                                                       Feb 26 2014, 9:49 am
FOR PUBLICATION


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

ELIZABETH D. TATE-NORWOOD                          RACHEL E. YARCH
Highland, Indiana                                  KATHRYN BIRKS HARVEY
                                                   Kopon Airdo, LLC
                                                   Chicago, Illinois


                              IN THE
                    COURT OF APPEALS OF INDIANA

JACQUELYN WEBSTER GREEN,                           )
as personal representative of the estate           )
of Mary A. Webster, deceased,                      )
                                                   )
               Appellant-Plaintiff,                )
                                                   )
                       vs.                         )      No. 45A04-1307-CT-344
                                                   )
HOUSING AUTHORITY OF THE CITY                      )
OF GARY, INDIANA, ET AL.,                          )
                                                   )
               Appellees-Defendants.               )


                           APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Sophia J. Arshad, Judge Pro Tempore
                                   Cause No. 45D10-1111-CT-213



                                           February 26, 2014

                               OPINION–FOR PUBLICATION

BAKER, Judge
       Appellant-plaintiff Jacquelyn Webster Green appeals the trial court’s grant of a

motion to dismiss in favor of appellees-defendants the Housing Authority of the City of

Gary Indiana (GHA) et al. More particularly, Webster Green contends that the trial court

erred when it determined that the GHA had no duty to conduct “well-being” checks on its

tenants, that employees of the Woodlawn Corporation were not employees of the GHA,

and that Webster Green could not take advantage of relation back of amendments under

Indiana Rule of Trial Procedure 15(C). We find that Webster Green’s complaint states

facts that, even if true, would not support the relief requested, and affirm the judgment of

the trial court.

                                          FACTS

       On June 9, 2009, Mary Webster entered into a lease with the GHA to rent an

apartment at the Al Thomas Senior Citizen Center (Center) in Gary. The Center is an

independent living facility for low-income senior citizens. The portion of the lease

relevant to this action is as follows:

       XII. Entry of Premises during Tenancy
                                           ...
       (B) GHA Responsibilities
              1. GHA shall give tenant 48 hours written notice that GHA intends
              to enter the unit. GHA may only enter at reasonable times.
              2. GHA may enter Tenant’s dwelling unit at anytime without
              advance notification when there is a reasonable cause to believe that
              an emergency exists.

Appellant’s App. p. 66.




                                             2
         On January 13, 2010, Mary was scheduled to have two medical services

appointments with Mutya Mubanay and Henry Akinbobuyi, employees with A Plus

Home Health Care, Inc. (A Plus) at her apartment.             When Mary did not report for her

appointment, Akinbobuyi informed his supervisor, Tracy Janiga, that Mary did not keep

her appointment. Janiga did not inform the GHA that Mary had missed her appointment

until the next day. In her medical records at A Plus, Mary was listed as a fall risk.

        The next day, January 14, 2010, A Plus repeatedly asked Jana Blood and Diana

Starks, employees of Woodlawn Community Development Center (Woodlawn), to check

on Mary. Woodlawn is a private entity that contracted with the GHA to provide on-site

management, administration, and operation services for the apartment complex. When

the Woodlawn employees did enter Mary’s apartment on July 14, 2010, they found her

unresponsive. Mary died the next day of a heart condition.

       On November 22, 2011, Webster Green filed a wrongful death complaint against

the GHA (Count I) and A Plus (Count II),1 alleging that their negligence was the

proximate cause of Mary’s death. In her complaint, Webster Green argued that the GHA

had assumed a duty to conduct wellness checks on its tenants. On April 9, 2012, the GHA

filed a Rule 12(B)(6) motion to dismiss stating in part that Webster Green’s complaint

failed to establish that the GHA had any duty to perform wellness checks. On May 15,

2012, after the statute of limitations had expired, Webster Green filed her amended

complaint, adding Blood and Starks as defendants in Count III, and on June 4, 2012, the
1
  Count II is not under consideration here, and we do not venture to make any determination concerning
the liability of A Plus or its employees.
                                                  3
GHA filed a motion to dismiss, maintaining that the statute of limitations had run. On

July 31, 2012, the trial court held a hearing, at which the GHA contended that Count I

should be dismissed for failure to state a claim because the facts alleged in her amended

complaint failed to establish that the GHA owed or assumed a duty to conduct wellness

checks. The GHA also argued that Count III of the amended complaint that added Blood

and Starks as defendants should be dismissed, as Webster Green had known of Blood’s

and Stark’s identities and yet failed to join them before the litigation began. The GHA

argued that this knowledge precluded Webster Green from utilizing Indiana Trial Rule

15(C), relation back of amendments, to add Blood and Starks after the statute of

limitations had run.

       On July 30, 2013, the trial court granted the GHA’s motion to dismiss Count I and

III. It determined that:

       There are no set of circumstances under which the Plaintiff would be
       entitled to relief, as it is clear on the face of the Plaintiff’s Proposed
       Amended Complaint that Defendant GHA owed no duty to the Plaintiff and
       therefore could not act negligently (Count I) and that the additional
       defendants of Woodlawn Community Development Corporation, Jana
       Blood and Dianne Starks, were joined after the statute of limitations in this
       cause had expired, even though the Plaintiff knew fully of their identities
       prior to the commencement of litigation (Count III).

Appellant’s App. p. 84. Webster Green now appeals.




                                            4
                         DISCUSSION AND DECISION


                              I. Standard of Review

       A motion to dismiss under Indiana Trial Rule 12(B)(6) tests the legal sufficiency

of the claim. Hosler ex rel. Caterpillar, Inc., 710 N.E.2d 193, 196 (Ind. Ct. App. 1999).

The complaint must be viewed in the light most favorable to the non-moving party with

the issue being whether that complaint states any facts upon which the trial court could

grant relief. Id. In determining whether any facts will support a claim, the court looks

only at the complaint and the reasonable inferences to be drawn from it and may not rely

on any evidence that is not in the record. Id. If a complaint states a set of facts which,

even if true, would not support the relief requested, the case must be dismissed. Newman

v. Deiter, 702 N.E.2d 1093, 1097 (Ind. Ct. App. 1998).

                              II. Count I – Duty of the GHA

       In Count I of her amended complaint, Webster Green argues the GHA’s

negligence was the proximate cause of Mary’s death. Whether a legal relationship exists

from which a duty of care arises is a matter of law for the courts to decide. Webb v.

Jarvis, 575 N.E.2d 992, 995 (Ind. 1991). In order to recover on a negligence theory, a

lessee must prove a duty on the part of the lessor and show a breach of that duty. Houin

v. Burger, 590 N.E.2d 593, 597 (Ind. Ct. App. 1992).

       Webster Green’s complaint alleges that the GHA assumed a duty to perform

wellness checks, yet her complaint fails to establish that there was such a duty. The lease


                                            5
between Mary and the GHA clearly states that the GHA is required to give a lessee 48

hours’ notice before entering her apartment. Additionally, the lease states that the GHA

may enter a lessee’s apartment if it has reasonable cause to believe that an emergency

exists, but this certainly does not amount to a duty to perform wellness checks.

Appellant’s App. p. 66.

      Additionally, we believe that the trial court correctly determined that Blood and

Starks were not agents of the GHA. The facts as asserted in Webster Green’s complaint

do not establish that Blood or Starks were employees of the GHA. Rather, they establish

that Blood and Starks were employees of Woodlawn. Appellant’s App. p. 20. As such,

their actions do not impute liability to the GHA. Accordingly, the trial court correctly

dismissed Count I.

                      III. Count III – Relation Back of Amendment

      Webster Green contends that the trial court erred when it determined that the

statute of limitations had run and dismissed Count III of her complaint against Blood and

Starks. Webster Green added Blood and Starks as defendants after the statute of

limitations for a wrongful death action had expired. Under Indiana Code section 34-23-

1-1, the personal representative of a decedent must bring a wrongful death action within

two years. Webster Green attempts to utilize Indiana Trial Rule 15(C), relation back of

amendments, to relate her claim against Blood and Starks back to the original proceeding.

      A party may employ Trial Rule 15(C) only if, within 120 days of the action’s

commencement, the party to be brought in 1) had received such notice of the institution

                                           6
of the action that he will not be prejudiced in maintaining his defense on the merits; and

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.

       Here, Webster Green knew that Blood and Starks were involved on January 14,

2010, when Mary was discovered in an unresponsive condition in her apartment. She had

all the information necessary to know that Woodlawn, Blood, and Starks were involved,

and yet did not name them in her original complaint. Rule 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 Dept. v.

Guzorek, 857 N.E.2d 363, 376 (Ind. 2006).             Under Rule 15(C), the plaintiff must

establish that the requirements are present for Trial Rule 15(C) to apply. Webster Green

has not done so. The trial court correctly determined that Webster Green did not fulfill

the requirements of Trial Rule 15(C) and that her claims against Blood and Starks are

barred by the statute of limitations. Therefore, we conclude that Count III was correctly

dismissed.

       The judgment of the trial court is affirmed.

NAJAM, J., and CRONE, J., concur.




                                             7
