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Rosenberg v. Robinson

Court of Appeals of Indiana

July 6, 2015

Linda Rosenberg, Appellant,
Kenneth Robinson, Appellee

Page 694

Appeal from the Lake Superior Court. The Honorable Michael N. Pagano, Magistrate. Cause Nos.: 45D09-1308-SC-1965; 45D09-1308-SC-1966.

Reversed and remanded.

ATTORNEYS FOR APPELLANT: Scott King, Lakeisha Murdaugh, Scott King Group, Merrillville, Indiana.

Brown, Judge. Bailey, J., and Robb, J., concur.


Brown, Judge.

Page 695

[¶1] Linda Rosenberg appeals from the entry of default judgment under two causes, raising three issues, which we consolidate and restate as whether the trial court erred in denying her motion to set aside default judgment against her and denying her motion to correct error. We reverse and remand.

Facts and Procedural History

[¶2] On August 2, 2013, Kenneth Robinson filed two notices of claim against Rosenberg in the small claims court. In his first claim under cause number 45D09-1308-SC-1965 (" Cause No. 1965" ), Robinson alleged that, on August 16, 2011, he loaned his " boss $5,000.00 to be repaid to [him] as soon as she transferred money from outside accounts" and that " this money along with $1,000.00 worth of expenditures was never repaid." Appellant's Appendix at 15. In his second claim, under cause number 45D09-1308-SC-1966 (" Cause No. 1966" ), Robinson stated that he worked for Rosenberg from February 17, 2011 to August 25, 2011, that " [s]he owes [him] for 3.75 weeks of work," that he was " asking for 3 week[s] to be repaid," and that he " made $2000 per week totaling $6000." Id. at 16. The small claims court scheduled a bench trial for October 30, 2013.

[¶3] Rosenberg's counsel was present at the beginning of the scheduled October 30, 2013 trial, and requested a stay due to an ongoing federal investigation and said that he " believe[d], with . . . some basis, that these complaints are at least a part of the genesis of the federal matter." October 30, 2013 Transcript at 4-5. He stated " we believe, and part of it's based on some correspondence we have, purporting to be from this, uh, plaintiff, that part of the genesis of that may well be something he expressed on October 5th, 2012, which not casting aspersions, appears to come close to the boarder [sic] line of extortion." Id. at 5. When questioned by the court, Robinson stated that he also had a whistle-blower case against Rosenberg in federal court. Robinson further stated: " I was told by my defense lawyer that we can go ahead and anything I say today, of course, can be used against me as perjury in the Federal Court case, but . . . I can go ahead and present my evidence as is." Id. at 9. Robinson stated that he had been living in Des Plaines, Illinois, and was in the process of moving to an apartment in New Jersey, and that he worked for Rosenberg from February 17, 2011, through August 25, 2011. The court granted a continuance, rescheduled the matters for January 14, 2014, for a status hearing, said that Robinson could appear by telephone, and that it would hear Rosenberg's counsel on the issue of a stay.

[¶4] On January 14, 2014, the court held the scheduled hearing at which Robinson appeared telephonically and Rosenberg and her counsel did not appear. The court placed Robinson under oath and then stated " [n]ow, on your first case, under cause number 1965, it's based on a loan; and how much, and it was never repaid. You're owed $6,000. on that, is that correct,"

Page 696

and Robinson replied " [t]hat is correct." January 14, 2014 Transcript at 6. The court then asked about the second case and said " [l]ong and the short . . . essentially you want the liquidated damages times three; right," and Robinson said: " No. She owes me three . . . weeks. So, that's $6,000." Id. at 6-7. The court entered judgment by default on both claims.

[¶5] According to entries dated January 17, 2014, in the chronological case summaries for Cause No. 1965 and Cause No. 1966, Rosenberg filed a motion to set aside default judgment stating that her counsel " inadvertently omitted the [January 14, 2014] hearing from his personal calendaring system and that this mistake was compounded when he was in a trial in Marion County at the same time this matter was set for a status hearing." [1] Appellant's Appendix at 21. On January 22, 2014, Rosenberg also filed a motion for stay in both causes requesting an order staying the execution and enforcement of the default judgment until the disposition of the motion to set aside default judgment.[2] In an order dated January 22, 2014, the court granted the motion to stay, noted there was a hearing scheduled for March 20, 2014 on the motion to ...

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