Rule 1. Trial de Novo Following Civil Judgment
Effective January 1, 2011
(A) Application.
A party who has a statutory right to a trial de novo in circuit or superior court after entry of a judgment in a civil action by a city court or an appeal after entry of a judgment in a civil action by a town court described in IC 33-35-2-5 may request and shall receive the trial de novo as provided in this Rule. As used in Rule 1, all references to a city court shall also include a town court described in IC 33-35-2-5.
(B) Demand.
(1) Within fifteen (15) days after the city court enters its judgment, the party seeking the trial de novo shall file a written “Request for Trial de Novo” with the clerk of the circuit court in the county in which the city court is located.
(2) The request for trial de novo shall:
(a) state the requesting party's name, address, and telephone number;
(b) state the requesting party's attorney's name, address, and telephone number;
(c) state the opposing party or parties' names, addresses, and telephone numbers;
(d) state the opposing party's or parties' attorneys' names, addresses, and telephone numbers;
(e) state the name of the city court in which judgment was entered against the defendant;
(f) state the date on which judgment was entered in the city court;
(g) request a new trial in the circuit or superior court; and
(h) indicate whether the party filing the request demands or waives the right to have the new trial be by jury.
(3) The party filing the Request for Trial de novo shall attach to it:
(a) a copy of the original complaint filed with the city court;
(b) a copy of each responsive pleading filed with the city court; and
(c) a copy of the judgment entered by the city court.
(4) Except as ordered by the circuit or superior court, the clerk of the circuit court shall not accept or file a Request for Trial de novo for filing:
(a) without the copies of the original complaint, responsive pleadings, and city court judgment;
(b) more than fifteen (15) days after the date the city court entered its judgment; and
(c) without the bond or other undertaking, or affidavit of indigency required by Subsection (C) of this rule.
(C) Bond or Other Undertaking and Affidavit of Indigency.
(1) The party filing the Request shall file with the clerk of the circuit court a surety bond or cash deposit, payable to the party's opponent or parties' opponent, in an amount sufficient to secure the opponent's or opponents' claims and interest and court costs, and undertaking both the litigation of the trial de novo to a final judgment and payment of any judgment entered against the party filing the request by the trial de novo court.
(2) If unable to afford a surety bond or cash deposit, the party filing the request may instead file an affidavit of indigency setting forth information which establishes that the party is unable to afford the required surety bond or cash deposit. The party shall attach to the affidavit of indigency that party's personal undertaking, in writing, to prosecute the trial de novo to final judgment and to pay any judgment which might be entered against that party.
(D) Belated Request for Trial de Novo.
When circumstances beyond a party's control prevent the party from filing a timely and complete request for trial de novo, the party may apply for an order from the circuit or superior court directing the clerk of the circuit court to accept and file the party's belated Request for Trial de novo. The application to the circuit or superior court for the order shall be verified under Trial Rule 11 and shall state facts which demonstrate that the applying party's failure to file a timely and complete request for trial de novo was due to circumstances beyond the party's control. The court shall rule on the application without a hearing after giving the opposing parties fifteen (15) days to file written objections.
(E) Filing and Court Assignment.
The clerk of the circuit court shall docket the Request for Trial de novo and the copies of the complaint and any responsive pleadings as a civil action in a circuit or superior court in the county. The court to which the request is assigned has full jurisdiction of the case and of the parties from the time the request for the trial de novo is filed with the clerk of the circuit court.
(F) Notice to Party or Parties' Opponent.
Promptly after the request for trial de novo is filed, the clerk of the circuit court shall send notice of the request to the party or parties' opponent named in the request.
(G) Notice to City Court of De Novo Filing.
Upon the filing of a request for trial de novo, the clerk of the circuit court shall promptly send notice of the filing of the request with a copy of the city court's judgment to the city court from which the trial de novo is taken. The city court shall within fifteen (15) days of its receipt of the notice vacate its judgment and shall send notice of the vacation of the judgment to any agency or entity to which it had sent notice of its judgment.
(H) Withdrawal or Dismissal of Request for Trial De Novo.
(1) The party who files the request for trial de novo may at any time prior to the trial de novo in circuit or superior court withdraw the request by filing a written motion of withdrawal with the circuit or superior court. The court shall grant the motion and shall send notice of its order dismissing the proceeding de novo to the city court with an order to the city court to reinstate its judgment.
(2) The circuit or superior court may, on its own motion or on the motion of the party or parties who did not request the trial de novo, for good cause dismiss a request for trial de novo and order the city court to reinstate its judgment.
(I) Pleadings and Pretrial Procedures.
(1) The Indiana Small Claims Rules shall apply to the trial de novo unless:
(a) the request for trial de novo demands that the trial be by jury;
(b) the party opponent files within fifteen days of the filing of the request for trial de novo a demand for trial by jury; or
(c) the party opponent, if that party was the plaintiff or claimant in the city court, demands within fifteen (15) days of the filing of the request that the trial be pursuant to the Indiana Rules of Trial Procedure.
(2) Whether the trial de novo is subject to Small Claims Rules or Trial Rules, the copies of the original complaint and any responsive pleadings filed with the request for trial de novo shall serve as the pleadings for the action in circuit or superior court. In trials de novo to which the Trial Rules apply, both the original complaint and responsive pleadings will be considered pleadings to which no responsive pleading is required or permitted.
(J) Limit on De Novo Trial Judgment.
The court trying the case de novo shall not enter judgment in an amount higher than the statutory maximum limit on judgments which applied in the city court from which the trial de novo was taken, to which may be added, without it counting toward the statutory limit, interest on the de novo court's judgment beginning from the date the city court's judgment was entered.