Kalwitz v. Kalwitz , 934 N.E.2d 741, 753 (Ind. Ct. App. 2010) (citing Watson, 822 N.E.2d at 1029); Wells v. Bernitt, 936 N.E.2d 1242, 1252-53 (Ind. Ct. App. 2010) (citing Watson, 822 N.E.2d at 1029); see Miller v. Schrader, No. 1:08-cv-189, 2010 WL 4363180 *7 (N.D. Ind. Oct. 27, 2010) (Moody, J.) (citing Kalwitz, 934 N.E.2d at 753).
There is no Small Claims Rule regarding changes of judge; therefore, Trial Rule 76 applies. Kalwitz v. Kalwitz, 934 N.E.2d 741, 749 (Ind.Ct.App.2010). Trial Rule 76(C) sets forth the following deadline for a motion for change of judge:
To maintain an abuse of process claim, the claimant must prove: (1) an ulterior purpose or motive, and (2) a willful act in the use of process not proper in the regular conduct of the pro- ceeding. Kalwitz v. Kalwitz, 934 N.E.2d 741, 753 (Ind. Ct. App. 2010). The second element asks whether the use of process was a legitimate use of the judicial system.
"The clearly erroneous standard applies to appellate review of facts determined in a bench trial with due regard given to the opportunity of the trial court to assess witness credibility." Kalwitz v. Kalwitz, 934 N.E.2d 741, 748 (Ind.Ct.App. 2010). "This deferential standard of review is particularly important in small claims actions, where trials are informal, with the sole objective of dispensing speedy justice between the parties according to the rules of substantive law."
In determining whether a judgment is clearly erroneous, we do not reweigh the evidence or determine the credibility of witnesses, and we consider only the evidence and reasonable inferences that support the judgment. Kalwitz v. Kalwitz , 934 N.E.2d 741, 748 (Ind. Ct. App. 2010). [7] Because Defendant had the burden of proof at trial, he appeals from a negative judgment.
“Although Indiana Trial Rule 52(A), which governs the effect of findings by the trial court, does not apply in small claims proceedings, ... the small claims court's findings here, while not binding, are nevertheless helpful to this Court in reviewing the judgment.” Kalwitz v. Kalwitz, 934 N.E.2d 741, 748 (Ind.Ct.App.2010) (citing Bowman v. Kitchel, 644 N.E.2d 878, 878 (Ind.1995)). The clearly erroneous standard applies to appellate review of facts determined in a bench trial with due regard given to the opportunity of the small claims court to assess witness credibility.
In assessing res judicata arguments, courts consider the following factors: (1) the former judgment was rendered by a court of competent jurisdiction; (2) the former judgment was rendered on the merits; (3) the matter now at issue was, or could have been, determined in the prior action; and (4) the controversy adjudicated in the former action was between parties to the present suit or their privies." Kalwitz v. Kalwitz, 934 N.E.2d 741, 750 (Ind. Ct. App. 2010). Upon review of Stafford, the court finds that the doctrine of res judicata applies to Mr. Counce's claims for injunctive relief.
Indiana law provides that claim preclusion applies when "all matters that were or might have been litigated are deemed conclusively decided by the judgment in the prior action." Kalwitz v. Kalwitz, 934 N.E.2d 741, 750 (Ind. Ct. App. 2010). Here, it is undisputed that the former judgment was rendered by a court of competent jurisdiction on the merits and that the controversy adjudicated in the former action was between parties to the present suit; it appears that Yisrayl's argument centers solely on whether all matters now at issue were, or could have been, determined in the prior action.
In Indiana, for res judicata, or claim preclusion to apply, the question is whether the following four factors have been met: (1) the former judgment was rendered by a court of competent jurisdiction; (2) the former judgment was rendered on the merits; (3) the matter now at issue was, or could have been, determined in the prior action; and (4) the controversy adjudicated in the former action was between parties to the present suit or their privies." Kalwitz v. Kalwitz, 934 N.E.2d 741, 750 (Ind. Ct. App. 2010). "Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.
In Indiana, for res judicata, or claim preclusion to apply, the question is whether the following four factors have been met: (1) the former judgment was rendered by a court of competent jurisdiction; (2) the former judgment was rendered on the merits; (3) the matter now at issue was, or could have been, determined in the prior action; and (4) the controversy adjudicated in the former action was between parties to the present suit or their privies." Kalwitz v. Kalwitz, 934 N.E.2d 741, 750 (Ind. Ct. App. 2010). It is quite clear that Yisrayl's claim fits the bill.