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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Nov 10 2010, 8:59 am
of the supreme court, court of appeals and tax court

CLERK

APPELLANT PRO SE: JEAN D. SCHOKNECHT Indianapolis, Indiana

ATTORNEY FOR APPELLEE: DAVID M. SEITER Garrison Law Firm, LLC Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JEAN D. SCHOKNECHT, Appellant-Plaintiff, vs. SUSAN E. DUNLAP, f/k/a SCRIBNER, f/k/a HASEMEIER, Appellee-Defendant. ) ) ) ) ) ) ) ) ) )

No. 49A04-0912-CV-745

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Thomas J. Carroll, Judge Cause No. 49D06-9812-CP-4072

November 10, 2010

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge

Jean D. Schoknecht ("Landlord"), pro se, appeals the dismissal of her claims against Susan E. Dunlap (formerly Susan E. Hasemeier) ("Tenant"). Landlord raises two issues, which we revise and restate as: I. Whether the trial court abused its discretion in dismissing Landlords claim; and Whether the trial court properly denied Landlords request for a jury trial.

II.

We reverse and remand. The relevant facts follow. This case arises from a residential lease which was entered into over fifteen years ago. See Schoknect v. Hasemeier, 735 N.E.2d 299, 300 (Ind. Ct. App. 2000). In August 1995, Landlord entered into a lease agreement with Tenant for residential property located in Indianapolis for a lease term of one year, and Tenant paid Landlord a security deposit in the amount of $750.1 Id. Following the expiration of the initial one-year lease term, Tenant continued to lease the property from Landlord on a month-to-month basis. Id. In April 1997, Landlord filed suit against Tenant in the Marion County Small Claims Court alleging waste and failing to make lease payments when due, and Landlord obtained a judgment against Tenant which entitled Landlord to possession of the property. Id. at 301. The court set the matter for hearing on damages. Id. After Tenant requested the return of her security deposit and Landlord sent a letter to Tenant itemizing damages and an estimated cost

The lease agreement also provided that Tenant would reimburse Landlord for loss or damage to the property due to the negligence or other act of Tenant or Tenants guest. Schoknect, 735 N.E.2d at 300-301.

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of repair, Landlord dismissed her claim against Tenant without prejudice in November 1997. Id. On May 8, 1998, Tenant filed suit against Landlord for her security deposit in the Wayne Township Division of the Marion County Small Claims Court. Id. On July 27, 1998, Landlord filed a counterclaim. On August 4, 1998, on the date the small claims court had set the matter for hearing, Landlord instituted a separate action against Tenant by filing a Complaint for Damages and Demand for Jury Trial in the Marion County Superior Court alleging breach of the lease agreement and damages to the property. Id. The proceedings in the Wayne Township Division were transferred to the Marion Superior Court No. 10 and the two actions were consolidated. Id. On October 13, 1998, Tenant filed an Answer and Counterclaim in the Superior Court. In February 2000, the court granted summary judgment in favor of Tenant and against Landlord on the grounds that Landlord failed to comply with notice requirements related to security deposits as set forth by Indiana statutes. Id. Landlord appealed, and on September 20, 2000, a panel of this court held that Landlord had complied with the statutory notice requirement and reversed and "remand[ed] to the trial court to determine the amount of damages Landlord is entitled to, if any, and whether Tenant is entitled to reimbursement of any portion of her security deposit." Id. at 302-303. On remand, the parties continued to litigate the case for almost nine years, which included numerous continuance motions, at least two motions to dismiss under Trial Rule 41(E), unsuccessful mediation, numerous pre-trial conferences, change of counsel several times by both parties, a motion for order to appear filed by Tenant, a motion to remove 3

Tenants counsel filed by Landlord, a court order for Landlord to personally appear for her deposition, several motions for change of judge by Landlord, and various other filings with Marion Superior Court No. 10. On June 19, 2009, Tenant filed a Jury Waiver with the court in which Tenant waived trial by jury and requested the court to set the matter for a bench trial. An entry in the CCS dated June 26, 2009, states: "[Tenants] motion to waive jury trial is set for hearing on July 21, 2009." Appellants Appendix at 21. Landlord filed a response to Tenants jury waiver, which was file-stamped on July 5, 2009, and alleged in part: "[Tenants] waiver of jury trial . . . is meaningless as I do not waive my right to the jury trial that I have demanded and to which I have an absolute constitutional right." Id. at 51. Landlords response also objected to a hearing on waiver "as being a complete waste of time as [Landlord has] not and will not ever waive [her] right to have a jury decide this case." Id. at 52. An entry in the CCS dated July 14, 2009, indicates that the court denied Landlords request to vacate the hearing set on jury waiver. The court held a hearing on July 21, 2009, at which the court stated that "once you try something in small claims court, my position is thats it youve waived your right to trial by jury," see Transcript at 11, and gave the parties additional time to submit additional arguments prior to a ruling. On August 10, 2009, Tenant filed a Brief in which she argued that Landlord waived her right to a jury trial and that Landlords complaint should be dismissed with prejudice. On August 24, 2009, Landlord filed a Plaintiffs Brief in Support of Her Objection To Defendants Motion For Bench Trial and Response To Defendants Undenominated and 4

Untimely Motion to Dismiss Under Trial Rule 12(B)(6). On September 28, 2009, Landlord filed a notice to the Clerk that Judge Caroll has failed to either rule on a motion, set it for hearing, or obtain an extension to rule; or has delayed in ruling on a motion; and request that this case be transferred to the Supreme Court. On October 30, 2009, the court issued a written order in which it dismissed this case in its entirety, including the complaint and counterclaim, with prejudice and determined that Landlord was not entitled to a jury trial. I. The first issue is whether the trial court abused its discretion in dismissing Landlords claim. We review a trial courts order on a motion to dismiss for an abuse of discretion. Baker Mach., Inc. v. Superior Canopy Corp., 883 N.E.2d 818, 821 (Ind. Ct. App. 2008) (reviewing a motion to dismiss under Trial Rule 41(E) for an abuse of discretion), trans. denied; Shelton v. Wick, 715 N.E.2d 890, 893 (Ind. Ct. App. 1999) (reviewing a motion to dismiss under Trial Rule 12 for abuse of discretion), trans. denied. We will find an abuse of discretion if the trial courts decision is "clearly against the logic and effect of the facts and circumstances before the court, or where the trial court has misinterpreted the law. Shelton, 715 N.E.2d at 893. In its October 30, 2009 order, the trial court stated that, on its own motion, it dismissed this case "based upon its determination that all of the issues in this case arose out of the same transaction and, therefore, should have been litigated in the original proceedings, more than a dozen years ago, in the Wayne small claims court." Appellants Appendix at 26. The court also stated that "[t]he failure of the parties to litigate their claims in the original 5

action has resulted in excessive costs to the parties and, more importantly, the community" and that "[i]t is in the interest of judicial efficiency for this court to dismiss this action [in] its entirety." Id. at 26-27. Accordingly, the court ordered that "this cause be dismissed in its entirety, both as to the Complaint and Counterclaim, all with prejudice." Id. at 27. Landlord argues that "[t]he trial court was duty-bound to hold a trial as ordered by this Court of Appeals, and erred when it took it upon itself to dismiss it, with prejudice, under some undenominated ,,former litigation approach." Appellants Brief at 6. Landlord further argues that the court "erred when [it] took it upon [itself] to dismiss the entire case . . . as [it] seems to have sided with the [Tenant] and decided the case based upon a phantom affirmative defense" and that "[d]efenses which are not raised are waived." Id. at 4-5. Landlord also argues that the "[t]rial [c]ourt committed inexplicable and plain error when it dismissed this case with prejudice and [its] decision should be reversed and this case remanded for trial . . . ." Id. at 5.2 Tenant argues that Landlords "tactical avoidance of the statutory requirements prevented Court from having particular subject matter jurisdiction" and that the "[t]rial [c]ourt has authority to reconsider previous denial of TR 41(E) motion any time before final judgment." Appellees Brief at 9, 11. Tenant argues that "[w]hile the Trial Court did not specifically state the reason for the dismissal," a "reasonable interpretation of the Courts findings would be that the Court believes dismissal is warranted under either Trial Rule 12

Tenant filed an appellees brief by mail on June 21, 2010, and Landlord filed a reply brief on July 15, 2010. Thus, Landlords reply brief was untimely. See Indiana Appellate Rule 45(B)(3) ("Any appellants reply brief shall be filed no later than fifteen (15) days after service of the appellees brief.").

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(B)(8) or by reconsidering the previous Trial Rule 41(E) motions." Id. at 11. Tenant also argues that the trial courts "decision to ,,reconsider or ,,modify [its] previous denial of a dismissal pursuant to Trial Rule 41(E) is appropriate and should not be overturned on appeal." Id. at 16. We initially note that the courts October 30, 2009 order or dismissal does not cite to or rely upon any Trial Rule or statute as a basis for dismissal. We will address Tenants arguments related to dismissal under Trial Rule 41(E),3 Trial Rule 12(B)(8), and on jurisdictional grounds separately. A. Trial Rule 41(E)

Tenant argues that a "reasonable interpretation of the Courts findings would be that the Court believes dismissal is warranted . . . by reconsidering the previous Trial Rule 41(E) motions" and that "[i]n essence the continued pursuit of this case by [Landlord] had become frivolous and justified the [t]rial [c]ourt reconsidering its prior denial of [Tenants] Trial Rule 41(E) motions." Appellees Brief at 11, 15. Trial Rule 41(E) provides in part: Whenever there has been a failure to comply with these rules or when no
We note that Trial Rule 41 relates to the dismissal of actions. Subsection (A) of Rule 41 relates to voluntary dismissal as stipulated by the plaintiff and signed by all parties who have appeared in the action. Subsection (B) relates to involuntary dismissal by the court at a bench trial after the party with the burden of proof upon an issue has completed the presentation of evidence on that issue and the opposing party moves for dismissal on the ground that upon the weight of the evidence and the law there has been shown no right to relief. Trial Rule 41(B); see also I.L.E. Trial

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