Sanders v. Kerwin
| Decision Date | 18 December 1980 |
| Docket Number | No. 2-780A220,2-780A220 |
| Parties | Walter Lee SANDERS, Defendant-Appellant, v. Courtney M. KERWIN, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Shelley Levine, Kokomo, for defendant-appellant.
Walter Lee Sanders appeals from the denial of his motion to set aside default judgment and supplemental motion for the same purpose. We reverse and remand.
On October 5, 1979, Courtney Kerwin filed a notice of claim in the small claims docket of the Howard County Court claiming $475.00 on account. 1 The notice of claim was duly served upon Sanders by
certified mail return receipt requested as provided by Ind.Rules of Procedure, Small Claims Rule 3. The notice of claim provided:
Sanders did not appear by writing to, by coming in personally, or by lawyer to the court. At the hearing on his motion to set aside the default judgment, he testified that he did not appear because, based upon past experience with the small claims court, he thought he would be notified of a trial date. No notice of any trial date or of any kind other than the notice of claim was ever sent to Sanders. The small claims court entered a default judgment in the amount of $475.00 against Sanders because of his failure to appear. Thereafter, on November 20, 1979, Sanders filed a motion to set aside the default judgment, and on December 13, 1979, he filed a supplement to said motion. In the first motion Sanders contends the judgment was entered by surprise since he was in the process of negotiating with Kerwin and that he had a meritorious defense. 2 The supplemental motion asserts that the notice of claim did not specify the date, place, and time for him to appear as required by Ind.Rules of Procedure, Small Claims Rule 2(B)(3), and that his default was improper since under Ind.Rules of Procedure, Small Claims Rule 10(B)(1) he could be defaulted only for failure to appear at the time and place specified in the notice.
Sanders has raised four issues in his motion to correct errors and brief. We have combined and restated those issues as follows:
1. Was the language of the notice of claim served upon Sanders contrary to the provisions of S.C.R. 2(B)?
2. Did the small claims court err in entering a default judgment against Sanders for his failure to appear in the manner specified in the notice of claim served upon him?
3. Did the court abuse its discretion in denying Sanders' motion to set aside the default judgment?
Before proceeding with a discussion of the issues, we note that Kerwin has not favored us with an appellee's brief. Where the appellee fails to file a brief, if the appellant's brief presents a prima facie showing of reversible error, the judgment will be reversed. Costanzi v. Ryan, (1978) Ind.App., 370 N.E.2d 1333; Michels v. Young Metal Products, Inc., (1971) 148 Ind.App. 502, 267 N.E.2d 572. Therefore, in this case, if Sanders has presented a prima facie showing of reversible error, we must reverse.
The notice of claim served upon Sanders informed him that he must make an appearance in the manner specified within twenty-three (23) days. This is similar to the requirements of summonses in civil actions generally under Ind.Rules of Procedure Trial Rules 4(C) and 6(C). 3 However, S.C.R. 2 pertaining to commencement of small claims actions contains quite different provisions concerning the form of the notice of claim. S.C.R. 2(B) provides:
"(B) FORM OF NOTICE OF CLAIM. The notice of claim shall contain:
(1) The name of the court;
(2) The name, address and telephone number of the claimant and defendant(s);
(3) The place, date and time when the parties are to appear for trial of the claim, which date shall not be less than ten (10) days nor more than forty (40) days after service of said notice of claim;
(4) A brief statement of the nature of the claim and
(a) if the claim arises out of written contract, a copy shall be attached; however, the fact that a copy of such contract is not in the custody of the plaintiff shall not bar the filing of the claim;
(b) if the claim is on account, an itemized statement shall be attached;
(5) A statement that the parties may appear either in person or by an attorney;
(6) An instruction to the defendant that the defendant should bring to the hearing all documents in the possession of or under control of the defendant concerning the claim;
(7) A statement that if the defendant does not wish to dispute the claim he may nonetheless appear for the purpose of allowing the court to establish the method by which the judgment shall be paid;
(8) The name, address and telephone number of the person designated by the court with whom the defendant may communicate if defendant is unable to appear at the time or place designated in the notice;
(9) A statement that a default judgment may be entered against the defendant if he fails to appear ; and
(10) Notice of the defendant's right to a jury trial and that such right is waived unless a jury trial is requested within ten (10) days after receipt of the notice of claim; and
(11) Any additional information which may facilitate proper service." (Emphasis added.)
It is plain from a reading of this rule that the notice of claim must inform the defendant of the place, date, and time to appear for the trial of the claim. This is a specific requirement which is not met by advising the defendant to appear by writing to the court, or coming to the court personally or by lawyer within twenty-three days, and that a trial will be set after the defendant enters an appearance. The rule clearly requires the trial date to be set at the time the claim is filed and for the notice of claim to inform the defendant of the place, date, and time of the trial.
S.C.R. 4 pertains to responsive pleadings and entry of appearance in the following language:
Since no responsive pleading is necessary in small claims court, there is no reason for specifying a time for appearance and filing a responsive pleading as in the case of ordinary civil actions. Further, S.C.R. 4(B) clearly limits the right to request defendants to enter appearances prior to trial to the administrative convenience of the court. But, the same rule clearly provides that a defendant may not be defaulted for failure to enter an appearance. The matter of default is provided for in S.C.R. 10(B) which rule, insofar as applicable provides:
The plain language of the pertinent Small Claims Rules makes it apparent that the notice of claim form served upon Sanders in this case...
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