Crone, J.
Case Summary
Amy Palmer lost control of a vehicle that she was driving and swerved into Margaret Sales’s yard, causing damage. Sales filed a small claims action against Palmer. Palmer filed a request for a change of judge and a request for a jury trial, both of which were denied. Palmer conceded liability, and a bench trial was held on damages. The small claims court entered a monetary judgment for Sales in an amount equal to an estimate for repairs that she submitted into evidence.
On appeal, Palmer argues that the small claims court erred by denying her request for a change of judge and request for a jury trial. She also argues that the amount of damages was excessive. We agree that the small claims court erred by finding that her 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. Because the request for a change of judge should have been granted, the small claims court was deprived of jurisdiction, and the judgment must be reversed. Therefore, we will not address Palmer’s claim that the amount of damages was excessive. However, because the issue will recur on remand, we will address Palmer’s arguments concerning her request for a jury trial. We conclude that the affidavit that Palmer submitted in support of her request met the level of specificity required by the applicable statute. Therefore, we reverse and remand with instructions to grant Palmer’s request for a change of judge, to implement the procedure for selection of a new judge, and to transfer the case to the plenary docket.
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While speedy resolution is one of the aims of small claims proceedings, they are also meant to be accessible to pro se parties. While we often tell pro se parties that ignorance of the law is not an excuse, pro se parties in a small claims case should be given a reasonable opportunity to discover what the applicable rules are or to decide to hire an attorney. We think that few non-attorneys would be prepared to request a change of judge within three days of receiving the notice of claim, especially because Trial Rule 76(C)(5) on its face would not appear to apply; one would have to know to look beyond the text of the rule and search case law. We also note that the notice of claim is required to notify the defendant that a jury trial must be requested within ten days, Small Claims Rule 2(B)(10), but is not required to provide any information about requesting a change of judge. The unreasonableness of the three-day rule is highlighted by the facts of this case. Palmer was apparently provided with counsel by her insurer, but counsel did not enter an appearance until twelve days (eight business days) after the notice of claim was served. Counsel promptly requested a change of judge, well in advance of the January 2, 2013 trial date. The practical effect of the McClure rule is to foreclose the right to request a change of judge. While the Small Claims Rules might benefit from a specific rule for changes of judge that better balances the aims of speedy resolution and accommodation of pro se parties, in the meantime, we must apply the Trial Rules promulgated by our supreme court as written.
Furthermore, even if we agreed with the holding in McClure, we find that it is distinguishable in this case. In denying Palmer’s request for a change of judge, the small claims court focused on the fact that Palmer could not have reasonably believed that the trial was set for January 2, 2012; the court felt that Palmer should have assumed that the year was filled out incorrectly. While the trial date of January 2, 2012, was obviously a mistake, we cannot agree that the notice adequately informed Palmer that a trial was set for January 2, 2013. The holding in McClure would only come into play when a trial date is set and the defendant is given notice of the date. It is not enough that the notice provide information from which the defendant might guess or proactively discover the actual trial date.
We conclude that Trial Rule 76(C)(5) does not apply, and the request for a change of judge was timely pursuant to Trial Rule 76(C)(1) and should have been granted. See Kalwitz, 934 N.E.2d at 749 (granting of a motion to change judge is automatic if made within the time limit). Therefore, we reverse the judgment of the trial court and remand with instructions that the court grant Palmer’s request for a change of judge and that the procedures for the selection of a new judge be implemented. See A.T. v. G.T., 960 N.E.2d 878, 882 (Ind. Ct. App. 2012) (holding that trial court erred in denying motion for change of judge, reversing ruling on petition for modification of custody because trial court was deprived of jurisdiction, and remanding with instructions to grant change of judge and implement selection of new judge).
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Reversed and remanded.
RILEY, J., concurs.
BAILEY, Judge, concurring in part and dissenting in part
The majority orders that Palmer’s change of judge motion be granted, that the process provided in the Trial Rules for a change of judge be followed, and that Palmer’s motion for a jury trial be granted and the case transferred to the plenary docket. I concur in the result of the majority’s opinion to the extent it concludes that Palmer properly moved for a jury trial, and thus orders the trial court on remand to transfer the case to the plenary docket. In light of that instruction, however, I think it is unnecessary even to address Palmer’s motion for a change of judge, and I do not think we should do so. Yet because of the criticism by the majority of the opinion I authored in McClure v. Cooper, 893 N.E.2d 337 (Ind. Ct. App. 2008), I write separately to explain my disagreement.
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