MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Oct 03 2019, 9:40 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
J. David Agnew                                           LISA LIVINGSTON:
New Albany, Indiana                                      Crystal G. Rowe
                                                         Alyssa C.B. Cochran
                                                         New Albany, Indiana
                                                         ATTORNEY FOR APPELLEE
                                                         VIRGINIA WILSON:
                                                         William H. Mullis
                                                         Mitchell, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Memorandum Decision 19A-CT-428 | October 3, 2019                  Page 1 of 12
      Ronald Lewis,                                               October 3, 2019
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  19A-CT-428
              v.                                                  Appeal from the Clark Circuit
                                                                  Court
      Lisa Livingston, Linda Brison, as                           The Honorable Andrew Adams,
      Personal Representative of the                              Judge
      Estate of Teresa Lewis, Virginia                            Trial Court Cause No.
      Wilson, Founders Insurance Co.,                             10C04-1506-CT-85
      Safe Auto Insurance Co.
      Appellees-Plaintiffs.



      Tavitas, Judge.


                                                 Case Summary

[1]   Ronald Lewis appeals the trial court’s denial of his motion to amend. We

      affirm.


                                                        Issue

[2]   The sole issue on appeal is whether the trial court erred in denying Lewis’

      motion to amend.


                                                        Facts

[3]   On November 4, 2014, a tragic incident occurred in Clark County. Teresa J.

      Lewis (“Teresa”) 1 was riding with her brother, Ronald Lewis, in Lewis’ vehicle.



      1
       The record reveals that Teresa also went by the name “Jeanette”; however, for consistency, we will refer to
      her as “Teresa.”

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-428 | October 3, 2019                   Page 2 of 12
      According to Lewis, at some point during the drive, a wheelbarrow fell out of

      the back of Lewis’ truck. After realizing the wheelbarrow had fallen out of the

      truck, Lewis pulled over to the side of the road, and Teresa exited the vehicle in

      order to retrieve the wheelbarrow. While doing so, Teresa was tragically struck

      by at least one vehicle, which was driven by Lisa Livingston. Teresa’s injuries

      were fatal.


[4]   On June 17, 2015, Linda Brison, Teresa’s mother 2 and personal representative

      of Teresa’s estate (the “Estate”), filed suit against Livingston, Virginia Wilson, 3

      and Safe Auto Insurance Company (“Safe Auto”). The complaint sought

      damages suffered as a result of the incident. 4 On July 7, 2015, Livingston

      answered the Estate’s complaint and filed a “counterclaim” 5 against Lewis,

      who was not named in the lawsuit until that point, for damages Livingston

      sustained to her vehicle and the emotional distress she suffered as a result of the

      events that evening. Appellant’s App. Vol. II p. 41. The claim against Lewis

      stemmed from his alleged actions and alleged inactions regarding Teresa’s exit




      2
          Although we know Lewis and Teresa were brother and sister, we are unsure if Brison is also Lewis’ mother.
      3
          Wilson drove another vehicle related to the incident.
      4
       As Livingston and Wilson note, it appears to be a wrongful death action. The complaint notes that Brison
      “was appointed personal representative of Lewis’ estate for the sole purpose of bringing this wrongful death
      action.” Appellant’s App. Vol. II p. 34.
      5
       Livingston’s claim against Lewis would be better characterized as a third-party claim against Lewis, as
      Lewis was not a Plaintiff.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-428 | October 3, 2019                   Page 3 of 12
      from Lewis’ vehicle on or beside the roadway. A summons was not issued to

      Lewis.


[5]   On July 9, 2015, the Estate filed a document titled “Reply To Counterclaim

      Against Ronald Lewis” (the “Reply”) as well as a “Motion to Dismiss

      Counterclaim Against Ronald Lewis” (the “Motion to Dismiss”). Id. at 44, 46.

      The Reply stated the counterclaim should be dismissed because “Ronald Lewis

      is not a party to the case and no Counterclaim may be filed against him

      pursuant to Rules 7, 13, and 14 of the Indiana Rules of Trial Procedure.” Id. at

      45. Lewis himself did not answer Livingston’s claims against him.


[6]   On September 11, 2015, an attorney filed his appearance for both the Estate and

      Ronald Lewis “as counterclaim Defendants, only.” Id. at 28. At the time of

      this appearance, the Estate’s Motion to Dismiss was still pending. After many

      motions, pretrial conferences, and status hearings, on April 13, 2017, the trial

      court noted an “administrative event” on the chronological case summary

      (“CCS”) stating: “Comes now the Court and finds Plaintiff’s Motion to Dismiss

      Counterclaim Again Ronald Lewis should be and is hereby Dismissed.” 6 Id. at

      16-17. The trial court, however, did not issue a written order.


[7]   Again, after more motions, on November 2, 2017, a new attorney filed his

      appearance for “Third-Party Defendant” Lewis. Id. at 22. The same day,




      6
       We interpret this entry as an order granting the motion to dismiss, thereby dismissing the claim against
      Lewis.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-428 | October 3, 2019                   Page 4 of 12
       Lewis filed a motion for leave to file an “Amended Answer, Cross-Claim, and

       Counterclaim,” along with his proffered amended answer, cross-claim, and

       counterclaim. Id. The basis of Lewis’ cross-claim and counterclaim was for

       “compensatory damages” as a result of Lewis’ allegation that he witnessed

       Teresa deceased in the roadway and that he subsequently saw another vehicle

       run over her. Id. at 86.


[8]    Wilson filed an “Objection to Motion for Leave as filed by Ronald Lewis with

       Reply to Counterclaim and Motion to Dismiss Counterclaim,” on November 6,

       2017. Id. at 23. On November 10, 2017, Livingston filed a “Motion in

       Opposition to Motion for Leave to File Amended Answer,” and Lewis

       responded the same day. Id. On November 15, 2017, the trial court denied

       Lewis’ motion.


[9]    Based on Lewis’ contention that the trial court’s November 15, 2017 order was

       not a final appealable order, Lewis waited until all other parties reached a

       settlement on all claims in January 2019 before initiating this appeal.

       Livingston and Wilson filed motions to dismiss this appeal in May 2019

       arguing that Lewis did not have standing to initiate an appeal. The motions

       panel of this Court thereafter denied Livingston’s and Wilson’s motion to

       dismiss Lewis’ appeal. Lewis now appeals the denial of his motion to amend.


                                                     Analysis

[10]   Lewis argues that the trial court erred in dismissing his motion to amend. Both

       parties contend that our standard of review on the denial of a motion to amend


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-428 | October 3, 2019   Page 5 of 12
       is an abuse of discretion. “An abuse of discretion occurs if the trial court’s

       decision is clearly against the logic and effect of the facts and circumstances

       before the court, or if the court has misinterpreted the law.” Town of Georgetown

       v. Sewell, 786 N.E.2d 1132, 1137 (Ind. Ct. App. 2003). “We will reverse the

       judgment of the trial court only upon a showing that the trial court abused its

       discretion in denying the motion.” Mayer v. Davis, 991 N.E.2d 116, 118 (Ind.

       Ct. App. 2013).


[11]   The parties disagree about whether we can affirm the trial court’s decision on

       any basis supported in the record or whether our review is limited to the

       arguments Livingston and Wilson used to support their arguments at the trial

       court. Lewis argues that Wilson and Livingston relied exclusively on two

       arguments, namely, that (1) Ronald Lewis was not, and had never been, a party

       to the case; and (2) the statute of limitations had expired. Lewis contends that

       Livingston and Wilson cannot raise new legal theories in this appeal. On the

       other hand, Livingston and Wilson argue that we can affirm the trial court on

       any basis in the record.


[12]   We agree with Livingston and Wilson. Our court gives a “deferential

       standard” to trial courts, and, “‘on appellate review the trial court’s judgment

       will be affirmed if sustainable on any theory or basis found in the record.’” J.M.

       v. Review Bd. Of Indiana Dept. of Workforce Development, 975 N.E.2d 1283, 1289

       (Ind. 2012) (quoting Havert v. Caldwell, 452 N.E.2d 154, 157 (Ind. 1983)). “[I]t

       is well established that a decision of the trial court will be sustained if a valid

       ground exists to support it, whether or not the trial court considered those

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-428 | October 3, 2019   Page 6 of 12
       grounds.” J.M., 975 N.E.2d at 1289. “To state it another way, we ‘may affirm

       a trial court’s judgment on any theory supported by the evidence.’” Id. (citing

       Dowdell v. State, 720 N.E.2d 1146, 1152 (Ind. 1999)). Regardless, we believe

       that at least Wilson did argue more than Lewis states. Specifically, Wilson’s

       objection states: “Ronald Lewis has never even filed a pleading in this action,

       so it is more than a bit bewildering how he could amend a pleading. Not being

       a party to this action, Ronald Lewis cannot file a pleading, amended or

       otherwise.” Appellant’s App. Vol. II p. 92 (emphasis supplied).


[13]   At the outset, we note that numerous errors—by all those involved in this

       matter—have made the record difficult to understand. Specifically, the

       following four errors have caused significant confusion in this case: (1)

       Livingston adding a claim against Lewis in her answer, characterizing the claim

       against a non-party as a “counterclaim”; (2) the trial court’s decision to wait

       two years to rule on the Motion to Dismiss; (3) the Estate’s filing a Reply to

       allegations against Lewis as if the Estate was attempting to answer on behalf of

       Lewis; and (4) Lewis filing a motion for leave to amend a document that Lewis

       never filed in the first instance. While these errors have made the proceeding

       complicated, the end result is not changed. Turning now to the issue before us,

       for the reasons set out below, we find Lewis’ arguments unavailing.


                                               A. Trial Rule 15(A)

[14]   Based on the record before us, we cannot conclude that the Estate’s filings

       constitute an answer or responsive pleading to the counterclaim against Lewis


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-428 | October 3, 2019   Page 7 of 12
       for the irregularities discussed above. Accordingly, we cannot conclude that

       Lewis has the right to amend a pleading which he, himself, did not file.


[15]   First, our review of the record indicates that Lewis never filed anything in the

       lawsuit until November 2017 when the motion to amend before us was filed. 7

       There was, however, a Reply and Motion to Dismiss filed by the Estate.

       Specifically, the Reply is clear that it was filed on behalf of the Estate,

       beginning: “Comes now Linda Brison, as Personal Representative of the Estate

       of Theresa J. Lewis, and for her reply to the Counterclaim against Ronald

       Lewis, states as follows. . . .” Appellant’s App. Vol. II p. 44. The same is true

       of the Motion to Dismiss. The Motion to Dismiss begins: “Comes now the

       Plaintiff and Counterclaim Defendant, Linda Brison, in her capacity as

       Personal Representative of the Estate of Theresa J. Lewis, and states that the

       Counterclaim filed against Ronald Lewis should be dismissed . . .” Id. at 46. In

       other words, both documents are very clear that they were filed on behalf of the

       Estate. Even if, as Lewis contends, these documents were filed “on behalf” of

       Lewis, there is no evidence in the documents themselves to support Lewis’

       contention. We decline Lewis’ invitation to interpret these filings as done on




       7
        This is excluding attorney appearances on behalf of Lewis, which were filed in September 2015 and
       November 2017.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-428 | October 3, 2019                Page 8 of 12
       his behalf by the Plaintiff Estate, merely because of Lewis’ relationship as a

       potential beneficiary to the Estate. 8


[16]   Moreover, while Lewis had an attorney enter his appearances September 2015,

       Lewis himself did not file an answer or reply to the counterclaim against him.

       In fact, our review of the record reveals that the attorney, who appeared in

       September 2015 for Lewis and the Estate, did not file anything on behalf of

       Lewis specifically. Still, we recognize the line of cases that Lewis points to that

       indicates an attorney’s appearance on Lewis’ behalf confers jurisdiction over a

       party regardless of service of process. Lewis, however, glosses over the fact

       that, in April 2017, the trial court granted the Estate’s Motion to Dismiss and

       dismissed the claims against Lewis after Lewis’ then-counsel requested the trial

       court to rule on the Motion to Dismiss. Accordingly, at the time Lewis filed his

       motion to amend, there was no claim pending against Lewis. If Lewis was ever

       a party prior to April 2017, he was certainly not after the trial court dismissed

       him from the action.


[17]   Based on the foregoing, Lewis cannot rely on Indiana Trial Rule 15. Indiana

       Trial Rule 15(A) states: “A party may amend his pleading once as a matter of

       course at any time before a responsive pleading is served. . . . Otherwise a party

       may amend his pleading only by leave of court or by written consent of the




       8
         Although Lewis asserts he is a potential beneficiary to the Estate, there is no evidence in the record, other
       than the fact that Lewis is Teresa’s brother, to support this statement.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-428 | October 3, 2019                       Page 9 of 12
       adverse party. . . .” (emphasis added). Problematic for Lewis is that none of the

       filings done in response to Livingston’s counterclaim were Lewis’ pleadings.


[18]   Lewis attempts to liken his case to Kocher v. Getz, 844 N.E.2d 1026, 1031 (Ind.

       Ct. App. 2006), trans. denied, as support of his argument. The facts in Kocher,

       however, are distinguishable. In Kocher, although the insurance company there

       did not intervene in the case, our Court was “satisfied that [the company] has

       maintained a consistent presence throughout the[] proceedings, albeit in the

       background.” Id. In that case, however, it was admitted in the record that the

       insurance company “is the catalyst behind th[e] appeal,” and the trial court

       acknowledged in that case that “the ghost in the courtroom is [the insurance

       company] . . . they have called shots, [] we all know that. We lawyers do

       anyway.” Id. Moreover, the issue in Kocher was whether the insurance

       company could appeal—not whether the insurance company could amend

       another party’s filing. Although Lewis provides examples of his involvement in

       the lawsuit, including driving from Florida for aspects of this case, there is no

       evidence Lewis has been involved here, the same way the insurance company

       in Kocher was involved.


[19]   Accordingly, we cannot find it to be an abuse of discretion that the trial court

       declined to allow Lewis to amend the Estate’s response pursuant to Indiana

       Trial Rule 15(A).




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-428 | October 3, 2019   Page 10 of 12
                                                II. Trial Rule 14

[20]   We also analyze Indiana Trial Rule 14 to determine if Lewis could prevail a

       different way. Pursuant to Indiana Trial Rule 14(A):


               A defending party, as a third-party plaintiff, may cause a
               summons and complaint to be served upon a person not a party
               to the action who is or may be liable to him for all or part of the
               plaintiff’s claim against him. The third-party plaintiff must file
               the third-party complaint with his original answer or by leave of
               court thereafter with good cause shown. The person served with
               the summons and the third-party complaint, hereinafter called
               the third-party defendant, as provided in Rules 12 and 13 may
               make: . . . (1) his defenses, cross-claims and counterclaims to the
               third-party plaintiff’s claims. . . .


       Here, Lewis was not served with a summons or third-party complaint;

       therefore, Lewis did not, pursuant to the rules, become a third-party defendant.

       Lewis did not himself answer Livingston’s counterclaim; instead, the Estate

       filed a Reply and sought to dismiss the claims against Lewis.


[21]   After reviewing the trial rules, we are unable to find a situation in which Lewis

       prevails. We decline to address Lewis’ argument regarding whether or not his

       proffered amended answer, counterclaim, and cross-claim relate back to an

       initial answer, counterclaim, and cross-claim, because Lewis did not file any of

       these pleadings. In other words, there is nothing to which the amended filing

       could relate back, aside from the filing of another party. Based on the

       foregoing, Lewis failed to demonstrate the trial court abused its discretion.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-428 | October 3, 2019   Page 11 of 12
                                                  Conclusion

[22]   The trial court did not abuse its discretion in denying Lewis’ motion to amend.

       We affirm.


[23]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-428 | October 3, 2019   Page 12 of 12
