Herren v. Dishman
| Decision Date | 05 November 2013 |
| Docket Number | No. 18A04–1304–SC–162.,18A04–1304–SC–162. |
| Citation | 1 N.E.3d 697 |
| Parties | Heather HERREN, Appellant–Respondent, v. Jerry DISHMAN, Appellee–Petitioner. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Anthony J. Oliveira, The Law Office of B. Joseph Davis, P.C., Muncie, IN, Attorney for Appellant.
Brandon E. Murphy, Cannon & Bruns, Muncie, IN, Attorney for Appellee.
Appellant–Respondent, Heather Anne Herren (Herren), appeals the small claims court's Order of Replevin granting canine ownership to Appellee–Plaintiff, Jerry Dishman, Jr. (Dishman).
We affirm.
Herren raises one issue on appeal, which we restate as: Whether the small claims court erred by failing to confer full faith and credit to an out-of-state protection order and granting canine ownership to Dishman.
At the center of this case is a dog named Sofie (Sofie), a black and white Chihuahua–Rat Terrier mix breed. In the latter part of 2010, Dishman acquired Sofie from his former girlfriend. In March of 2011, Herren and Dishman became acquainted through the Internet. Three months later, in June of 2011, Herren moved into Dishman's apartment in Cowan, Indiana. In September 2011, Dishman was arrested, and Herren moved out, taking Sofie with her. Dishman was incarcerated for one month, during which time Herren kept Sofie. When Dishman was released, the Sheriff's Department, at Dishman's request, contacted Herren and directed her to return Sofie to Dishman; Herren complied. Shortly thereafter, Herren and Dishman reconciled their relationship.
Herren and Dishman lived together for another year, at which point Herren moved to North Carolina. Dishman remained in Indiana until Herren secured employment and a residence that permitted pets. In October 2012, Dishman—along with Sofie—relocated to North Carolina to be with Herren. Less than two months following Dishman's move to North Carolina, the relationship ended. On November 19, 2012, Dishman took Sofie and moved back to Indiana.
A dispute over Sofie's custody ensued. On December 5, 2012, more than two weeks after Dishman moved out, Herren filed for a Domestic Violence Protective Order (Protective Order) in the District Court of Chowan County, North Carolina (North Carolina Court) because Dishman had threatened Herren that he would return to North Carolina “to ‘gut’ [her] and throw her in a canal.” (Appellant's App. p. 31). Dishman also “threaten[ed] to slit [Sofie's] throat.” (Appellant's App. p. 31). On December 31, 2012, the North Carolina Court concluded that “[t]here is a danger of serious and immediate injury” and granted the Protective Order. (Appellant's App. p. 32). The Protective Order, which is in effect until December 31, 2013, “granted the care, custody, and control of any animal owned, possessed, kept, or held as a pet by either party or minor child residing in the household” to Herren. (Appellant's App. p. 32). Herren thereafter travelled to Indiana and presented the Protective Order to the Muncie Police Department. The police retrieved Sofie from Dishman's apartment, and Herren transported her back to North Carolina.
On January 11, 2013, Dishman filed a Complaint for Replevin with the small claims court in Delaware County, Indiana. Dishman claimed that Herren had wrongfully taken his property and demanded possession of Sofie, as well as damages in the amount of $1,000. On February 8, 2013, Herren filed a motion to dismiss, asserting that the North Carolina Court had already awarded her custody of Sofie. The small claims court summarily denied this motion.
On Valentine's Day of 2013, the small claims court conducted a bench trial; Herren represented herself and Dishman was represented by counsel. Herren and Dishman both testified that they were entitled to Sofie as her rightful owner. Herren asserted that in August 2011—just before the couple's first break-up—Dishman had agreed that Herren could keep Sofie, which Dishman denied, stating he would never have given Sofie away. During her case-in-chief, Herren attempted to present “the whole case file” from the North Carolina Court as evidence that she had received “legal custody of the dog.” (Transcript pp. 28–29). The small claims court denied admission of the file, agreeing with Dishman that it did not “matter[ ] whether there was a protective order in North Carolina.” (Tr. p. 29). The same day, the small claims court issued an Order of Replevin, declaring Dishman to be Sofie's owner.
Herren now appeals.1 Additional facts will be provided as necessary.
“Judgments in small claims actions are ‘subject to review as prescribed by relevant Indiana rules and statutes.’ ” Eagle Aircraft, Inc. v. Trojnar, 983 N.E.2d 648, 657 (Ind.Ct.App.2013) (quoting Ind. Small Claims Rule 11(A)). Indiana has specific rules for small claims cases, but the Indiana Rules of Trial Procedure will generally apply “unless the particular rule in question is inconsistent with something in the small claims rules.” Bowman v. Kitchel, 644 N.E.2d 878, 879 (Ind.1995). In accordance with Trial Rule 52(A), the findings or judgments rendered in a bench trial must be upheld unless clearly erroneous. Deference to the small claims court is essential as the “trials are designed to speedily dispense justice by applying substantive law between the parties in an informal setting.” Vance v. Lozano, 981 N.E.2d 554, 557 (Ind.Ct.App.2012); seeInd.Code § 33–28–3–5(d). This court considers the evidence and related inferences in a light most favorable to the judgment, presuming that the small claims court applied the law correctly and giving “due regard to the trial court's opportunity to judge the credibility of the witnesses.” Eagle Aircraft, Inc., 983 N.E.2d at 657. “However, this deferential standard does not apply to the substantive rules of law, which are reviewed de novo just as they are in appeals from a court of general jurisdiction.” Id. (internal quotation marks omitted). The burden of proof in a small claims civil suit is the same as it would be had the case been filed in a general trial court. Bonecutter v. Discover Bank, 953 N.E.2d 1165, 1169 (Ind.Ct.App.2011), trans. denied.
Herren claims that the small claims court erred in its judgment “because state and federal statute[s] require that the ... North Carolina Protective Order giving custody of the dog to Herren be conferred full faith and credit in Indiana.” (Appellant's Br. p. 7). Under the United States Constitution, “Full Faith and Credit shall be given in each State to the Public Acts, Records and Judicial Proceedings of every other State.” U.S. Const. art. IV, § 1. A state court's judgment “should be afforded the same credit, validity and effect in every other court of the United States which the judgment had in the state where it was pronounced.” In re L.C., 659 N.E.2d 593, 597 (Ind.Ct.App.1995), trans. denied; cert. denied,521 U.S. 1122, 117 S.Ct. 2515, 138 L.Ed.2d 1017 (1997).
The principal of full faith and credit has been codified in Indiana, requiring that authenticated “[r]ecords and judicial proceedings ... shall have full faith and credit given to them in any court in Indiana as by law or usage they have in the courts in which they originated.” I.C. § 34–39–4–3(b). Additionally, Indiana's Civil Protection Order Act (CPOA) specifies that full faith and credit must be conferred upon an out-of-state protection order, so long as the protection order “is facially valid.” I.C. § 34–26–5–17(c). Within her overall argument that the small claims court should have conferred full faith and credit to the Protective Order, Herren presents three sub-arguments that the small claims court erred: (A) by denying her motion to dismiss Dishman's Complaint for Replevin; (B) by excluding the North Carolina Court file from evidence; and (C) by failing to examine the facial validity of the Protective Order. In general opposition to Herren's specific claims, Dishman asserts that the Protective Order is not a final judgment entitled to full faith and credit.
Herren first claims that the small claims court erred because giving full faith and credit to the Protective Order would demand granting her motion to dismiss Dishman's complaint. While the small claims court did not explain its reason for denying Herren's motion to dismiss, Dishman contends that it properly did so based on Herren's failure to sign the motion. Trial Rule 11(A) provides a trial court with discretion to strike an unsigned pleading or motion “as sham and false.” Ind. Trial Rule 11(A). In this case, Herren typed—rather than signed—her name below the contents of the motion. The Indiana Supreme Court has previously concluded that the validity of a signature is not contingent upon signing with any “specific instrument.” Johnson v. State, 622 N.E.2d 172, 174 (Ind.1993). Herren's typed name is therefore a sufficient signing to certify the veracity of her motion.
Dishman also asserts that the small claims court was correct to deny Herren's motion because Herren “did not state a legal basis for dismissal.” (Appellee's Br. p. 5). Herren's motion expressed that dismissal is appropriate because “[t]he case was already heard in [the North Carolina Court].” (Appellant's App. p. 34). Although Herren's motion may not replicate the language of Trial Rule 12(b)(6), it is clear that this argument for dismissal is premised upon a failure to state a claim upon which relief may be granted. For dismissal motions of this type, our review is de novo, and we consider the complaint in the light most favorable to the non-moving party. Watson v. Auto Advisors, Inc., 822 N.E.2d 1017, 1023 (Ind.Ct.App.2005), trans. denied. Our supreme court has previously stated that, in small claims cases, “a motion to dismiss is appropriate if the ‘brief statement of the claim’ reveals that, as a matter of law, the plaintiff cannot prevail.” Niksich v. Cotton, 810...
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