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Court erred in dismissing claim with prejudice

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The Indiana Court of Appeals reversed a trial court's dismissal of a woman's claims against her former tenants, finding the court misinterpreted a previous appellate ruling to support the dismissal.

In Peg Zaremba v. Jessica and John Navarez, No. 64A05-0809-CV-254, Peg Zaremba had filed a small claims eviction complaint against the Navarezes, which the court opinion refers to as Cause No. 629. Zaremba failed to appear for the initial hearing and bench trial and her counsel requested a dismissal without prejudice, which was granted.

A few months later, Zaremba filed another claim against the Navarezes for damages, referred to in the opinion as Cause No. 3733. The trial court dismissed her claim with prejudice, ruling Zaremba failed to explain her absence from the initial hearing in Cause No. 629 and didn't file a motion under Trial Rule 60 to set aside the dismissal. The trial court ruled her failure to appear and the dismissal was res judicata. The trial court also denied Zaremba's motion to correct error, finding she failed to appear for trial and noted it is a plaintiff's obligation to seek relief from a dismissal without prejudice under T.R. 60 prior to refilling a case, citing Multivest Properties v. Hughes, 671 N.E.2d 199 (Ind. Ct. App. 1996).

But the trial court erred, both in determining the dismissal of Cause No. 629 served as res judicata and in its interpretation of Multivest. Cause No. 629 was dismissed without prejudice, which wasn't a judgment on the merits. As a result, Zaremba's complaint under Cause No. 3733 wasn't barred by res judicata, wrote Judge Elaine Brown.

The trial court misread what it believed the appellate court held in Multivest, wrote the judge. The Court of Appeals held that Indiana Small Claims Rule 10 is specific and "dismissal with prejudice is contemplated only when the plaintiff fails to appear after the claim has been refiled." Zaremba didn't fail to appear after she refiled her claim. The trial court abused its discretion by dismissing her claim with prejudice and denying her motion to correct error. The Court of Appeals remanded for further proceedings.

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  1. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  5. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

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