Previous dismissal without prejudice cannot serve as res judicata for subsequent refiling of same claim

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Peg Zaremba appeals the trial court’s 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 Zaremba’s motion to correct error concerning the trial court’s dismissal with prejudice of Zaremba’s complaint. 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 on time for trial in a small claims case was required to seek relief pursuant to Ind. Trial Rule 60.
Conclusion (slip op. at 11):  We reverse the trial court‟s dismissal of Zaremba’s claim against the Nevarezes and remand for proceedings consistent with this opinion.
Key Analysis (slip op. at 6, 10):  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 . . . Because [the previous cause] was dismissed without prejudice, it was not a judgment on the merits . . . Small Claims Rule 10 is specific and “[d]ismissal with prejudice is contemplated only when the plaintiff again fails to appear after the claim has been refiled.” Here, the record does not reveal that Zaremba failed to appear after the claim was refiled. Thus, Rule 10(A) does not contemplate dismissal with prejudice under the circumstances.

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Bose McKinney & Evans LLP is a business law firm, headquartered in Indianapolis, Indiana, serving both publicly held and privately held businesses, governmental entities and high-growth industries. Our clients include Fortune 100 companies, international manufacturers, national and regional financial institutions, agribusinesses, sports teams, university-incubated start-ups, media, utilities, cities and schools, to name a few. We strive to build strong relationships with our clients as key business advisors, to exceed expectations in the quality of our work, to be knowledgeable about our clients’ businesses and sectors, to be responsive to service needs and to continually seek to improve the delivery of client services. Our ultimate focus is on our clients.
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