Zaremba v. Nevarez

• Decision Date: 30 December 2008
• Docket Number: No. 64A05-0809-CV-524.,64A05-0809-CV-524.
• Parties: Peg ZAREMBA, Appellant-Plaintiff, v. Jessica NEVAREZ and John Nevarez, Appellees-Defendants.
• Court: Indiana Appellate Court

898 N.E.2d 459

Peg ZAREMBA, Appellant-Plaintiff, v. Jessica NEVAREZ and John Nevarez, Appellees-Defendants.

No. 64A05-0809-CV-524.

Court of Appeals of Indiana.

December 30, 2008.

Timothy E. Vojslavek, Vojslavek & Catsadimas, P.C., Valparaiso, IN, Attorney for Appellant.

OPINION

BROWN, Judge.

Peg Zaremba appeals the trial court's dismissal with prejudice of her claim against Jessica Nevarez and John Nevarez for rent and damages. Zaremba raises two issues, which we consolidate and restate as whether the trial court abused its discretion by denying Zaremba's motion to correct error concerning the trial court's dismissal with prejudice of Zaremba's complaint. We reverse and remand.

The relevant facts follow. On February 1, 2008, Zaremba filed a small claims eviction complaint against the Nevarezes under Cause Number 64D04-0802-SC-629 ("Cause No. 629"). On February 22, 2008, the trial court held a hearing on ejectment with both parties present.¹ Zaremba advised the trial court that the Nevarezes had vacated the premises. The trial court set a hearing on damages for March 14, 2008.

On March 14, 2008, the trial court entered an order indicating that the parties appeared for an initial hearing and setting a bench trial for May 30, 2008. On May 30, 2008, Zaremba failed to appear, but her counsel appeared and requested dismissal without prejudice. The trial court dismissed the matter without prejudice.

On July 7, 2008, Zaremba filed a claim against the Nevarezes for $2,063.39 in connection with the rental property under Cause Number 64D04-0807-SC-3733 ("Cause No. 3733"). On August 14, 2008, the trial court dismissed Zaremba's claim with prejudice. The trial court's order states:

On May 30, 2008 the matter of Zaremba v. Jessica and John Nevarez in 64D04-0807-SC-3733 was dismissed because [Zaremba] failed to appear for bench trial.[²] The trial was set after [the Nevarezes] appeared at Damages Hearing and contested the amount that [Zaremba] had sought in post-possession damages. [Zaremba]'s Attorney set forth no reason for [Zaremba]'s failure to appear and filed no motion under Trial Rule 60 to set aside the dismissal. The finding of dismissal served as res judicata on this subsequent filing, which appears to be an attempt by [Zaremba] to circumvent the dismissal for [Zaremba]'s failure to appear.

The actions of [Zaremba]'s Attorney in attempting to file a new claim for damages after the previous matter was dismissed for his clients failure to appear are contrary to the spirit, intent and findings made in SC-3773. [Zaremba's] failure to appear and the dismissal is res judicata. This matter is dismissed with prejudice.

Appellant's Appendix at 20.

On August 19, 2008, Zaremba filed a motion to correct error and argued that the trial court erred by relying on the dismissal without prejudice of Cause No. 629 as a basis for res judicata.³ The trial court entered the following order denying Zaremba's motion to correct error:

The Court finds as follows:

1. On May 30, 2008, in the cause number 64D04-0807-SC-3733 entitled Zaremba versus Nevarez, [Zaremba] did not appear for trial. Counsel for [Zaremba] had no explanation for her whereabouts and failure to appear. The Court asked counsel whether he wanted a continuance, whether he wanted to proceed with [the Nevarezes] as his witness, or whether he wanted to dismiss her claim without prejudice for damages, post eviction.[ ] [Zaremba]'s counsel chose dismissal without prejudice. The Court specifically advised [Zaremba's attorney] that if [Zaremba] missed the hearing due to excusable neglect or emergency, to file a Rule 60 Motion within 60 days. [Zaremba] filed nothing.

2. [Zaremba] then filed this cause of action for damages, knowing that she had failed to follow the court's directive to file a Rule 60 Motion to reinstate the cause of action. The action in SC-3733 could not proceed to the merits because [Zaremba] did not show up. It would not be fair to [the Nevarezes], who appeared for trial, to be later sued for the same claim in which the opposing party failed to appear.

3. In both the Journeys Account Statute and the caselaw interpreting Small Claims Rule 10([B]),⁴ the negligence of the Plaintiff who fails to appear and prosecute the action is an exception to the rule allowing subsequent refiling of an action. See e.g. Kohlman v. Finkelstein, 509 N.E.2d 228 (Ind.App.1987) and Multivest Properties v. Hughes, 671 N.E.2d 199 (Ind.Ct.App.1996). In the Multivest case, it was particularly noted that it is Plaintiffs obligation to seek relief from the dismissal without prejudice under Rule 60 prior to refiling the case.

Id. at 31.

Before addressing Zaremba's arguments we note that the Nevarezes did not file an appellees brief. When an appellee fails to submit a brief, we do not undertake the burden of developing appellees arguments, and we apply a less stringent standard of review, that is, we may reverse if the appellant establishes prima facie error. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct.App.2006). This rule was established so that we might be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. Wright v. Wright, 782 N.E.2d 363, 366 (Ind.Ct. App.2002).

The sole issue is whether the trial court abused its discretion by denying Zaremba's motion to correct error concerning the trial court's dismissal with prejudice of Zaremba's complaint. The standard of appellate review of trial court rulings on motions to correct error is abuse of discretion. Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048, 1055 (Ind.2003). An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before the court, including any reasonable inferences therefrom. Id.

Zaremba argues that the trial court abused its discretion when it: (A) determined that a previous dismissal without prejudice could serve as res judicata for a subsequent refiling of the same claim; and (B) stated that a plaintiff who fails to appear one time for trial in a small claims case was required to seek relief pursuant to Ind. Trial Rule 60. We will address these arguments separately.

A. Res Judicata

The trial court dismissed Zaremba's complaint in Cause No. 3733 with prejudice because the finding of dismissal in Cause No. 629 "served as res judicata" for the subsequent complaint. Appellant's Appendix at 20. Zaremba argues that the dismissal of Cause No. 629 cannot serve as the basis for res judicata. We agree. "Under the doctrine of res judicata, `a judgment rendered on the merits is an absolute bar to a subsequent action between the same parties or those in privity with them on the same claim or demand.'" Gill v. Pollert, 810 N.E.2d 1050, 1057 (Ind. 2004) (quoting Sullivan v. American Cas. Co., 605 N.E.2d 134, 137 (Ind.1992)). "For principles of res judicata to apply, there must have been a final judgment on the merits and that judgment must have been entered by a court of competent jurisdiction." Matter of Sheaffer, 655 N.E.2d 1214, 1217 (Ind.1995).

In Cause No. 629, Zaremba's attorney requested dismissal without prejudice and the trial court dismissed the matter "without prejudice." Appellant's Appendix at 17. Because Cause No. 629 was dismissed without prejudice, it was not a judgment on the merits. Consequently, we conclude that Zaremba's complaint in Cause No. 3733 was not barred by the doctrine of res judicata. See, e.g., In re L.B., 889 N.E.2d 326, 333-334 (Ind.Ct.App.2008) (holding that the second petition for the involuntary termination of fathers parental rights to his children was not barred by the doctrine of res judicata because the first petition was dismissed without prejudice due to a procedural error and did not finally determine the underlying issues on the merits); Wood v. Zeigler Bldg. Materials, Inc., 436 N.E.2d 1168, 1170 (Ind.Ct.App.1982) ("A dismissal without prejudice is not a determination of the merits of a complaint and does not bar a later trial of the issues."); C.L.B. v. S.T.P., 167 Ind.App. 10, 15, 337 N.E.2d 582, 585 (1975) ("We are of the opinion that the first petition filed by the petitioner was not res judicata as there was no judgment rendered on the merits and there was no adjudication in the former suit. In fact the cause was dismissed sua sponte without prejudice by the court.") Thus, we conclude that the trial court abused its discretion by dismissing Zaremba's claim on this basis.

B. Ind. Trial Rule 60

The trial court's order denying Zaremba's motion to correct error states that Zaremba failed to file a motion under Ind. Trial Rule 60 to reinstate the cause of action. Specifically, the trial court cited Kohlman v. Finkelstein, 509 N.E.2d 228 (Ind.Ct.App.1987), reh'g denied, trans. denied, for the proposition that "[i]n both the Journey's Account Statute and the caselaw interpreting Small Claims Rule 10([B]), the negligence of the Plaintiff who fails to appear and prosecute the action is an exception to the rule allowing subsequent refiling of an action." Appellant's Appendix at 31. The court in Kohlman addressed Indiana's Journey's Account Statute, Ind.Code § 34-1-2-8,⁵ which provided:

If, after the commencement of an action, the plaintiff fails therein, from any cause except negligence in the prosecution, or the action abate, or be defeated by the death of a party, or judgment be arrested or reversed on appeal, a new action may be brought within five (5) years after such determination, and be deemed a continuation of the first, for the purposes herein contemplated.

The court held that "[t]he purpose of I.C. 34-1-2-8 is to provide for continuation when a plaintiff fails to obtain a decision on the merits for some reason other than his own neglect and the statute of limitations expires while his suit is pending." 509 N.E.2d at 232. We held that a case that is voluntarily dismissed does not toll the statute of...