Olivia Covington for www.theindianalawyer.com
The Indiana Court of Appeals has reversed summary judgment for a Marion County couple on a small claims appeal after determining the woman who brought the appeal against the couple did not violate local rules in filing the appeal.
In Karin Schwab v. Kyle Morrissey, et al, 49A02-1612-PL-2746, Karin Schwab filed a small claims complaint against Kyle and Jamie Morrissey in May 2011 alleging they had “made willful and deliberate misrepresentations regarding the central air conditioning in the property they sold to her.” The case was moved from the Washington Township division to the Franklin Township division, which entered judgment in favor of the Morrisseys on Sept. 22.
Schwab then filed the same complaint in Marion Superior Court on Nov. 18, and both parties eventually moved for summary judgment. Schwab moved to strike the Morrisseys’ motion as untimely, which the trial court granted.
The Morrisseys then filed a motion to dismiss, alleging Schwab failed to file a “petition to appeal” the small claims court judgment in the trial court — rather than merely repleading her original claims — as they claimed local court rules required. The couple also argued the small claims court had failed to certify and transmit the record of its proceedings to the trial court.
The Marion Superior Court court granted the Morrisseys’ motion to dismiss with prejudice and denied Schwab’s motion to correct error, finding that because “the procedures precedent to filing a cause of action which comes to the Marion Superior Court from the Small Claims Court of Marion County were not fulfilled, the underlying action was dismissed. To rule otherwise would eviscerate the Marion County Local Rules on Small Claims Court cases and render Small Claims courts ineffective.”
Schwab’s pending motion for summary judgment was then denied as moot, so she appealed, arguing the trial court’s decision was erroneous. The Indiana Court of Appeals agreed, with Judge Mark Bailey writing in a Friday opinion that the trial court failed to show which local appellate procedure Schwab failed to follow.
“Moreover, it is not clear from the face of the local rule itself that an appeal of the small claims court judgment is initiated in the superior court in any way other than through the filing of a complaint,” Bailey wrote. “Although the Morrisseys contended in their motion to dismiss that this rule requires an appealing party to file a ‘petition to appeal,’ they make no mention of that contention on appeal and therefore waived it.”
Waiver notwithstanding, the appellate court found local rules only require an appealing party to file in the superior court a new complaint that repleads “in its entirety” the claims raised in the small claims action, which must be done within 20 days of the case being docketed in the Marion Superior Court and within 60 days of the small claims judgment.
Because Schwab met those requirements, she fulfilled all that was asked of her in the local rule, so the Morrisseys failed to make a prima facie showing that they are entitled to judgment as a matter of law, Bailey said. Thus, the entry of summary judgment in their favor was reversed.