Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be                       Aug 07 2014, 10:09 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                         ATTORNEY FOR APPELLEE:

TIMOTHY O. MALLOY                               EDWARD W. HEARN
EDWARD C. LAWHEAD                               Johnson & Bell, P.C.
Malloy Etzler & Lawhead, P.C.                   Crown Point, Indiana
Highland, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

D’ARCY LAMBERT-KNIGHT,                 )
                                       )
     Appellant-Plaintiff,              )
                                       )
            vs.                        )                 No. 64A03-1310-CT-408
                                       )
JOHN S. SHELHART and JENNIFER VILLARS, )
                                       )
     Appellees-Defendants.             )


                    APPEAL FROM THE PORTER SUPERIOR COURT
                         The Honorable William E. Alexa, Judge
                           Cause No. 64D02-1212-CT-12851


                                      August 7, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE
       Appellant-Plaintiff, D’Arcy Lambert-Knight (Lambert-Knight), appeals the trial

court’s conversion of Appellee-Respondent’s, Jennifer Villars (Villars), motion to dismiss

to a motion for summary judgment.

       We affirm.

                                             ISSUES

       Lambert-Knight raises one issue on appeal, which we restate as two issues:

       (1) Whether the trial court erred by converting Villars’ motion to dismiss into a

          motion for summary judgment without giving prior notice to Lambert-Knight;

          and

       (2) Whether the statute of limitations defect was cured by Indiana Trial Rule 15(C).

                        FACTS AND PROCEDURAL HISTORY

       On January 27, 2011, Lambert-Knight, an employee of Comcast, was scheduled to

go to the home of John Shelhart (Shelhart) and Villars, located on 391 Sandalwood Road,

Valparaiso, Indiana, to perform service repairs. In the process of getting his tools and

ladder off his vehicle, Lambert-Knight fell on the snow and ice that covered the driveway.

As a result, Lambert-Knight sustained a torn left rotator cuff.

       On December 19, 2012, Lambert-Knight filed a Complaint, sounding in negligence,

and made a claim of personal injuries and damages as a result of the fall. The initial


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Complaint had only named Shelhart as the defendant, however, on January 30, 2013,

Lambert-Knight filed a motion for leave to file an amended Complaint, adding Villars as a

party to the suit. On February 1, 2013, the trial court granted Lambert-Knight’s motion.

On March 19, 2013, Villars filed a motion to dismiss on grounds that the amended

Complaint failed to state a claim against her and that the statute of limitations had run out,

therefore barring Lambert-Knight from adding her as a defendant to the suit.

       On April 5, 2013, Lambert-Knight filed a response to the motion to dismiss and

hearing was set for May 22, 2013. Neither Lambert-Knight nor his counsel attended the

hearing, and as such, the trial court proceeded ex parte. On May 23, 2013, the trial court

issued a summary judgment in favor of Villars. On May 29, 2013, Lambert-Knight filed a

motion to vacate the summary judgment Order. In a hearing held on September 6, 2013,

Lambert-Knight argued that even though the time for the statute of limitations had run out

to add Villars as a party to the suit, Trial Rule 15(C) cured that defect. Subsequently, the

trial court issued an Order on September 17, 2013, denying Lambert-Knight’s motion to

set aside the Order for Summary Judgment.

       Lambert-Knight now appeals.         Additional information will be provided as

necessary.

                             DISCUSSION AND DECISION

                     I. Propriety of Converting the Motion to Dismiss




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          Lambert-Knight contends that the trial court erred by converting Villars’ motion to

dismiss under Indiana Trial Rule 12(B)(6) into a motion for summary judgment under

Indiana Trial Rule 56. Lambert-Knight also argues that this conversion came without prior

notice.

          Where a trial court treats a motion to dismiss as one for summary judgment, the

court must grant the parties a reasonable opportunity to present T.R. 56 materials. See T.R.

12(B). The trial court’s failure to give explicit notice of its intended conversion of a motion

to dismiss to one for summary judgment is reversible error only if a reasonable opportunity

to respond is not afforded a party and the party is thereby prejudiced. Azhar v. Town of

Fishers, 744 N.E.2d 947, 950-51 (Ind. Ct. App. 2001).

          Our review of the relevant cases discloses at least three considerations pertinent to

a determination of whether a trial court’s failure to give express notice deprives the

nonmovant of a reasonable opportunity to respond with T.R. 56 materials. Id. at 950.

First, we consider whether the movant’s reliance on evidence outside the pleadings should

have been so readily apparent that there is no question that the conversion is mandated by

T.R. 12(B). Id. at 951. See Duran v. Komyatte, 490 N.E.2d 388, 391 (Ind. Ct. App. 1986),

(noting that the operation of T.R. 12(B) is “well known” and a “clear mandate” of which

counsel should be cognizant). trans. denied. Second, we consider whether there was ample

time after the filing of the motion for the nonmovant to move to exclude the evidence relied

upon by the movant in support of its motion or to submit T.R. 56 materials in response

thereto. Azhar, 744 N.E.2d at 951. See Biberstine v. N.Y. Blower Co., 625 N.E.2d 1308,


                                                4
1314 (Ind. Ct. App. 1993), reh’g denied. Third, we consider whether the nonmovant

presented a “substantiated argument” setting forth how [he] “would have submitted

specific controverted material factual issues to the trial court if [he] had been given the

opportunity.” Id.

      Mindful of these considerations, we conclude that the trial court did not commit

reversible error in converting Villars’ motion to dismiss into a motion for summary

judgment.

      Given the wording of T.R. 12(B) (6), Lambert-Knight should have known that the

trial court was compelled to convert the motion to dismiss to a motion for summary

judgment. See Duran, 490 N.E.2d at 391. Second, we find that Lambert-Knight was

afforded ample opportunity to present T.R. 56 materials. Villars’ motion to dismiss was

filed on March 19, 2013. On April 5, 2013, Lambert-Knight filed a response to Villars’

motion and on April 8, 2013, he also filed a memorandum of law in support of his response.

On May 22, 2013, the trial court held an ex parte hearing, and subsequently issued an Order

for Summary Judgment as a matter of law, for the simple reason that the action was not

commenced in a timely fashion against Villars. Lastly, we find that Lambert-Knight has

not shown what additional material he would have presented if explicit notice had been

given; nor does he argue or demonstrate how the additional materials would have altered

the outcome of the proceedings. See Ayres v. Indian Heights Volunteer Fire Department,

493 N.E.2d 1229, 1233 (Ind. 1986) (any error in failing to give notice is harmless where




                                            5
party fails to show he could have presented material which might have altered the outcome

of the proceedings).

       Based on the foregoing, we find that the trial court did not err in granting summary

judgment, dismissing Lambert-Knight’s claim. Therefore, we conclude that the trial court

properly converted Villars’ motion to dismiss to a motion for summary judgment,

                                   II. Trial Rule 15(C)

       Lambert-Knight also contends that even if the statute of limitations had expired,

Trial Rule 15(C) cured that defect. We note that the applicable statute of limitations is

determined by identifying the nature or substance of the cause of action. Schuman v.

Kobets, 716 N.E.2d 355, 356 (Ind. 1999). Because Lambert-Knight’s cause of action

involves a personal injury, the applicable statute of limitations is two years. Ind. Code §

34-11-2-4. Lambert-Knight’s amended Complaint named Villars as a defendant after the

two-year statute of limitations had expired. This notwithstanding, we note that a party may

belatedly add a party defendant after the statute of limitations has run if the requirements

of T.R. 15(C) are met.      The question, now, is whether Lambert-Knight’s amended

Complaint fulfills the requirements of T.R. 15(C). T.R. 15(C) states:

       Whenever the claim or defense asserted in the amended pleading arose out of the
       conduct, transaction, or occurrence set forth or attempted to be set forth in the
       original pleading, the amendment relates back to the date of the original pleading.
       An amendment changing the party against whom a claim is asserted relates back if
       the foregoing provision is satisfied and, within the period provided by law for
       commencing the action against him, the party to be brought in by amendment:
       (1) has received such notice of the institution of the action that he will not be
       prejudiced in maintaining his defense on the merits; and

                                             6
       (2) knew or should have known that but for a mistake concerning the identity of the
       proper party, the action would have been brought against him.


       Lambert-Knight maintains that Villars had actual notice of the filing of the original

complaint since she was Shelhart’s ex-wife, and that Shelhart must have communicated to

her about the impending suit. Lambert-Knight therefore argues that since Villars had

constructive notice of the lawsuit from its inception, the amended Complaint related back

to the original suit.

       Turning to the record, we note that Lambert-Knight filed his Complaint in

December 19, 2012. For this case, the statute of limitations would begin from the date of

the slip and fall which was January 27, 2011; and the two year period would toll on January

27, 2013. On January 30, 2013, Lambert-Knight filed an amended Complaint adding

Villars as party to the suit. Having failed to name Villars within the limitation of time

period, Lambert-Knight then bore the burden of proving that Villars either had notice that

the Complaint had been filed or knew or should have known that, except for a mistake

concerning her identity, she would have been a named defendant. See Wabash Grain, Inc.

v. Smith, 700 N.E.2d 234, 239 (Ind. Ct. App. 1998) trans. denied. Furthermore, we note

that T.R. 15(C) allows relation back for an honest error that results in a mistake of identity,

and was “not intended to save parties from the legal or tactical choices made by their

lawyers.” Porter Cnty. Sheriff Dep’t v. Guzorek, 857 N.E.2d 363, 376 (Ind. 2006).

       Here, Villars properly designated materials to the trial court which indicated that the

suit was barred because of time. On the other hand, Lambert-Knight failed to designate


                                              7
any evidence that supports his claim. Lambert-Knight presented no evidence that Villars

had notice of the impending suit or that she knew of the mistake. Under T.R. 15(C), the

plaintiff must establish that the requirements are present for T.R.15(C) to apply. Lambert-

Knight has not done so. The trial court correctly determined that Lambert-Knight did not

fulfill the requirements of T.R.15(C) and that his claim against Villars was barred by the

statute of limitations. Therefore, we conclude that the trial court correctly issued an Order

for Summary Judgment.

                                      CONCLUSION

          Based on the foregoing, we conclude that Lambert-Knight did not file his claim

within two years. Because this condition precedent was not met, Lambert-Knight’s claim

was properly dismissed pursuant to T.R. 56, and T.R. 15(C) did not revive his cause of

action.

          Affirmed.

ROBB, J. and BRADFORD, J. concur




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