FOR PUBLICATION
ATTORNEYS FOR APPELLANT:
MARCY WENZLER
FILED
May 23 2012, 9:27 am
JAMIE ANDREE
JENNIFER PRUSAK CLERK
Indiana Legal Services, Inc. of the supreme court,
court of appeals and
tax court
Bloomington, Indiana
ATTORNEYS FOR AMICUS CURIAE,
HEALTH AND HUMAN RIGHTS CLINIC:
ALISON M. BECKER, CERTIFIED LEGAL INTERN
FRAN QUIGLEY
Health and Human Rights Clinic
Indiana University, Robert H. McKinney School of Law
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LISA REYNOLDS, )
)
Appellant-Defendant, )
)
vs. ) No. 77A05-1110-SC-567
)
DANIEL CAPPS, )
)
Appellee-Plaintiff. )
APPEAL FROM THE SULLIVAN SUPERIOR COURT
The Honorable Robert E. Springer, Judge
Cause No. 77D01-1108-SC-603
May 23, 2012
OPINION - FOR PUBLICATION
BARNES, Judge
Case Summary
Lisa Reynolds appeals the trial court’s order requiring her to vacate her apartment.
We reverse.
Issue
Reynolds raises four issues. We address one dispositive issue, which we restate as
whether Reynolds was denied due process when the trial court ordered her to vacate her
apartment.
Facts
Reynolds rented an apartment owned by Daniel Capps in Sullivan. On August 29,
2011, Capps filed a small claims complaint. The complaint named Reynolds as the
defendant and listed her address and phone number. On the form complaint, Capps
checked the boxes “Ejectment,” “Damages,” and “Rent.” App. p. 7. The complaint
contained no other information regarding Capps’s claim. The complaint indicated that a
trial date was set for September 13, 2011 during which the claim would “be heard by the
Court at a trial held at the Sullivan Superior Court . . . .” Id. The complaint included fine
print detailing the trial procedures, including the presentation of a defense, the ability to
subpoena witnesses, and the right to a jury trial.
2
Capps, Reynolds, and a witness for Reynolds appeared at the September 13, 2011
hearing. However, a judge was not present at the September 13, 2011 hearing, and the
hearing was conducted by the court reporter. No witnesses were sworn, and no evidence
was heard. The court reporter verified the nature of the action, and the parties discussed
their allegations, including Reynolds’s concerns about the condition of the premises. The
court reporter repeatedly explained that evidence relating to the parties’ allegations would
be heard later. In her statement of the evidence,1 the court reporter explained, “I advised
the parties the reason for the Initial Hearing was to set a date for the Defendant to vacate
the Plaintiff’s rental property . . . .” Id. at 9. According to the court reporter, when
Reynolds made statements about the problems with the apartment, the court reporter
responded, “all evidence was to be heard at the trial of this matter . . . .” Id.
The court reporter filled out a pre-signed “INITIAL HEARING/JUDGMENT
ORDER” form requiring Reynolds to vacate the premises. Id. at 5. The form specifically
provided, “The Court FINDS for Plaintiff (s) and order Defendant (s) to vacate the
premises . . . by 9-27-11 6:00 p.m.” Id. Reynolds vacated the apartment and, on
September 30, 2011, a damages hearing conducted by a judge was held. At the
conclusion of the hearing, the trial court ordered Reynolds to pay $975 in damages.
Reynolds now appeals.
1
There is no transcript of this hearing. Reynolds prepared a verified statement of evidence and moved to
certify the statement pursuant to Indiana Appellate Rule 31(A). Although Indiana Appellate Rule 31(B)
allows any party to file a response, the court reporter filed a verified statement of evidence. Referring to
Indiana Appellate Rule 31(C), the trial court certified both statements. Because Reynolds did not object
to the court reporter filing a statement of evidence and relies on that statement in her brief, we also
consider it. However, we are troubled that the trial court judge certified a statement of evidence for
hearing at which he was not present.
3
Analysis
Reynolds argues that the manner in which the September 13, 2011 hearing was
conducted violated her due process rights. This is a question of law, which is reviewed
de novo. See Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008).
Capps has not filed an appellee’s brief. We do not undertake to develop an
argument on his behalf and may reverse upon Reynolds’s prima facie showing of
reversible error. See id. “Prima facie error in this context is defined as, ‘at first sight, on
first appearance, or on the face it.’” Id. (citation omitted).
As explained in Morton:
The Fourteenth Amendment prohibits any state from
depriving any person of “life, liberty, or property, without due
process of the law.” U.S. Const. amend. XIV, § 1.
“Generally stated, due process requires notice, an opportunity
to be heard, and an opportunity to confront witnesses.” Ind.
State Bd. of Educ. v. Brownsburg Cmty. Sch. Corp., 842
N.E.2d 885, 889 (Ind. Ct. App. 2006). The “opportunity to be
heard” is a fundamental requirement of due process. Mullane
v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct.
652, 94 L.Ed. 865 (1950). In Lindsey v. Normet, 405 U.S.
56, 66, 92 S. Ct. 862, 31 L.Ed.2d 36 (1972), the Supreme
Court explained that this principle includes “an opportunity to
present every available defense.”
Id. Our supreme court has also observed, “Due process requires a neutral, or unbiased,
adjudicatory decisionmaker. Scholars and judges consistently characterize provision of a
neutral decision-maker as one of the three or four core requirements of a system of fair
adjudicatory decisionmaking.” Rynerson v. City of Franklin, 669 N.E.2d 964, 967 (Ind.
1996) (quotation omitted).
4
“Ejectment is an action to restore possession of property to the person entitled to
it.” Morton, 898 N.E.2d at 1199. “Our General Assembly enacted a statutory scheme
that provides for a pre-judgment possession hearing to allow the defendant to controvert a
plaintiff’s affidavit which states why the plaintiff is entitled to possession of the
property.” Id. “The pre-judgment hearing allows for a defendant ‘to controvert the
affidavit or to show cause why the judge should not remove the defendant from the
property and put the plaintiff in possession.’” Id. (quoting Ind. Code 32-30-3-2(a)).
After the plaintiff files an affidavit, the court issues an order to show cause that must
explain the defendant’s rights. Id. at 1199-1200 (citing I.C. § 32-30-3-2(b)). In an
ejectment action, all legal and equitable defenses are provable under a general denial and
any state of facts that would invoke the aid of equity for relief against the claim would be
a defense. Id. at 1200.
Regardless of whether the applicable statutory requirements were met here, it is
clear that the September 13, 2011 hearing did not satisfy the very minimum due process
requirements—namely that a judge, or someone so authorized, preside over the hearing.
In fact, this hearing was conducted by the court reporter. This violated Reynolds’s right
to a neutral decision-maker. Further, no witnesses were sworn, no evidence was heard,
and Reynolds was not given the opportunity to defend against the ejectment. Reynolds
was then presented with a pre-signed order requiring her to vacate the premises. This
violated her right to present a defense.
It is an understatement to say that the hearing proceeded from the outset under the
expectation that Capps was entitled to immediate possession of the premises. See id.
5
(observing that the hearing proceeded from the onset under the expectation that the
landlord was entitled to an order of immediate possession and the denial of an
opportunity to present evidence was inconsistent was due process and the statutory
framework). Even taking into account the informality of the small claims process, if the
hearings on evictions are regularly conducted without a judicial officer present, we
pointedly and directly express our concern and expect that situation to be remedied.
Reynolds has made a prima facie showing that the September 13, 2011 hearing was
conducted in a matter that denied her due process. Thus, the order requiring Reynolds to
vacate the premises and the subsequent damages award must be reversed.2
Conclusion
Because the manner in which the hearing was conducted denied Reynolds due
process, we reverse.
Reversed.
FRIEDLANDER, J., and MAY, J., concur.
2
The Health and Human Rights Clinic of the Indiana University Robert H. McKinney School of Law
was granted permission to appear as amicus curiae. Amicus contends that the bifurcated process is
unlawful. Based on our conclusion today, it is not necessary to reach the merits of this question.
6