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FOR PUBLICATION

FILED
Sep 16 2008, 9:54 am

ATTORNEY FOR APPELLANT: THOMAS B. O'FARRELL McClure & O'Farrell, P.C. Westfield, Indiana

of the supreme court, court of appeals and tax court

CLERK

IN THE COURT OF APPEALS OF INDIANA
ALFRED McCLURE, Appellant-Defendant, vs. JACKIE COOPER, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 86A03-0801-CV-38

APPEAL FROM THE WARREN CIRCUIT COURT The Honorable John A. Rader, Judge Cause No. 86C01-0708-SC-50

September 16, 2008

OPINION - FOR PUBLICATION

BAILEY, Judge

Case Summary Alfred McClure appeals the trial court's judgment in favor of his former client, Jackie Cooper. We affirm but remand with instructions. Issues McClure raises three issues on appeal, which we restate as: I. Whether the trial court erred in not granting McClure's Motion to Dismiss for Improper Venue; Whether the trial court erred in denying his Motion for Change of Judge; and Whether Cooper lacked standing to file this claim. Facts and Procedural History Cooper hired McClure to perform certain legal services and paid him a retainer, including funds for a bankruptcy court filing fee. On August 30, 2007, Cooper filed a Small Claims Notice of Claim ("Claim") in Warren County for a refund of the entire amount paid, alleging that McClure had failed to perform. The Claim contained a notice of hearing. McClure later filed a Verified Motion to Dismiss for Improper Venue. It does not appear from the record on appeal that the trial court ruled on that motion. On September 21, 2007, McClure also filed a Motion for Change of Judge, which was denied as untimely. The trial court conducted a hearing and entered a money judgment for Cooper. McClure now appeals. Discussion and Decision Cooper has not filed an Appellee Brief. Where the Appellee fails to respond, the appellant needs only to make a prima facie showing of error to merit reversal. State v. Akins, 2

II.

III.

824 N.E.2d 676, 677 (Ind. 2005). However, we review de novo questions of law, regardless of the appellee's failure to submit a brief. Id. I. Proper Venue McClure argues that the trial court should have granted his Verified Motion to Dismiss for Improper Venue. In it, he argued that venue was only proper in Hamilton County or Tippecanoe County, but not in Warren County. While it does not appear from the record that the trial court ruled on McClure's motion, we may assume that the trial court denied it. See Ankney v. State, 825 N.E.2d 965, 970 n.3 (Ind. Ct. App. 2005), trans. denied; see also Endres v. Ind. State Police, 809 N.E.2d 320, 322 (Ind. 2004) ("At a minimum, a party must show that it gave the trial court a bona fide opportunity to pass upon the merits of the claim before seeking an opinion on appeal."). In small claims court, venue may be proper based upon a number of criteria, including where the obligation "is to be performed." Ind. Small Claims Rule 12(A). Cooper hired McClure to file bankruptcy. They signed a contract for legal services, providing as follows: Additional services. Any services requested or required by Client(s) not listed in paragraphs 2(a) and 2(b), above; shall be billed to Client(s) [at an hourly rate]. Appendix at 33. Pursuant to that provision, McClure filed his appearance in the Warren Circuit Court to defend Cooper in a mortgage foreclosure action. He apparently did little more, as Cooper suffered a default judgment. Nonetheless, McClure took this affirmative step in Warren County to perform part of his obligation under the contract. This was sufficient to make venue proper in Warren County. We find no error.

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II. Change of Judge In the alternative, McClure asserts that his Motion for Change of Judge was timely and that it should have been granted. Specifically, he argues that Indiana Trial Rule 76(C)(1) allows a small claims litigant to file a Motion for Change of Judge no later than "thirty [30] days from the date the same is placed and entered on the chronological case summary." Ind. Trial Rule 76(C)(1). Although McClure filed his motion within the thirty days, he did so just three days before the scheduled hearing as set forth in the clerk's notice on Cooper's Claim. This notice identified the Warren Circuit Court and the place, date and time for the hearing. Our Supreme Court has addressed the relationship of the Trial Rules and the Small Claims Rules as follows: Indiana Trial Rule 1 provides that the Trial Rules govern "the procedure and practice in all courts of the state of Indiana in all suits of a civil nature . . . ." Small Claims Rule 1(A) provides that the Small Claims Rules apply "to all small claims proceedings . . . ." The . . . Trial Rules govern small claims proceedings to the extent the two sets of rules do not conflict, but where the two conflict, the Small Claims Rules apply. Niksich v. Cotton, 810 N.E.2d 1003, 1005 (Ind. 2004) (internal citation omitted). Under the Trial Rules, the general deadline for change of judge motions is ten days after the issues are closed on the merits. Ind. Trial Rule 76(C). There are six exceptions, any one of which may make a motion untimely. McClure's argument is limited to one of them

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