APPELLANT PRO SE: ATTORNEYS FOR APPELLEES:
EDWARD J. NIKSICH STEVE CARTER
Pendleton, Indiana Attorney General of Indiana
Deputy Attorney General
COURT OF APPEALS OF INDIANA
EDWARD J. NIKSICH, )
vs. ) No. 48A02-0210-CV-851
ZETTIE COTTON and STEVE VAN CLEAVE, )
APPEAL FROM THE MADISON COUNTY COURT
The Honorable David W. Hopper, Judge
Cause No. 48E01-0205-DC-1105
August 25, 2003
OPINION - FOR PUBLICATION
Edward J. Niksich appeals the small claims courts decision dismissing his suit against
Zettie Cotton and Steve Van Cleave, raising several issues for review, one of
which we find dispositive: whether Ind. Trial Rule 12(B)(6) applies to small
claims actions. Because it is likely to recur, we also address Niksichs
claim that the small claims court violated his constitutional right to access the
court system by denying his motion for an order to transport, or in
the alternative, to conduct the trial at the prison where Niksich is incarcerated.
We reverse and remand.
FACTS AND PROCEDURAL HISTORY
On May 22, 2002, Niksich, an inmate at Pendleton Correctional Facility, filed his
notice of small claim against Cotton and Van Cleave, employees of the prison.
In it, he alleged that the defendants damaged and deprived him of
his color television set. The court set a trial date of August
12, 2002 for the claim.
On August 2, 2002, Niksich filed his motion for a transport order to
allow him to attend the trial, or in the alternative, for the trial
to be conducted at the prison where he was incarcerated. The trial
court denied the motion and continued the trial until after Niksich is released
On August 8, 2002, the defendants filed a motion under T.R. 12(B)(6) alleging
that Niksichs complaint failed to state a claim upon which relief could be
granted. On August 12, 2002, the trial court granted the motion and
dismissed the suit. On August 14, 2002, Niksich filed his motion for
leave to amend his complaint, but the court denied the motion. He
DISCUSSION AND DECISION
Niksich first argues that the small claims court erred in applying T.R. 12(B)(6)
to his small claims case. A T.R. 12(B)(6) motion to dismiss tests
the legal sufficiency of the complaint. Berghausen v. Microsoft Corp., 765 N.E.2d
592, 594 (Ind. Ct. App. 2002), trans. denied. T.R. 1, which governs
the scope of the trial rules provides: [e]xcept as otherwise provided, these
rules govern the procedure and practice in all courts of the state of
Indiana in all suits of a civil nature. Ind. Small Claims
Rule 1 states that [t]hese rules shall apply to all small claims proceedings
in all courts of the State of Indiana . . . having
jurisdiction over small claims. This court has held that these two rules
should be read together to mean that the Trial Rules govern small claims
proceedings only to the extent that they are not inconsistent with the Small
Claims Rules. Muenich v. Gulden, 579 N.E.2d 665, 666 (Ind. Ct. App.
1991); Frank H. Monroe Heating & Cooling, Inc. v. Rider, 450 N.E.2d 1056,
1057 (Ind. Ct. App. 1983). Thus, our courts have applied the Trial
Rules where the Small Claims rules are silent. Frank H. Monroe, 450
N.E.2d at 1057. Where, however, the Small Claims Rules are inconsistent with
the Trial Rules, the Small Claims rules have been applied. Muenich, 579
N.E.2d at 666; Frank H. Monroe, 450 N.E.2d at 1057.
S.C.R. 10(A) governs dismissals. It states that a court may dismiss an
action without prejudice if the plaintiff fails to appear at the time and
place specified for the trial or for any continuance thereof. It further
explains that if the claim is then refiled and the plaintiff again fails
to appear, the claim may be dismissed with prejudice. Because the Small
Claims Rules specify when a small claims court can dismiss a plaintiffs claim,
T.R. 12(B), which allows the court to dismiss a plaintiffs claim for a
number of reasons, including that invoked here, failure to state a claim upon
which relief can be granted, does not apply in small claims cases.
also Multivest Props. v. Hughes, 671 N.E.2d 199, 201 (Ind. Ct. App. 1996)
(S.C.R. 10(A) is quite specific as to how a court can dismiss a
claim). But see Accentech, Inc. v. Cecconi, 1994 WL 89435 *1 (Mass.
App. Div. Mar. 14, 1994) (applying Massachusetts law) (holding that T.R. 12(b)(6) applies
to small claims cases)).
Furthermore, we note the difficulty were we to reach the opposite result.
In contrast to the Trial Rules, which require the plaintiff to include in
his or her complaint a short and plain statement of the claim showing
that the pleader is entitled to relief, T.R. 8, the Small Claims Rules
require a plaintiff only to include in his or her notice of claim
[a] brief statement of the nature and amount of the claim . .
. . S.C.R. 2(B)(4). The policy of small claims pleading is
not to be bound by statutory provisions or rules of pleading.
v. Richardson, 444 N.E.2d 868, 869 (Ind. Ct. App. 1983). Allowing defendants
to bring T.R. 12(B)(6) motions challenging the sufficiency of the complaint is incompatible
with the lower burden of pleading in small claims cases. See also
id. at 869-70 (small claims pleading is adequate where it complies with S.C.R.
Small claims court is intended to be a place where such formality is
not the order of the day.
Bowman v. Kitchel, 644 N.E.2d 878,
879 (Ind. 1995). S.C.R. 8(A) embodies this policy. Id. It
states: The trial shall be informal, with the sole objective of dispensing
speedy justice between the parties according to the rules of substantive law, and
shall not be bound by the statutory provisions or rules of practice, procedure,
pleadings or evidence . . . . The application of T.R. 12(B)(6) would
contravene the spirit and purpose of small claims procedure.
Niksich also argues on appeal that the small claims court denied him his
constitutional right to access the court system by denying his motion for order
to transport or to conduct the trial of the cause at the prison
where he was incarcerated so that he could attend the trial.
A prisoner who brings a civil lawsuit has no right to a transport
Zimmerman v. Hanks, 766 N.E.2d 752, 757 (Ind. Ct. App. 2002).
Moreover, a trial court cannot secure the attendance of an incarcerated plaintiff
at a civil action unrelated to the case resulting in incarceration. Brown
v. State, 781 N.E.2d 773, 776 (Ind. Ct. App. 2003); Zimmerman, 766 N.E.2d
at 757. Nevertheless, a prisoner does have a constitutional right to bring
a civil action. Zimmerman, 766 N.E.2d at 757 (citing Ind. Const. art.
1, § 12). However, in Zimmerman, 766 N.E.2d at 757-58, we noted
other avenues potentially available to the incarcerated civil litigant to present his or
her claim, such as video conferencing, telephonic conferencing, submission to the court by
documentary evidence, or postponement of the trial until after his or her release
We reverse and remand to the trial court for proceedings consistent with this
BAILEY, J., and VAIDIK, J., concur.
In so holding, we note that in at least one case, E
& L Rental Equipment, Inc. v. Gifford, 744 N.E.2d 1007 (Ind. Ct. App.
2001), another panel of this court held that a small claims case should
have been dismissed pursuant to T.R. 12(B)(6) because the plaintiff was not a
real party in interest. To the extent that this case can be
interpreted as endorsing the use of T.R. 12(B)(6) in small claims cases for
any reason other than to implement T.R. 17(A), we disagree.