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ATTORNEY

FOR APPELLANT

ATTORNEY FOR APPELLEE No Appearance

Lowell Hull South Bend, Indiana

FILED
In the
Dec 11 2008, 2:23 pm

Indiana Supreme Court
_________________________________ No. 71S03-0812-CV-638

of the supreme court, court of appeals and tax court

CLERK

KY MORTON, Appellant (Defendant below), v. JEROME P. IVACIC, Appellee (Plaintiff below). _________________________________ Appeal from the St. Joseph Superior Court, No. 71D01-0703-SC-02172 The Honorable William T. Means, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 71A03-0708-CV-386 _________________________________ December 11, 2008 SHEPARD, Chief Justice.

The informality of litigating in small claims court promotes doing substantial justice in a relatively efficient way, conferring benefits on plaintiffs and defendants alike. In this case, the court effectively declined to hear evidence on a tenants affirmative defenses to eviction and ordered immediate possession for the landlord. We conclude that the tenant was not given a sufficient opportunity to present a defense, and therefore reverse.

Facts and Procedural History

For nearly five years, appellant Ky Morton leased an apartment in South Bend, Indiana from Jerome P. Ivacic. Morton was a good tenant and remained in satisfactory standing

throughout the tenancy until a dispute arose with about four and a half months remaining on the lease. Morton apparently fell behind on his rent payments, and the parties entered into an agreement under which Morton was able to satisfy his delinquent rent payments. In addition to the rent question, Morton may have also breached the terms of his lease by allowing a third-party female companion to reside on the property in the months leading up to the expiration of the lease.

In March 2007, Ivacic filed an action in the Small Claims Division of the St. Joseph Superior Court to evict Morton and recover damages. On May 17, 2007, the court conducted a hearing on Ivacics application for immediate possession of the property. After the parties were properly sworn, Ivacic described the basis of his application. He testified that his relations with Morton had become turbulent due to "unpaid rent, disruptive behavior, and other people living in the unit." (Appellants App. at 7-8.) Ivacic then proposed that he and Morton should mutually agree on a move-out date. The judge asked Morton if he understood what Ivacic was saying, and the following exchange took place:

THE COURT: That means that you agree to move by a certain date. MR. MORTON: Oh, okay.

THE COURT: The two of you agree on a certain date.

MR. MORTON: Okay. THE COURT: Now, do you have a request as to a particular date? [Mr. Ivacic] does not want you to lose your eligibility.

2

MR. MORTON: Well, I understand that [sic]. I just

Download Ky Morton v. Jerome Ivacic.pdf

Indiana Law