                                                                       FILED
                                                                   Aug 25 2017, 8:55 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court



ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
Jacob R. Cox                                               Mark E. Small
Cox Law Office                                             Indianapolis, Indiana
Indianapolis, Indiana
                                                           Roberta L. Ross
                                                           Ross & Brunner
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Karin Schwab,                                              August 25, 2017
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           49A02-1612-PL-2746
        v.                                                 Appeal from the Marion Superior
                                                           Court
Kyle Morrissey, et al.,                                    The Honorable John M.T. Chavis,
Appellees-Defendants.                                      II, Judge
                                                           Trial Court Cause No.
                                                           49D05-1111-PL-44470



Bailey, Judge.




Court of Appeals of Indiana | Opinion 49A02-1612-PL-2746 | August 25, 2017                 Page 1 of 11
                                           Case Summary

[1]   Karin Schwab (“Schwab”) appeals the trial court’s grant of summary judgment

      to Kyle Morrissey and Jamie Morrissey (collectively, “the Morrisseys”) on

      Schwab’s appeal of a small claims court judgment.


[2]   We reverse.



                                                     Issues
[3]   Schwab raises two issues on appeal but we address only the dispositive issue of

      whether the trial court erred in granting the Morrisseys summary judgment

      because Schwab failed to perfect her appeal of a small claims court judgment.



                             Facts and Procedural History
[4]   On May 4, 2011, Schwab filed a complaint against the Morrisseys in the

      Washington Township division of the Marion County small claims court.

      Schwab’s complaint alleged that the Morrisseys made willful and deliberate

      misrepresentations regarding the central air conditioning in the property they

      sold to her. Following the Morrisseys’ motion for a change of judge, Schwab’s

      case was moved to the Franklin Township division of the small claims court.

      The small claims court held a bench trial on September 22 and on that same

      day entered a final judgment in favor of the Morrisseys. On November 18,

      Schwab filed in Marion County superior court a complaint in which she repled

      her claims from the small claims court case; specifically, Schwab alleged that
      Court of Appeals of Indiana | Opinion 49A02-1612-PL-2746 | August 25, 2017   Page 2 of 11
      the Morrisseys knowingly made misrepresentations to her regarding the air

      conditioning in the property they sold to her. On March 5, 2012, the

      Morrisseys filed an answer and motion to dismiss for failure to state a claim.

      Per agreement of the parties and permission of the trial court, on July 3 the

      Morrisseys filed an amended answer in which they raised, among other

      defenses, the affirmative defenses of failure to state a claim and res judicata.


[5]   On April 4, 2016, Schwab filed a motion for summary judgment and, on June

      1, the Morriseys filed their own motion for summary judgment. Schwab moved

      to strike the Morrisseys’ summary judgment motion as untimely and, on

      August 30, the trial court granted the motion to strike. Following an August 30

      hearing on Schwab’s motion for summary judgment, the trial court took the

      matter under advisement.


[6]   On September 2, the Morrisseys filed a motion to dismiss in which they alleged

      that Schwab had failed to follow the Marion County rules for filing an appeal of

      a small claims court judgment. Specifically, they contended that the Marion

      County rules required Schwab to file in the superior court a “petition to appeal”

      the small claims court judgment rather than simply repleading the claims she

      had raised in the small claims court. Appellant’s App. at 94. The Morrisseys

      also asserted that the court should dismiss Schwab’s complaint because the

      small claims court had failed to certify and transmit to the superior court the

      record of the small claims court proceedings. In support of its motion to




      Court of Appeals of Indiana | Opinion 49A02-1612-PL-2746 | August 25, 2017   Page 3 of 11
      dismiss, the Morrisseys referred the superior court to an “Affidavit.”1 Id. at 94-

      95. On October 4, Schwab filed her response to the motion to dismiss in which

      she argued that she had followed the correct appeal procedures and, in the

      alternative, that her action was an action independent of the small claims court

      action and could not be dismissed as res judicata because the Morrisseys had

      failed to raise res judicata as an affirmative defense in their answer.


[7]   On October 7, 2016, the trial court granted the Morrissey’s September 12

      motion to dismiss with prejudice. In a November 9 order denying Schwab’s

      subsequent motion to correct error, the trial court stated in relevant part as

      follows:

               The Plaintiff misconstrues her obligations under LR49-TR79.1 -
               Rule 226. 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.
               Therefore, the Plaintiff’s Motion to Correct Error is denied.


      Appellee’s App. at 19.


[8]   On November 9, the trial court denied Schwab’s pending motion for summary

      judgment as moot. Schwab now appeals the order dismissing her case.




      1
        Although the appellate record contains the Morrisseys’ Motion to Dismiss, it does not contain the affidavit
      to which that motion refers.

      Court of Appeals of Indiana | Opinion 49A02-1612-PL-2746 | August 25, 2017                       Page 4 of 11
                                    Discussion and Decision
[9]    Schwab contends that the trial court erred in dismissing her case for failure to

       follow proper appeal procedures. Because the Morrisseys filed their motion to

       dismiss after filing their answer, the motion to dismiss is treated as a motion for

       judgment on the pleadings.2 Ind. Trial Rule 12(C); Bell v. Bryant Co., Inc., 2

       N.E.3d 716, 719 (Ind. Ct. App. 2013). Moreover, because the Morrisseys’

       motion presented “matters outside” the pleadings—i.e., the Affidavit—Indiana

       Trial Rule 12(C) requires that their motion be treated as a motion for summary

       judgment. See, e.g., Holmes v. Celadon Trucking Serv. of Ind., Inc., 936 N.E.2d

       1254, 1255-56 (Ind. Ct. App. 2010) (quotations and citation omitted) (“If, on a

       motion for judgment on the pleadings, matters outside the pleadings are

       presented to and not excluded by the court, the motion shall be treated as one

       for summary judgment and disposed of as provided in Trial Rule 56.”) 3


[10]   Our standard of review for summary judgment is well settled. When reviewing

       a grant or denial of summary judgment, we apply the same standard as the trial

       court. Id. at 1256.




       2
         Thus, Schwab is incorrect when she asserts that the Morrisseys’ motion was untimely. Appellant’s Br. at
       10 n.1. See Ind. Trial Rule 12(H)(2) (“A defense of failure to state a claim upon which relief can be granted
       … may be made … by motion for judgment on the pleadings.”), and T.R. 12(C) (“After the pleadings are
       closed but within such time as to not delay the trial, any party may move for judgment on the pleadings.”).
       3
         We note that, where a motion for judgment on the pleadings is treated as a motion for summary judgment,
       all parties must be given a “reasonable opportunity to present all material made pertinent” to the motion for
       summary judgment. T.R. 12(C). Schwab does not claim she was deprived of such an opportunity and, in
       fact, she filed a response to the Morrisseys’ motion.

       Court of Appeals of Indiana | Opinion 49A02-1612-PL-2746 | August 25, 2017                         Page 5 of 11
                The party moving for summary judgment has the burden of
                making a prima facie showing that there is no genuine issue of
                material fact and that the moving party is entitled to judgment as
                a matter of law. Once these two requirements are met by the
                moving party, the burden then shifts to the non-moving party to
                show the existence of a genuine issue by setting forth specifically
                designated facts. Any doubt as to any facts or inferences to be
                drawn therefrom must be resolved in favor of the non-moving
                party.


       Daviess-Martin Cty. Joint Parks and Recreation Dep’t v. Estate of Abel by Abel, 77

       N.E.3d 1280, 1285 (Ind. Ct. App. 2017) (citations omitted).


[11]   Here, the trial court granted the Morrisseys’ motion because it found that

       Schwab had failed to follow the correct appeal procedures. There are no

       material factual disputes regarding the steps Schwab took to appeal the small

       claims court judgment. Rather, the only question is one of law, namely,

       whether the applicable local rule required Schwab to take some step(s) to

       perfect her appeal which she did not take. We review that question de novo.4

       Id.




       4
          The Morrisseys’ motion contended that the small claims court had explained Schwab’s appeal rights “in
       detail,” and, in support of that contention, they noted, “(See Affidavit).” Appellant’s App. at 94-95. Neither
       party has included that affidavit in their appendices. However, that document is not necessary to our review
       as the meaning of the local rule is a question of law to be decided by the courts, not a question of fact to be
       litigated through affidavits or other testimony. See, e.g., Angelopoulos v. Angelopoulos, 2 N.E.3d 688, 698 (Ind.
       Ct. App. 2013), trans. denied.; see also South Bend Tribune v. South Bend Cmty. Sch. Corp., 740 N.E.2d 937, 938
       (Ind. Ct. App. 2000) (“[A] question of statutory interpretation … is a question of law reserved for the
       courts.”).

       Court of Appeals of Indiana | Opinion 49A02-1612-PL-2746 | August 25, 2017                           Page 6 of 11
[12]   Appeals from judgments of the Marion County small claims court must be

       taken to the Marion County superior court and must be tried de novo. Ind.

       Code § 33-34-3-15 (2011). Marion County local rules govern the procedures for

       such appeals. Id. The applicable Marion County local rule provides in full:


               A.      Issues. A cause of action which comes to the Marion Superior
               Court from the Small Claims Courts of Marion County for either jury
               trial or appeal shall be replead [sic] in its entirety commencing with the
               plaintiff below filing a new Complaint in compliance with the
               Indiana Rules of Trial Procedure. The new Complaint shall be filed
               within 20 days of the date the case is docketed and filed in the Marion
               Superior Court or as otherwise ordered by the Court. Failure to
               comply with this Rule shall result in the Court imposing
               sanctions which may include dismissal or default where
               appropriate.


               B.      Procedure and Evidence. Any pleadings, motions or other
               procedural matters which are filed after the filing of the
               Complaint in the Marion Circuit and Superior Court will be
               governed by the Indiana Rules of Trial Procedure and the
               Marion Circuit and Superior Court Rules. Evidentiary questions
               will be ruled on in the same manner as any other cases originally
               filed in the Marion Circuit and Superior Court.


               C.    Appeals from Marion County Small Claims Courts. The
               following rules shall govern all appeals from the Marion County
               Small Claims Courts to the Marion Superior Court.


                        (1)    Any party may appeal from the judgment of the Marion
                        County Small Claims Court to the Marion Superior Court,
                        within 60 days from its entry; and when there are two or
                        more plaintiffs or defendants, one or more of such
                        plaintiffs or defendants may appeal without joining the

       Court of Appeals of Indiana | Opinion 49A02-1612-PL-2746 | August 25, 2017           Page 7 of 11
                        others in such appeal or plaintiff may add new parties at
                        the time he repleads his Complaint in accordance with the
                        Indiana Rules of Trial Procedure.


                        (2)   The Small Claims Court Judge shall certify a
                        completed transcript of all the proceedings had before said
                        Judge and transmit the same, together with all other
                        papers in the cause, to the Marion County Clerk, within 20
                        days.


                        (3)    Appeals may be authorized by the Marion Superior
                        Court after the expiration of Sixty (60) days, when the
                        party seeking the appeal has been prevented from taking
                        the same by circumstances not under his control.


       LR49-TR79.1-226 (emphases added).


[13]   The trial court’s order dismissing Schwab’s appeal, and its order on her motion

       to correct error, found that Schwab failed to follow “the procedures precedent

       to filing a cause of action which comes to the Marion Superior Court from the

       Small Claims Court of Marion County.” Appellee’s App. at 19. However,

       neither order states what local appellate procedure(s) Schwab failed to follow or

       how a cause of action “comes to” the Marion superior court from the small

       claims court in the first place.


[14]   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. Although the Morrisseys

       contended in their motion to dismiss that this rule requires an appealing party


       Court of Appeals of Indiana | Opinion 49A02-1612-PL-2746 | August 25, 2017   Page 8 of 11
       to file a “petition to appeal,” Appellant’s App. at 94, they make no mention of

       that contention on appeal and therefore waived it. See, e.g., Gaddis v.

       McCullough, 827 N.E.2d 66, 72 (Ind. Ct. App. 2005), trans. denied.


[15]   Waiver notwithstanding, the local rule says nothing about a petition to appeal.

                The primary rule of statutory construction is to ascertain and give
                effect to the intent of the drafters, and the plain language of the
                statute (or ordinance) is the best evidence of the drafters’ intent.
                All words must be given their plain and ordinary meaning unless
                otherwise indicated.


       FLM, LLC v. Metro. Dev. Comm’n of Marion Cty., 76 N.E.3d 953, 957 (Ind. Ct.

       App. 2017) (citations omitted). The only action the plain language of the rule

       specifically requires of the appealing party is that he or she file in the superior

       court a new complaint repleading “in its entirety” the claims that were raised in

       the small claims court action. LR49-TR79.1-226(A). Such a complaint is to be

       “filed within 20 days of the date the case is docketed and filed in the Marion

       Superior Court,” but the rule does not specify how the case is docketed and

       filed to begin with. Id. The appeal must also be filed within sixty days from the

       date of entry of the small claims court judgment. LR49-TR79.1-226(C)(1).

       However, again, the rule does not state how the appeal is initiated.5 Id.




       5
         Although LR49-TR79.1-226 does not clearly state how an appeal is initiated in Marion County, we note
       that the meaning of this local rule will be irrelevant to small claims court judgments entered after June 30,
       2018, at which time all appeals from judgments of small claims courts, including those in Marion County,
       shall be taken to the court of appeals in the same manner as a judgment from a circuit or superior court. I.C.

       Court of Appeals of Indiana | Opinion 49A02-1612-PL-2746 | August 25, 2017                        Page 9 of 11
[16]   Nor do the parties direct us to any caselaw that would provide insight into how

       an appeal of a Marion County small claims court judgment is initiated.

       However, our own research indicates that, in at least one case, such an appeal

       was initiated by filing a complaint in the Marion County superior court.

       Watson v. Auto Advisors, Inc., 822 N.E.2d 1017, 1023-24 (Ind. Ct. App. 2005)

       (noting an appeal of a Marion County small claims court judgment was

       initiated by filing a complaint in superior court, but the appeal was “forfeited”

       because it was not filed within sixty days of the date of the small claims court

       judgment), trans. denied.


[17]   Schwab repled her small claims court case in the Marion County superior court

       within sixty days of the date of the small claims court judgment.6 And the

       superior court case was docketed on the same day Schwab filed her appeal.

       The plain language of LR49-TR79.1-226 required no more of Schwab7 in order




       § 33-34-3-15.1. Until that time, however, we must interpret the local rule as written. E.g., FLM, 76 N.E.3d at
       957.
       6
         On appeal, the Morriseys contend that Schwab’s superior court complaint did not replead her small claims
       court complaint “in its entirety” as required by the local rule. However, the Morrisseys failed to raise that
       claim before the trial court. In fact, they claimed the opposite: that Schwab had filed in the superior court “a
       mirror of her small claims case for the same issues.” Appellant’s App. at 94. Because the Morrisseys failed to
       raise in the trial court their assertion that Schwab failed to replead in the entirety, they waive that argument
       on appeal. Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004). Waiver notwithstanding, the record shows
       that Schwab’s superior court complaint sought compensation for the same alleged deliberate
       misrepresentations regarding the same air conditioning in the same property that were at issue in the small
       claims court case.
       7
         The Morrisseys also contend that Schwab failed to follow correct appeal procedures because she did not
       ensure that the small claims court certified and transferred its record to the superior court. However, the
       plain language of the local rule does not require the appellant to take any action regarding the small claims
       court record; rather, it clearly puts that burden on the small claims court. LR49-TR79.1-226(C)(2). And
       Schwab’s appeal to the superior court was governed by local rules, see I.C. § 33-34-3-15, not the Indiana
       Rules of Appellate Procedure, as the Morrisseys seem to assert in their brief. Appellees’ Br. at 13-14.

       Court of Appeals of Indiana | Opinion 49A02-1612-PL-2746 | August 25, 2017                        Page 10 of 11
       for her to perfect her appeal. Thus, the Morrisseys failed to make a prima facie

       showing that they are entitled to judgment as a matter of law, and the trial court

       erred in granting them summary judgment.


[18]   Reversed.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1612-PL-2746 | August 25, 2017   Page 11 of 11
