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Schwab v. Morrissey

Court of Appeals of Indiana

August 25, 2017

Karin Schwab, Appellant-Plaintiff,
v.
Kyle Morrissey, et al., Appellees-Defendants.

         Appeal 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 Indianapolis, Indiana.

          Attorneys for Appellees Mark E. Small Indianapolis, Indiana Roberta L. Ross Ross & Brunner Indianapolis, Indiana.

          Bailey, Judge.

         Case Summary

         [¶1] 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.

         [¶2] We reverse.

         Issues

         [¶3] 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 judgment.

         Facts and Procedural History

         [¶4] 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.

         [¶5] 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.

         [¶6] 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."[1] 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 their answer.

         [¶7] 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 ...


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