from the Marion County Small Claims Court The Honorable A.
Douglas Stephens, Judge Trial Court Cause No.
Appellants Pro Se Kay Kim, Charles Chuang
Attorney for Appellee Village at Eagle Creek Homeowners
Association, Inc. David E. Jacuk Tanner Law Group
Attorney for Appellees Muhammed Javed and Andleeb Javed
Steven St. John Skiles DeTrude
Kay Kim and Charles Chuang (together, "Plaintiffs")
appeal the small claims court's order dismissing their
small claims action against the Village at Eagle Creek
Homeowners Association, Inc. ("VEC") and Muhammed
Javed and Andleeb Javed. The Plaintiffs raise several issues
for our review, which we restate and consolidate as: whether
the small claims court erred when it dismissed
Plaintiffs' small claims action with prejudice for
failure to attend mediation.
We reverse and remand.
and Procedural History
This case arises from an incident in which Plaintiffs'
dogs were allegedly bitten by another dog in the outside
common area of their condominium complex. The dog that
allegedly bit their dogs was owned by tenants of a unit in
the complex. On November 7, 2018, Plaintiffs filed a small
claims action against VEC, seeking damages for the treatment
sought for their dogs. Appellants' App. Vol. II
at 22. On December 13, 2018, VEC filed a motion to dismiss.
Id. at 14. Plaintiffs opposed the motion and later
added Muhammed Javed and Andleeb Javed ("the
Javeds"), the owners of the unit where the dog that
allegedly bit their dogs resided, thus making VEC and the
Javeds defendants (collectively, "Defendants").
Id. at 14-16.
On December 28, 2018, the small claims court denied VEC's
motion to dismiss and ordered the parties to alternative
dispute resolution, which included mediation or arbitration.
Appellees' App. Vol. 2 at 2. On January 28,
2019, the small claims court provided a panel of four
mediators, from which the parties were to each strike one.
Id. at 5. After the small claims court had provided
this list, Plaintiffs filed their own list of mediators,
which was stricken by the small claims court the same day.
Appellants' App. Vol. II at 19, 82-83. Despite
being ordered to participate in mediation, Plaintiffs filed a
motion for summary judgment on February 25, 2019, which was
stricken by the small claims court. Id. at 19.
After the parties each struck a mediator from the panel
provided by the small claims court, Mark Matheny
("Matheny") was the remaining proposed mediator and
was appointed to the case on February 28, 2019. Id.
On March 13, 2019, Matheny contacted the parties to obtain a
date for mediation and explained his fee schedule.
Id. at 91. He explained that his fee was $200 per
hour which was to be split equally between the parties and
that a retainer of $300 was to be paid by both sides.
Id. Shortly after receiving Matheny's email,
Plaintiffs responded that the mediation fee of $200 per hour
was to be split among the three parties and that
Plaintiffs' portion of the fee should not exceed more
than $70. Id. at 92. Plaintiffs further informed
Matheny that their demand of $591 plus court costs and
mediation costs was not negotiable and "will not
change." Id. Twenty-one minutes later,
Plaintiffs emailed Matheny, again reiterating their position
and stating that they would not pay more than $70 for
mediation and that they would walk out of mediation within
the first half hour. Id. at 93. Three minutes after
this second email, Plaintiffs emailed Matheny, informing him
that they would bring two checks of $35 to the mediation so
that one check could be given back after a half hour of
On March 18, 2019, Matheny filed a "Report of Mediator
and Resignation of Mediator" with the small claims
court. Id. at 94. In the report, Matheny stated that
"Plaintiff, Kay Kim, has indicated that she would not be
participating in the mediation under the terms set forth in
the mediator's Agreement to Mediate." Id.
He further informed the court that due to the correspondence
between Plaintiffs and himself, he felt that he was "now
in an adversarial relationship with the Plaintiff[s] and can
no longer act as mediator in this cause of action and would
tender his resignation as mediator." Id.
Matheny additionally stated that "no mediation ha[d]
taken place, no mediation ha[d] been scheduled, nor ha[d] the
parties agreed to the terms of mediation at this point."
On March 20, 2019, the small claims court sua sponte
set a Rule to Show Cause hearing and ordered Plaintiffs to
appear and show cause as to why they should not be held in
contempt for failing to attend mediation; if Plaintiffs
failed to appear and show good cause, the action could be
dismissed. Appellees' App. Vol. 2 at 7-8.
Plaintiffs filed an answer to the Rule to Show Cause order
and, for the first time, requested a pro bono mediator be
appointed. Appellants' App. Vol. II at 98. On
April 26, 2019, the parties appeared at the Rule to Show
Cause hearing, and the small claims court heard evidence. At
the conclusion of the hearing, the small claims court issued
an order dismissing Plaintiffs' case with prejudice,
finding that ...