Bishop v. Housing Auth. of South Bend, No. 71A03-0906-CV-273, ___ N.E.2d ___ (Ind. Ct. App., Feb. 1, 2010)

DARDEN, J.

Erica Bishop appeals the trial court’s order that granted the Housing Authority of South Bend (“HASB”) prejudgment possession of the apartment unit she had leased from HASB.

. . . .

Bishop argues that the trial court erred when it refused to convene a jury for the immediate possession hearing. . . .

We read the Indiana ejection statute to preserve Bishop’s right to a jury trial – on the ultimate outcome, i.e., the merits of HASB’s claim that it is entitled to possession based upon her breach of an express term of the lease. . . .

. . . Indiana’s ejectment statute provides for a pre-judgment possession hearing to allow the defendant to controvert plaintiff’s affidavit “or to show cause why the judge should not remove the tenant from the property and put the plaintiff in possession.” I.C. § 32-30-3-2; see also Cunningham v. Georgetown Homes, Inc., 708 N.E.2d 623, 627 (Ind. Ct. App. 1999). The statutory hearing manifests the inherent power of trial courts to intercede at an early stage — to make a preliminary decision before what could thereafter be a lengthy judicial process. Before issuance of a preliminary decision, the defendant/tenant is given the express opportunity to dispute the landlord’s claim for immediate possession. Moreover, this preliminary possession decision triggers the requirement that the plaintiff/landlord file “a surety . . . in an amount sufficient to assure the payment of any damages the defendant may suffer if the court 12

wrongfully ordered” preliminary possession to the landlord. I.C. § 35-30-3-6. The preliminary possession decision is also subject to further proceedings to reach an ultimate determination — the “final judgment” that “supersedes” the “prejudgment order for possession.” I.C. § 35-30-3-12.

The Indiana statute merely allows the trial court to make a preliminary decision as to the right to immediate possession of the property. It preserves Bishop’s right to a trial by jury on the ultimate issue as to whether she should be ejected from the property. We find that there is no constitutional right to a jury trial at the preliminary possession hearing in an ejectment proceeding. Therefore, Bishop has failed to persuade us that the ejectment statute violated her right to a jury trial pursuant to the Indiana constitution. Wallace, 905 N.E.2d at 378.

. . . .

Affirmed.

BAKER, C.J., and NAJAM, J., concur.

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