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.