from the Marion Superior Court The Honorable John M.T.
Chavis, II, Judge Trial Court Cause No. 49D05-1111-PL-44470
Attorney for Appellant Jacob R. Cox Cox Law Office
Attorneys for Appellees Mark E. Small Indianapolis, Indiana
Roberta L. Ross Ross & Brunner Indianapolis, Indiana.
Karin Schwab ("Schwab") appeals the trial
court's grant of summary judgment to Kyle Morrissey and
Jamie Morrissey (collectively, "the Morrisseys") on
Schwab's appeal of a small claims court judgment.
Schwab raises two issues on appeal but we address only the
dispositive issue of whether the trial court erred in
granting the Morrisseys summary judgment because Schwab
failed to perfect her appeal of a small claims court
and Procedural History
On May 4, 2011, Schwab filed a complaint against the
Morrisseys in the Washington Township division of the Marion
County small claims court. Schwab's complaint alleged
that the Morrisseys made willful and deliberate
misrepresentations regarding the central air conditioning in
the property they sold to her. Following the Morrisseys'
motion for a change of judge, Schwab's case was moved to
the Franklin Township division of the small claims court. The
small claims court held a bench trial on September 22 and on
that same day entered a final judgment in favor of the
Morrisseys. On November 18, Schwab filed in Marion County
superior court a complaint in which she repled her claims
from the small claims court case; specifically, Schwab
alleged that the Morrisseys knowingly made misrepresentations
to her regarding the air conditioning in the property they
sold to her. On March 5, 2012, the Morrisseys filed an answer
and motion to dismiss for failure to state a claim. Per
agreement of the parties and permission of the trial court,
on July 3 the Morrisseys filed an amended answer in which
they raised, among other defenses, the affirmative defenses
of failure to state a claim and res judicata.
On April 4, 2016, Schwab filed a motion for summary judgment
and, on June 1, the Morriseys filed their own motion for
summary judgment. Schwab moved to strike the Morrisseys'
summary judgment motion as untimely and, on August 30, the
trial court granted the motion to strike. Following an August
30 hearing on Schwab's motion for summary judgment, the
trial court took the matter under advisement.
On September 2, the Morrisseys filed a motion to dismiss in
which they alleged that Schwab had failed to follow the
Marion County rules for filing an appeal of a small claims
court judgment. Specifically, they contended that the Marion
County rules required Schwab to file in the superior court a
"petition to appeal" the small claims court
judgment rather than simply repleading the claims she had
raised in the small claims court. Appellant's App. at 94.
The Morrisseys also asserted that the court should dismiss
Schwab's complaint because the small claims court had
failed to certify and transmit to the superior court the
record of the small claims court proceedings. In support of
its motion to dismiss, the Morrisseys referred the superior
court to an "Affidavit." Id. at 94-95. On
October 4, Schwab filed her response to the motion to dismiss
in which she argued that she had followed the correct appeal
procedures and, in the alternative, that her action was an
action independent of the small claims court action and could
not be dismissed as res judicata because the Morrisseys had
failed to raise res judicata as an affirmative defense in
On October 7, 2016, the trial court granted the
Morrissey's September 12 motion to dismiss with
prejudice. In a November 9 order denying Schwab's
subsequent motion to correct ...