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FOR PUBLICATION

ATTORNEY FOR APPELLANT: TIMOTHY E. VOJSLAVEK Vojslavek & Catsadimas, P.C. Valparaiso, Indiana

FILED
Dec 30 2008, 8:45 am
of the supreme court, court of appeals and tax court

CLERK

IN THE COURT OF APPEALS OF INDIANA
PEG ZAREMBA, ) ) Appellant-Plaintiff, ) ) vs. ) ) JESSICA NEVAREZ and JOHN NEVAREZ, ) ) Appellees-Defendants. )

No. 64A05-0809-CV-524

APPEAL FROM THE PORTER SUPERIOR COURT The Honorable David L. Chidester, Judge Cause No. 64D04-0807-SC-3733

December 30, 2008

OPINION - FOR PUBLICATION

BROWN, Judge

Peg Zaremba appeals the trial courts dismissal with prejudice of her claim against Jessica Nevarez and John Nevarez for rent and damages. Zaremba raises two issues, which we consolidate and restate as whether the trial court abused its discretion by denying Zarembas motion to correct error concerning the trial courts dismissal with prejudice of Zarembas complaint. We reverse and remand. The relevant facts follow. On February 1, 2008, Zaremba filed a small claims eviction complaint against the Nevarezes under Cause Number 64D04-0802-SC-629 ("Cause No. 629"). On February 22, 2008, the trial court held a hearing on ejectment with both parties present.1 Zaremba advised the trial court that the Nevarezes had

vacated the premises. The trial court set a hearing on damages for March 14, 2008. On March 14, 2008, the trial court entered an order indicating that the parties appeared for an initial hearing and setting a bench trial for May 30, 2008. On May 30, 2008, Zaremba failed to appear, but her counsel appeared and requested dismissal without prejudice. The trial court dismissed the matter without prejudice. On July 7, 2008, Zaremba filed a claim against the Nevarezes for $2,063.39 in connection with the rental property under Cause Number 64D04-0807-SC-3733 ("Cause No. 3733"). On August 14, 2008, the trial court dismissed Zarembas claim with

prejudice. The trial courts order states: On May 30, 2008 the matter of Zaremba v. Jessica and John Nevarez in 64D04-0807-SC-3733 was dismissed because [Zaremba] failed
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The record does not contain a copy of the transcript from this hearing.

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to appear for bench trial.[2] The trial was set after [the Nevarezes] appeared at Damages Hearing and contested the amount that [Zaremba] had sought in post-possession damages. [Zaremba]s Attorney set forth no reason for [Zaremba]s failure to appear and filed no motion under Trial Rule 60 to set aside the dismissal. The finding of dismissal served as res judicata on this subsequent filing, which appears to be an attempt by [Zaremba] to circumvent the dismissal for [Zaremba]s failure to appear. The actions of [Zaremba]s Attorney in attempting to file a new claim for damages after the previous matter was dismissed for his clients failure to appear are contrary to the spirit, intent and findings made in SC3773. [Zarembas] failure to appear and the dismissal is res judicata. This matter is dismissed with prejudice. Appellants Appendix at 20. On August 19, 2008, Zaremba filed a motion to correct error and argued that the trial court erred by relying on the dismissal without prejudice of Cause No. 629 as a basis for res judicata.3 The trial court entered the following order denying Zarembas motion to correct error: The Court finds as follows: 1. On May 30, 2008, in the cause number 64D04-0807-SC-3733 entitled Zaremba versus Nevarez, [Zaremba] did not appear for trial. Counsel for [Zaremba] had no explanation for her whereabouts and failure to appear. The Court asked counsel whether he wanted a continuance, whether he wanted to proceed with [the Nevarezes] as his witness, or whether he wanted to dismiss her claim without

Zaremba argues that the trial court "incorrectly refers to the earlier proceeding as Case No. 64D04-0807-SC-3733. The undersigned assumes that Trial Court meant to refer to Case No. 64D040802-SC-629." Appellants Brief at 2 n.1. We likewise believe this to be the case.
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Zaremba also argued that "[s]aid Dismissal with Prejudice purports to be based on a hearing that took place in the above-captioned cause on May 30, 2008, and ,,the spirit, intent and findings made therein. As no such hearing could possibly have taken place in the above-captioned cause seeing how it was not even filed until several weeks later, the undersigned assumes that the Court meant to reference the hearing of May 30, 2008, in Cause No. 64D04-0802-SC-629." Appellants Appendix at 22.
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prejudice for damages, post eviction.[] [Zaremba]s counsel chose dismissal without prejudice. The Court specifically advised [Zarembas attorney] that if [Zaremba] missed the hearing due to excusable neglect or emergency, to file a Rule 60 Motion within 60 days. [Zaremba] filed nothing. 2. [Zaremba] then filed this cause of action for damages, knowing that she had failed to follow the courts directive to file a Rule 60 Motion to reinstate the cause of action. The action in SC-3733 could not proceed to the merits because [Zaremba] did not show up. It would not be fair to [the Nevarezes], who appeared for trial, to be later sued for the same claim in which the opposing party failed to appear. In both the Journeys Account Statute and the caselaw interpreting Small Claims Rule 10([B]),4 the negligence of the Plaintiff who fails

3.

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In its entirety, Small Claims Rule 10 provides: Dismissal. If the plaintiff fails to appear at the time and place specified for the trial, or for any continuance thereof, the court may dismiss the action without prejudice. If a counterclaim has been filed the court may grant judgment for the defendant after first making an inquiry similar to that required by S.C. 10(B) in the case of default judgments. If the claim is refiled and the plaintiff again fails to appear such claim may be dismissed with prejudice. Default. If the defendant fails to appear at the time and place specified for the trial, or for any continuance thereof, the court may enter a default judgment against him. Before default judgment is entered, the court shall examine the notice of claim and return thereof and make inquiry, under oath, of those present so as to assure the court that: (1) Service of notice of claim was had under such circumstances as to establish a reasonable probability that the defendant received such notice. Within the knowledge of those present, the defendant is not under legal disability and has sufficient understanding to realize the nature and effect of the notice of claim. The plaintiff has a prima facie case.

(A)

(B)

(2)

(3)

After such assurance, the court may render default judgment and, upon entering such judgment, shall assess court costs against the defendant. (C) Setting Aside Default. Upon good cause shown the court may, within one year after entering a default judgment, vacate such judgment and reschedule the hearing of the original claim. Following the expiration of one year, the judgment

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to appear and prosecute the action is an exception to the rule allowing subsequent refiling of an action. See e.g. Kohlman v. Finkelstein, 509 N.E.2d 228 (Ind. App. 1987) and Multivest Properties v. Hughes, 671 N.E.2d 199 (Ind. Ct. App. 1996). In the Multivest case, it was particularly noted that it is Plaintiff s obligation to seek relief from the dismissal without prejudice under Rule 60 prior to refiling the case. Id. at 31. Before addressing Zarembas arguments we note that the Nevarezes did not file an appellees brief. When an appellee fails to submit a brief, we do not undertake the burden of developing appellees arguments, and we apply a less stringent standard of review, that is, we may reverse if the appellant establishes prima facie error. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App. 2006). This rule was established so that we might be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. Wright v. Wright, 782 N.E.2d 363, 366 (Ind. Ct. App. 2002). The sole issue is whether the trial court abused its discretion by denying Zarembas motion to correct error concerning the trial courts dismissal with prejudice of Zarembas complaint. The standard of appellate review of trial court rulings on motions to correct error is abuse of discretion. Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048, 1055 (Ind. 2003). An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before the court, including any reasonable inferences therefrom. Id.
debtor may seek a reversal of the original judgment only upon the filing of an independent action, as provided in Ind. R. Tr. P. 60(B).

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Zaremba argues that the trial court abused its discretion when it: (A) determined that a previous dismissal without prejudice could serve as res judicata for a subsequent refiling of the same claim; and (B) stated that a plaintiff who fails to appear one time for trial in a small claims case was required to seek relief pursuant to Ind. Trial Rule 60. We will address these arguments separately. A. Res Judicata The trial court dismissed Zarembas complaint in Cause No. 3733 with prejudice because the finding of dismissal in Cause No. 629 "served as res judicata" for the subsequent complaint. Appellants Appendix at 20. Zaremba argues that the dismissal of Cause No. 629 cannot serve as the basis for res judicata. We agree. "Under the doctrine of res judicata, ,,a judgment rendered on the merits is an absolute bar to a subsequent action between the same parties or those in privity with them on the same claim or demand." Gill v. Pollert, 810 N.E.2d 1050, 1057 (Ind. 2004) (quoting Sullivan v. American Cas. Co., 605 N.E.2d 134, 137 (Ind. 1992)). "For principles of res judicata to apply, there must have been a final judgment on the merits and that judgment must have been entered by a court of competent jurisdiction." Matter of Sheaffer, 655 N.E.2d 1214, 1217 (Ind. 1995). In Cause No. 629, Zarembas attorney requested dismissal without prejudice and the trial court dismissed the matter "without prejudice." Appellants Appendix at 17. Because Cause No. 629 was dismissed without prejudice, it was not a judgment on the merits. Consequently, we conclude that Zarembas complaint in Cause No. 3733 was not 6

barred by the doctrine of res judicata. See, e.g., In re L.B., 889 N.E.2d 326, 333-334 (Ind. Ct. App. 2008) (holding that the second petition for the involuntary termination of fathers parental rights to his children was not barred by the doctrine of res judicata because the first petition was dismissed without prejudice due to a procedural error and did not finally determine the underlying issues on the merits); Wood v. Zeigler Bldg. Materials, Inc., 436 N.E.2d 1168, 1170 (Ind. Ct. App. 1982) ("A dismissal without prejudice is not a determination of the merits of a complaint and does not bar a later trial of the issues."); C. L. B. v. S. T. P., 167 Ind. App. 10, 15, 337 N.E.2d 582, 585 (1975) ("We are of the opinion that the first petition filed by the petitioner was not res judicata as there was no judgment rendered on the merits and there was no adjudication in the former suit. In fact the cause was dismissed sua sponte without prejudice by the court. ") Thus, we conclude that the trial court abused its discretion by dismissing Zarembas claim on this basis. B. Ind. Trial Rule 60 The trial courts order denying Zarembas motion to correct error states that Zaremba failed to file a motion under Ind. Trial Rule 60 to reinstate the cause of action. Specifically, the trial court cited Kohlman v. Finkelstein, 509 N.E.2d 228 (Ind. Ct. App. 1997), rehg denied, trans. denied, for the proposition that "[i]n both the Journeys Account Statute and the caselaw interpreting Small Claims Rule 10([B]), the negligence of the Plaintiff who fails to appear and prosecute the action is an exception to the rule allowing subsequent refiling of an action." Appellants Appendix at 31. The court in 7

Kohlman addressed Indianas Journeys Account Statute, Ind. Code

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