Ray Evans v. Eric L. Thomas
976 N.E.2d 125
| Ind. Ct. App. | 2012Background
- Thomas petitioned for an ex parte protection order against Evans, alleging a history of conflict and threats, animal harm, stalking, and violence.
- Allegations included Evans allegedly pulled a gun in 2005, punched Thomas in 2011, and killed Thomas's family cat; dog threats were claimed.
- The trial court denied the ex parte PO and set a hearing for December 20, 2011.
- Evans sought a continuance to retain counsel; the court denied the continuance, stating orders should be addressed quickly.
- At the December 20 hearing Evans did not contest the PO, which was issued; Evans later retained counsel and appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the court abuse its discretion denying a continuance? | Evans lacked time to secure counsel; denial prejudiced preparation. | The allegations were serious; five days was sufficient and swift action warranted. | No abuse; swift action justified and no prejudice shown. |
| Did Thomas's petition allege conduct sufficient to support a PO? | Allegations of threats, violence, stalking, and animal harm suffice for a PO. | Evans waived a challenge by not arguing it below; the petition adequately supports a PO. | We do not address sufficiency due to waiver; petition supported a PO. |
| Was an evidentiary hearing required before issuance of the PO? | Full evidentiary hearing is mandated to protect rights. | No automatic requirement; waiver and notice considerations apply. | No error; decisional economy and waiver acceptability upheld. |
| Did the PO issuance violate Evans's due process rights? | Evans had insufficient time to obtain counsel and was confused by proceedings. | Evans could have secured representation; record shows understanding of proceedings. | No due process violation; notice and opportunity to be heard were sufficient. |
Key Cases Cited
- Homehealth, Inc. v. Heritage Mut. Ins. Co., 662 N.E.2d 195 (Ind. Ct. App. 1996) (continuance rightly denied absent good cause; prejudice and counsel timing considerations)
- Hess v. Hess, 679 N.E.2d 153 (Ind. Ct. App. 1997) (avoidance of continuance prejudice; speedy proceedings)
- Art Country Squire, L.L.C. v. Inland Mortg. Corp., 745 N.E.2d 885 (Ind. Ct. App. 2001) (new-argument waiver rule on appeal)
- Fowler v. Perry, 830 N.E.2d 97 (Ind. Ct. App. 2005) (standard for reviewing continuance rulings in PO context)