Maloney v. Cline

OPINION FRIEDLANDER, Judge. Lisa Maloney appeals the granting of a motion to dismiss her cause of action against Eric and Tiffany Cline. The sole restated issue presented for review is whether the superior court erred in dismissing Maloney’s cause of action without determining whether the Clines were required to file an appeal bond. We affirm. The facts most favorable to the judgment are that, prior to December 1995, Maloney filed a complaint against the Clines in the Marion County Small Claims Court. In December 1995, Maloney’s motion for a default judgment was granted. The Clines filed a motion to set aside the default judgment, which was denied. On February 26, 1996, the Clines filed a notice to appeal to the Circuit or Superior Court of Marion County. On February 29, 1996, the judge of the Marion County Municipal Court (the court hearing the appeal) ordered the case to be re-plead in its entirety and did not require the Clines to provide an appeal bond. Specifically, the order stated that Maloney must re-plead her complaint within twenty days from the date of the order and failure to comply “will result in dismissal or default.” Record at 20. Maloney did not replead the complaint; rather, her attorney asked a municipal court clerk whether court rules mandated that the Clines file an appeal bond in conjunction with their appeal. The inquiry focused upon Rule 19(C) of the Rules of Practice and Procedure [555] of the Civil Divisions of the Municipal Courts of Marion County, which requires a party appealing from a Marion County Small Claims Court judgment to file an appeal bond. This rule was in effect when the Clines filed the notice of appeal. The clerk informed Maloney’s attorney that “the Judge said that he will clarify [the bond issue] and [the clerk] agreed ... that a Motion to Dismiss should be filed to determine if ... an appeal bond was still required.” Appellant’s Brief 4—5. In early March, Maloney filed a motion to dismiss Clines’ appeal and a supplemental pleading on pending issues. Maloney argued that, inter alia, the appeal should be dismissed because the Clines failed to file an appeal bond. On March 29, 1996 the Clines filed, inter alia, a motion to dismiss for failure to re-plead the complaint. Although not specifying the ground upon which he relied, on May 21, 1996 the superior court judge (same judge as municipal court but now a superior court through merger of the courts) granted the Clines’ motion to dismiss. Thereafter, the court denied Maloney’s motion to correct errors. This appeal ensued. Generally, when reviewing a grant of a motion to dismiss, we concentrate on the complaint and all facts must be taken as true and every reasonable inference must be drawn in the plaintiffs favor. Myers v. Moyars, 667 N.E.2d 1120 (Ind.Ct.App.1996), trans. denied. In the instant case, however, the challenge is not to the sufficiency of the complaint; rather the dispute focuses on Ma-loney’s failure to replead the complaint. As such, the trial court’s judgment is sustainable based upon any theory or basis found in the record. Id. Maloney argues that the trial court erred in dismissing her cause of action without determining whether the Clines were required to provide an appeal bond. The bond requirement, however, is of no matter when reviewing the grant of the motion to dismiss in the instant case. The dissent notes that Indiana courts have discussed the matter of small claims appellate procedure. Our supreme court has noted: [The] existence of Public Law No. 313 (creating Marion County Small Claims Court) is a deviation from the legislative attempt at uniformity of small claims litigation. However, such deviation is constitutionally acceptable in that it does not confound the existing court system. The courts created by this act are not courts of record.. Their decisions are subject to de novo review in the circuit and superior court of the county. Strube v.Sumner, 385 N.E.2d 948, 950 (Ind.Ct.App.1978), (citing In Re Public Law No. 305 and Public Law No. 309 of the Indiana Acts of 1975, (1975) 263 Ind. 506, 334 N.E.2d 659, 661). Further, in Mullis v. Martin, 615 N.E.2d 498 (Ind.Ct.App.1993), we held that when one party to a small claims action appeals, he must accept the formality of the rules of the Supreme Court and the Court of Appeals to govern that appeal. The dissent also acknowledges that Ind.Code Ann § 33-11.6-4-14 (West 1996) provides that “[a]ll appeals from judgments of the small claims court shall be taken to the superior court of the county ‘and tried de novo.’ ” Op. at 556 n. 2 (citing I.C. § 33-11.64-14). The dissent recognizes that “[i]t may well be that use of the phrase ‘de novo’ contemplates repleading the case even after an otherwise final judgment has been rendered.” Id. We believe that the de novo standard not only contemplates repleading, but authorizes that litigation which reaches the appellate court, to in essence, begin anew in regards to the pleadings. Therefore, the reviewing court can require the complaint to be repled. The court, pursuant to its authority, ordered Maloney to replead her complaint within a twenty-day period or risk dismissal.1 [556] Maloney does not dispute that she was aware of this instruction. Further, she does not argue that the court lacks authority to issue the requirement. Maloney did not replead her complaint and the court dismissed the cause of action based upon this failure. The trial court did not err. Judgment affirmed. BAKER, J., concurs. SULLIVAN, J., dissents with separate opinion. Footnotes [1] We disagree with the dissent's implication that the authority to order the repled complaint arises from the Rule 18 of the Marion County Rules of Practice and Procedure. The dissent is correct, such rule did not become effective until March 1, 1996. The appropriate authority arose from case law regarding the de novo standard of review afforded appeals from Marion County Small Claims judgments.