied on McClure v. Cooper, 893 N.E.2d 337 (Ind. Ct. App. 2008). We disagree with the majority opinion in McClure, which gives the defendant only three days after receiving the notice of claim to request a change of judge. In any event, McClure is distinguishable because the notice of claim sent to Palmer did not properly notify her of the trial date.”

The majority sided with Judge James Kirsch’s dissent in McClure, in which he found that Trial Rule 76(C)(5) should govern the amount of time a litigant has to ask for a change in judge.

Judge Mark Bailey concurred in part and dissented in part, finding that Palmer properly moved for a jury trial but was denied, so the matter should be moved to the plenary docket as the majority did. But Bailey wrote that the panel shouldn’t have reached the change of judge question, and he noted that since Palmer acknowledged liability, the only question for the court should be damages.

“In recognition of our judicial role and as a matter of policy, it seems wise to me not to reach matters beyond those necessary for resolution of a case. Because we can resolve this appeal without disturbing existing precedent, based upon the trial court’s erroneous denial of a jury trial, we ought not to address McClure,” Bailey wrote, noting the rule of stare decisis stands for the proposition of not disturbing findings of the same court absent urgent reasons or clear error.

“(U)pon reflection, I agree that McClure may have been wrongly decided, though I reach that conclusion on a different basis from the majority. Simply put, even though the opinion I authored in McClure narrowly construed the time limits in Trial Rules 76(B) and (C) (providing for change of judge as a matter of right and without cause), on reflection I do not think the provisions of those rules properly apply in the small claims dockets of our state. Therefore, I think McClure likely reached the wrong conclusion,” Bailey wrote.

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