Sharon Thurman and Jeremiah Thurman v. Two Star Inc. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 19 2018, 9:10 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Sharon Lynn Thurman Stephen R. Donham
Indianapolis, Indiana Thrasher Buschmann & Voelkel,
P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sharon Thurman and Jeremiah February 19, 2018
Thurman,1 Court of Appeals Case No.
Appellant-Defendant, 49A05-1703-PL-557
Appeal from the
v. Marion Superior Court
The Honorable
Two Star Inc., David J. Dreyer, Judge
Appellee-Plaintiff. Trial Court Cause No.
49D10-1612-PL-42881
1
Although only Sharon Thurman is a party to this appeal, we include the name of Jeremiah Thurman
because, pursuant to Indiana Appellate Rule 17(A), a party of record in the trial court shall be a party on
appeal.
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Kirsch, Judge.
[1] In this interlocutory appeal, Sharon Thurman (“Thurman”) appeals the trial
court’s grant of prejudgment possession of certain rental real estate owned by
Two Star, Inc. (“Two Star”). Thurman raises the following restated issue for
our review: whether the trial court erred in awarding prejudgment possession
of the real estate to Two Star because, Thurman contends, she was not given
proper notice of the hearing.
[2] We affirm.
Facts and Procedural History
[3] Two Star owns the residential real estate commonly known as 6036 East 42nd
Street, Indianapolis, Indiana (“the Real Estate”). The Real Estate is zoned for
D-S residential use only. On November 1, 2012, Two Star, as landlord, and
Shelton Hickerson (“Hickerson”), as tenant, entered into a nine-year lease (“the
Lease”). Appellee’s App. Vol. II at 38-41. Two Star leased the Real Estate
specifically to Hickerson based on his rental application. Id. at 37. Hickerson
was the only individual listed on the rental application. Id. Thurman,
Hickerson’s daughter, (f/k/a Sharon Hickerson) was not named as a tenant in
the Lease, but was listed as an occupant under Section 4 of the Lease. Id. at 38.
Section 4 of the Lease provided as follows:
4. USE: The property will be used only as living quarters for the
following people:
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Shelton Hickerson, Jenality Thurman & Sharon Hickerson &
immediate family.
$100 additional rent will be due each month for any other
persons occupying the premises for a period longer than 7 days,
and written permission must be obtained in advance for
additional Tenants, or you will be in default and will be charged
$100 per month for each additional occupant retroactive to the
day you started your tenancy. Tenant agrees that premises will
not be used for a day care or babysitting business.
Id. In Section 15 of the Lease, Maintenance, it stated in pertinent part:
“Tenant will NOT make any major alterations to the property without prior
written consent of the Landlord.” Id. at 39.
[4] On June 27, 2013, Hickerson passed away. Two Star was not informed of
Hickerson’s passing and, instead, did not learn of Hickerson’s death until
sometime in mid-2015. When Two Star visited the Real Estate, it discovered
that alterations had been made to the premises, including converting the garage
into a bedroom. These alterations had not been approved by Two Star. The
Real Estate was being used by Thurman as an adult day care facility, and it
contained multiple beds for numerous unrelated occupants. The Real Estate is
not zoned for use as a multifamily dwelling, a group living facility, an assisted
living facility, a daily emergency shelter, a nursing home, transitional living
quarters, a club or lodge, a community center, or a day care center or nursery
school, among other things. Id. at 53-67.
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[5] On December 19, 2016, Two Star filed its complaint against Thurman for
eviction, prejudgment possession, and damages and a motion for prejudgment
possession seeking prejudgment possession of the Real Estate from Thurman.
The complaint stated that the Lease terminated upon the death of Hickerson,
who was the sole tenant, and that the Lease was in default because Thurman
was using the Real Estate as a day care center, had made unauthorized major
renovations to the Real Estate, and permitted unauthorized occupants to reside
at the Real Estate without the payment of the additional occupant rental fee, all
of which was in violation of the Lease. Id. at 9-11.
[6] On December 21, 2016, the trial court issued an order to appear and show
cause, setting a hearing on the motion for prejudgment possession for January
10, 2017. The order also advised Thurman that she could file an affidavit on
her behalf with the court, could appear and present testimony in person at the
hearing, could file with the court a written request to stay the delivery of the
Real Estate pursuant to statute, and if she filed a bond prior to the hearing, she
could retain the possession of the property pending final judgment. Id. at 21-22.
The order also stated that if Thurman failed to appear at the hearing, Two Star
may be granted the prejudgment order of possession. Id. at 22.
[7] Two Star filed a motion to continue the January 10 hearing date and sent a
copy of its motion to Thurman, and Thurman was personally served with the
complaint and summons on December 28, 2016. On January 8, 2017, the trial
court granted Two Star’s motion to continue the hearing and reset the
prejudgment possession hearing for January 25, 2017. The trial court’s order
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included a second order to appear, which contained substantially the same
language as the first order to appear. The second order to appear was served
upon Thurman on January 18, 2017. On January 20, 2017, Thurman filed a
document, which among other things, requested a continuance of the January
25 hearing date.
[8] On January 25, 2017, Two Star and its counsel arrived for the hearing and were
told that it would be continued. Although Thurman’s request for a continuance
had not yet been formally granted, she did not appear for the January 25
hearing. On February 7, 2017, the trial court formally granted Thurman’s
motion for a continuance and reset the hearing for February 22, 2017. On
February 22, Two Star and its counsel appeared for the hearing, and Thurman
failed to appear. The trial court allowed Two Star to proceed with presenting
evidence in support of its motion for prejudgment possession. At the
conclusion of the presentation of evidence, the trial court indicated that it
would grant Two Star’s motion, and on February 24, 2017, it issued an order
for prejudgment possession (“the Prejudgment Possession Order”).
[9] Following the Prejudgment Possession Order, Thurman filed several motions
and other documents with the trial court. In a motion seeking to recuse the trial
judge, Thurman admitted that she was aware that a continuance of the January
25 hearing had been granted. Id. at 70. Thurman did not relinquish possession
of the Real Estate, so Two Star sought a writ of assistance, which was issued.
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Thurman now appeals the trial court’s interlocutory Prejudgment Possession
Order.2
Discussion and Decision
[10] Thurman argues that the trial court erred in granting the Prejudgment
Possession Order because she did not have notice of the hearing. She contends
that she was not informed of the date of the hearing and that the trial court
erred in not ensuring that she had notice of the hearing on Two Star’s motion
for prejudgment possession. Thurman asserts that the order is void because it
was entered without due process since she was not given notice or the
opportunity to be heard and defend herself.3
[11] It is generally acknowledged that procedural due process includes notice and an
opportunity to be heard. Bruno v. Wells Fargo Bank, N.A., 850 N.E.2d 940, 948
(Ind. Ct. App. 2006). A party is denied due process when he is denied the
opportunity to argue his case to the trial court after that court has determined it
would hear argument. Id. This is particularly true for service of process and
2
After filing her notice of appeal, Thurman sought a stay of the Prejudgment Possession Order and the writ
of assistance, which was granted by the trial court.
3
We note that Thurman makes reference to the judgment being void because it was entered without due
process and cites to cases discussing motions for relief from judgment. Appellant’s Br. at 9-11. However, in
the present case, Thurman is not appealing from a final judgment; this is an interlocutory appeal of the trial
court’s grant of the Prejudgment Possession Order. Therefore, any arguments concerning final judgments are
not applicable here.
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other such notice of initial pleadings, but it is also true of proceedings within a
lawsuit. Id.
[12] Two Star contends that Thurman was not denied due process because she failed
to keep herself informed of the trial court proceedings as she was bound to do
under the local rules of Marion County. We agree. Marion County LR49-
TR58-217(C), Duties of Attorneys on Entries of Judgments, states:
Obligation to Keep Themselves Informed of Case Status.
Counsel and parties to a suit should keep themselves informed of
all steps taken in all matters pending before the Court, and are
bound by the Court’s actions, including but not limited to
rulings, notice of trial date settings, and current position of cases
on jury trial calendar, all without special or additional oral or
written notice by the Court.
Attorneys have a general duty to regularly check the court records and monitor
the progress of pending cases. City of Indianapolis v. Hicks, 932 N.E.2d 227, 231
n.5 (Ind. Ct. App. 2010), trans. denied. Although Thurman is a pro se litigant,
she is still “held to the same established rules of procedure that trained counsel
is bound to follow.” Gunashekar v. Grose, 915 N.E.2d 953, 955 (Ind. 2009).
[13] Thurman failed to comply with Marion County LR49-TR58-217(C) because
she did not follow up on the status of her motion to continue that she had filed
to continue the January 25, 2017 hearing and did not keep herself informed of
all the steps taken in her pending case. The record shows that Thurman knew
of the January 25, 2017 hearing at least one week in advance of the same as she
was served on January 18, 2017 with the order setting the hearing date.
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Appellee’s App. Vol. II at 29-31. Thurman was also aware that she had filed a
motion requesting that the January 25 hearing be continued. Id. at 32-33.
Although she had filed this motion, she did not appear in court on January 25,
2017, did not file anything further with the court, and never made any effort to
find out the new hearing date, which was eventually set for February 22, 2017.
If Thurman had complied with the cited local rule and kept herself informed of
the status of her case, in particular the January 25, 2017 hearing and her
requested continuance of the same, she would have been able to discover the
rescheduled February 22, 2017 hearing date. Therefore, any alleged notice
issue argued by Thurman would not have occurred had Thurman followed the
local rules. Local rules are binding on the courts and litigants. Gill v. Evansville
Sheet Metal Works, Inc., 970 N.E.2d 633, 646 (Ind. 2012). The intended function
of local rules is to serve “as a means of obtaining the end of orderly and speedy
justice.” Id. Orderly and speedy justice cannot be obtained if Two Star must
continue to wait to obtain possession of the Real Estate and Thurman is not
required to comply with local rules.
[14] Additionally, Thurman is still held to the requirement of keeping herself
apprised of the status of her case, even in the situation of any alleged absence of
notice of the new hearing date by the trial court. See LR49-TR58-217(C)
(“[P]arties . . . are bound by the Court’s actions, including but not limited to . . .
notice of trial date settings . . . all without special or additional oral or written
notice by the Court.”). Further, Thurman cannot argue that she was not aware
of the local rules as a defense. Ignorance of the law is no excuse. Bellwether
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Props., LLC v. Duke Energy Ind., Inc., 87 N.E.3d 462, 467 (Ind. 2017).
Accordingly, Thurman should have followed the local rule and kept herself
apprised of the status of her case, especially in light of the fact that she had
requested a continuance of the January 25 hearing date and never followed up
to learn whether the continuance had been granted and to what date the hearing
had been rescheduled.
[15] Additionally, Thurman was not denied an opportunity to oppose Two Star’s
request for prejudgment possession of the Real Estate. In both the initial order
to appear and the second order to appear, Thurman was made aware that she
could file an affidavit on her behalf with the trial court that opposed Two Star’s
motion for prejudgment possession. Appellee’s App. Vol. II at 21-22, 27-28. She
was therefore informed of other actions she could have taken, besides appearing
in court, to defend against Two Star’s motion for prejudgment possession.
However, Thurman did not file any affidavits with the trial court. Thurman
had from January 18, 2017, when she was served with the second order to
appear, until February 22, 2017, to file an affidavit opposing Two Star’s
affidavit in support of its motion for prejudgment possession. Indiana Code
section 32-30-3-2 does not require that Thurman present her evidence and
testimony at the actual hearing, but instead, allows her to file affidavits in
advance or in lieu of attending the hearing. Ind. Code § 32-30-3-2(b)(2).
Thurman did not take advantage of this opportunity and cannot now complain
that she was not given an opportunity to oppose, be heard, or defend against
Two Star’s motion. Based on the above reasoning, we conclude that the trial
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court did not err in granting Two Star’s motion for prejudgment possession of
the Real Estate.
[16] Affirmed.
[17] Bailey, J., and Pyle, J., concur.
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