Reversal: Court must hold hearing on neighbor’s protective order request

A trial court must hold a hearing on a woman’s petition for a protective order against her neighbor, the Indiana Court of Appeals ruled Friday, finding the trial court erred by initially dismissing the petition alleging harassment without a hearing.

In November 2020, K.B. filed for a protective order against B.B., a neighbor who she alleged had repeatedly harassed her and placed her in fear of physical harm. Specifically, K.B. said B.B. had become “visibly angry and aggressive” toward her at a homeowners’ meeting, had “publicly intimidated her” by placing a gargoyle on his roof facing her house, had blocked her driveway and had twice entered her property without permission to intimidate contractors working on her house.

The Marion Superior Court did not hold a hearing but instead dismissed K.B.’s petition sua sponte, finding she had not shown harassment by a preponderance of the evidence. The court also denied K.B.’s motion to correct error that asserted the court should have held a hearing on her petition.

K.B. then appealed, and the Indiana Court of Appeals reversed in her favor in K.B. v. B.B., 21A-PO-99. The court remanded with an order that the trial court hold a hearing on her petition for a protective order against B.B.

According to Judge Edward Najam, Indiana Code § 34-26-5-9(b) requires a hearing if a petition for a protective order alleges harassment. Here, K.B. made such an allegation, he wrote.

“… K.B. was not required to prove the allegations in her petition in order to be entitled to a hearing,” Najam wrote Friday. “A trial court cannot avoid an evidentiary hearing simply by stating that it accepts as true the allegations in the petition for an order for protection and rule on a paper record – whether for or against the petition – without a hearing if the minimum requirements of notice pleading are met. And … K.B. alleged sufficient facts to warrant a hearing.

“In sum, K.B.’s petition alleged that B.B. had engaged in continuing impermissible contact that placed her in fear of her safety and caused her to suffer emotional distress, which states a claim of harassment,” Najam concluded. “… And, contrary to B.B.’s assertion on appeal, we cannot conclude, as a matter of law, that B.B.’s conduct as described by K.B. would not cause a reasonable person to suffer emotional distress.

“Accordingly, we hold that the trial court erred when it dismissed K.B.’s petition and did not hold a hearing at which K.B. could present evidence to support her claim. We therefore reverse the trial court’s judgment and remand with instructions for the court to hold a hearing on K.B.’s petition for an order for protection.”

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