Dempsey v. Belanger
2011 Ind. App. LEXIS 1917
| Ind. Ct. App. | 2011Background
- Dempsey, an Indiana attorney representing himself, owned a Kessler Boulevard property with two rental units.
- Chase, represented by Belanger, obtained a writ of possession after an execution sale that left Carters’ judgment untouched.
- Dempsey was evicted on July 19, 2005, the day of a family viewing and funeral for his cousin.
- In 2004–2007, federal litigation against Chase culminated in dismissal on merits, with one claim remanded to state court and fees awarded against Dempsey.
- In July 2007, Dempsey filed a personal suit against Belanger; Belanger moved to dismiss; court dismissed on September 17, 2007, on grounds not expressly stated; Dempsey did not appeal.
- On August 26, 2010, Dempsey moved to reinstate the Belanger action; trial court denied; this appeal followed; Belanger seeks appellate fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Journey's Account Statute applies to reinstate a merits-dismissed action | Dempsey argues JAS permits continuation after merits dismissal | Belanger asserts JAS requires dismissal on limited grounds and does not apply here | JAS does not apply; merits dismissal forecloses revival |
| Whether Indiana Trial Rule 60(B)(7) supports reinstatement | Dempsey relies on reversed/vacated related judgments | Belanger argues 60(B)(7) not applicable and no timely, extraordinary circumstances | Trial Rule 60(B)(7) does not support reinstatement |
| Whether the trial court properly awarded attorney's fees to Belanger | Dempsey contends no fees should be awarded | Belanger shows frivolous, unreasonable, or groundless conduct | Court did not abuse discretion; fees affirmed; appellate fees remanded for calculation |
Key Cases Cited
- Al-Challah v. Barger Packaging, 820 N.E.2d 670 (Ind.Ct.App.2005) (defines JAS failure to obtain merits decision)
- Cox v. Am. Aggregates Corp., 684 N.E.2d 193 (Ind.1997) (refines continuation when merits not obtained; statute of limitations)
- Eads v. Cmty. Hosp., 932 N.E.2d 1239 (Ind.2010) (JAS applicability where merits issue; distinguishing lack of jurisdiction)
- Thacker v. Bartlett, 785 N.E.2d 621 (Ind.Ct.App.2003) (dismissal on merits; appeal rights; effectiveness of amendments)
- Masterson v. State, 511 N.E.2d 499 (Ind.Ct.App.1987) (timeliness and discretion in Rule 60(B) relief)
- Dempsey v. JP Morgan Chase Bank, 335 Fed.Appx. 614 (7th Cir.2009) (Seventh Circuit remand and fee considerations; related but separate)