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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. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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