                                                                          FILED
                                                                     Oct 13 2017, 10:16 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
Mark K. Phillips                                          Michael E. DiRienzo
Boonville, Indiana                                        Jeffrey W. Ahlers
                                                          Kahn, Dees, Donovan & Kahn, LLP
                                                          Evansville, Indiana



                                             IN THE
      COURT OF APPEALS OF INDIANA

Charles Brown,                                            October 13, 2017
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          82A04-1705-CT-1087
        v.                                                Appeal from the Vanderburgh
                                                          Superior Court
Vanderburgh County Sheriff’s                              The Honorable S. Brent Almon,
Department and Vanderburgh                                Special Judge
County, Indiana,                                          Trial Court Cause No.
Appellees-Defendants                                      82D07-1601-CT-132




Crone, Judge.




Court of Appeals of Indiana | Opinion 82A04-1705-CT-1087 | October 13, 2017                   Page 1 of 8
                                              Case Summary
[1]   Charles Brown appeals the trial court’s dismissal of his amended complaint

      against Vanderburgh County Sheriff’s Department (“VCSD”) and Vanderburgh

      County, Indiana (“the County”). Brown contends that the trial court erred.

      Finding no error, we affirm.


                                  Facts and Procedural History
[2]   Brown was involved in a motorcycle accident on July 24, 2014. Due to injuries

      he suffered in the accident, he was taken by ambulance to Deaconess Hospital

      in Evansville. Upon his release from the hospital the following day, Brown was

      arrested by Evansville City Police Department officers for operating a vehicle

      while intoxicated, and he was transported to the Vanderburgh County

      Detention Center. Brown was released from the detention center on July 30,

      2014.


[3]   On January 20, 2015, Brown mailed his tort claim notice to VCSD,

      Vanderburgh County Sheriff Dave Wedding, Vanderburgh County

      Commissioners, the Indiana Political Subdivision Risk Management

      Commission, and the Indiana Attorney General, alleging a claim that he

      suffered injuries and damages while in the detention center as a result of

      VCSD’s “unprofessionalism, misconduct, failure to provide medical care, and

      abuse of power.” Appellant’s App. at 15. A little less than a year later, on

      January 11, 2016, Brown filed a complaint for damages naming the City of

      Evansville (“the City”) and Un-Named Police Officers as the sole defendants.


      Court of Appeals of Indiana | Opinion 82A04-1705-CT-1087 | October 13, 2017   Page 2 of 8
[4]   On July 26, 2016, the City filed a motion for summary judgment stating that the

      City had no control or jurisdiction over the Vanderburgh County Detention

      Center. On August 8, 2016, Brown filed a motion to amend his complaint

      stating that he had named “the wrong parties” in the initial complaint and that

      he wished to name VCSD and the County as defendants. Id. at 45. The trial

      court granted his motion to amend on September 8, 2016.


[5]   On October 27, 2016, VCSD and the County filed a motion to dismiss arguing

      that Brown’s amended complaint was filed after the expiration of the two-year

      statute of limitations. Following a hearing, the trial court entered a detailed

      order granting the motion to dismiss. This appeal ensued.


                                      Discussion and Decision
[6]   A motion to dismiss for failure to state a claim upon which relief can be granted

      tests the legal sufficiency of a claim, not the supporting facts. Veolia Water

      Indpls., LLC v. Nat’l Trust Ins. Co., 3 N.E.3d 1, 4 (Ind. 2014). An appellate court

      engages in a de novo review of the trial court’s grant or denial of a motion

      based on Indiana Trial Rule 12(B)(6). Id. We stand in the shoes of the trial

      court and must determine if the trial court erred in its application of the law.

      Chenore v. Plantz, 56 N.E.3d 123, 126 (Ind. Ct. App. 2016).


[7]   A motion to dismiss for failure to state a claim on which relief may be granted

      is an appropriate means of raising the statute of limitations. Id. When the

      complaint shows on its face that the statute of limitations has run, the defendant

      may file a Trial Rule 12(B)(6) motion. Id. The trial court’s grant of a motion to

      Court of Appeals of Indiana | Opinion 82A04-1705-CT-1087 | October 13, 2017   Page 3 of 8
      dismiss is proper if it is apparent that the facts alleged in the complaint are

      incapable of supporting relief under any set of circumstances. Id.


[8]   It is undisputed that Brown’s claims against VCSD and the County are subject

      to a two-year statute of limitations. See Ind. Code § 34-11-2-4(a). The

      undisputed facts similarly show that Brown’s cause of action accrued, at the

      latest, on July 30, 2014, the date Brown was released from the detention center.

      Therefore, the statute of limitations ran on July 30, 2016. Brown’s amended

      complaint naming VCSD and the County as defendants was not filed until

      August 8, 2016.1


[9]   “[T]he onus of bringing suit against the proper party within the statute of

      limitation is upon the claimant.” Rieth-Riley Constr. Co. v. Gibson, 923 N.E.2d

      472, 478 (Ind. Ct. App. 2010). Brown concedes that his amended complaint

      naming VCSD and the County as defendants was filed outside the statute of

      limitations, but he maintains that his amended complaint should relate back to

      the date of his original complaint pursuant to Indiana Trial Rule 15(C). Under

      Trial Rule 15(C), a plaintiff may add an entirely new defendant after the statute

      of limitations has run only after demonstrating that the conditions of the rule




      1
        There is no dispute that the amended complaint was filed outside the statute of limitations. Thus, although
      it makes no difference for purposes of our decision, we note that despite the fact that the trial court did not
      grant the motion to amend until September 8, 2016, the trial court concluded that the amended complaint
      should have been treated as having been filed on the filing date of Brown’s motion to amend, which was
      August 8, 2016. We agree. See Magic Circle Corp. v. Schoolcraft, 4 N.E.3d 768, 771 (Ind. Ct. App. 2014), aff’d,
      Camoplast Crocker, LLC v. Schoolcraft, 12 N.E.3d 251 (Ind. 2014) (concluding that action deemed commenced
      for purposes of the statute of limitations on date motion to amend complaint was filed as opposed to date
      trial court granted motion).

      Court of Appeals of Indiana | Opinion 82A04-1705-CT-1087 | October 13, 2017                         Page 4 of 8
       governing relation back of amendments have been satisfied. Magic Circle Corp. v.

       Schoolcraft, 4 N.E.3d 768, 770 (Ind. Ct. App. 2014), aff’d, Camoplast Crocker, LLC

       v. Schoolcraft, 12 N.E.3d 251 (Ind. 2014). Specifically, where no more than 120

       days have elapsed since the filing of the original complaint and (1) where the

       claim arises out of the same conduct; (2) the substituted defendant has notice

       such that he is not prejudiced by the amendment; and (3) the substituted

       defendant knows or should know that but for the misidentification, the action

       should have been brought against him, then the amended complaint relates

       back to the date of the original complaint. Raisor v. Jimmie’s Raceway Pub, Inc.,

       946 N.E.2d 72, 76 (Ind. Ct. App. 2011) (citing Ind. Trial Rule 15(C)).2 “The

       party who seeks the benefit of the relation back doctrine bears the burden of

       proving that the conditions of Trial Rule 15(C) are met.” Id.


[10]   VCSD and the County do not dispute that the claims asserted by Brown in his

       amended complaint arose out of the conduct, transaction, or occurrence set

       forth or attempted to be set forth in the original pleading. However, VCSD and

       the County assert that Brown has failed to satisfy the additional conditions of


       2
           Trial Rule 15 governs the amendment of pleadings, and provides in relevant part:
                (C) Relation back of amendments. 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 one hundred and twenty (120) days of commencement of the
                action, 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
                (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.



       Court of Appeals of Indiana | Opinion 82A04-1705-CT-1087 | October 13, 2017                                Page 5 of 8
       the rule governing relation back of amendments. That is, Brown was required

       to show that, within 120 days after the original complaint was filed, VCSD and

       the County were on notice of the institution of the action against the City and

       that they knew or should have known that but for a mistake concerning the

       identity of the proper party, the action should have been brought against them.


[11]   We agree with VCSD and the County that Brown failed to make such a

       showing. Here, the 120-day period from the date of the original complaint

       extended to May 11, 2016. At that time, there is no evidence to suggest that

       VCSD and the County had any notice, actual or constructive, of Brown’s legal

       action filed against the City. Although Trial Rule 15(C) does not require

       service of process on the new defendant, “notice of the pending of the claim

       must be such that the added party received either actual or constructive notice

       of the legal action.” Porter Cty. Sheriff Dep’t v. Guzorek, 857 N.E.2d 363, 368 (Ind.

       2006). Contrary to Brown’s assertions, his tort claim notice sent to VCSD is

       not sufficient notice as required by Trial Rule 15(C)(1). Indeed, it is not

       sufficient that the party is on notice that an injury has occurred or that the

       plaintiff has retained counsel. Id. at 368-69. Thus, the tort claim notice sent to

       VCSD and the County by Brown did not satisfy Trial Rule 15(C) because it

       informed VCSD and the County of Brown’s potential claims but did not advise

       that a lawsuit had been filed. See id.


[12]   Moreover, there has been no showing of a basis to impute knowledge of the

       filing of Brown’s original complaint to VCSD and the County. “Notice of the

       lawsuit may be actual notice or constructive notice, which may be inferred

       Court of Appeals of Indiana | Opinion 82A04-1705-CT-1087 | October 13, 2017   Page 6 of 8
       based on either the identity of interest between the old and new parties or the

       fact that they share attorneys.” Id. at 369. “An identity of interest may permit

       notice to be imputed to the added party when the original and added party are

       so closely related in business or other activities that it is fair to presume that the

       added part[y] learned of the institution of the action shortly after it was

       commenced.” Id. (citation and quotation marks omitted). As found by the trial

       court, there is no basis to impute knowledge of the filing of Brown’s original

       complaint to VCSD and the County because there is no evidence that they

       shared the same attorney or law firm as the City, and although they

       “undoubtedly work closely in law enforcement … it would be pure speculation

       to assume that [VCSD] or the County learned of the lawsuit from the City.”

       Appellant’s App. at 12. The record is devoid of any evidence suggesting that

       VCSD and the County had notice of Brown’s lawsuit as required by Trial Rule

       15(C)(1).3


[13]   As Brown has failed to show that VCSD and the County had notice of his

       lawsuit prior to the expiration of the statute of limitations, we need not reach

       the question of whether VCSD and the County “knew or should have known

       that but for a mistake concerning the identity of the proper party, the action



       3
         We have determined that in a case where, before the statute of limitations expires, a substituted defendant
       gains knowledge of a lawsuit clearly intended to be filed against it, but erroneously filed against another
       defendant, the 120-day limitation to the relation-back doctrine cannot operate to shorten the time period in
       which a plaintiff would be afforded to file an amended complaint under Trial Rule 15(C). Raisor, 946 N.E.2d
       at 79. “In other words, assuming the requirements of Trial Rule 15(C) are otherwise met, the 120-day limit
       will be applied only to enlarge the applicable statute of limitations.” Id. Here, however, VCSD and the
       County had no notice of the lawsuit until the date Brown filed his amended complaint, which was after the
       statute of limitations had already run. Accordingly, the rationale of Raisor does not apply.

       Court of Appeals of Indiana | Opinion 82A04-1705-CT-1087 | October 13, 2017                       Page 7 of 8
       would have been brought against [them].” Miller v. Danz, 36 N.E.3d 455, 458

       (Ind. 2015); Ind. Trial Rule 15(C)(2).4 Brown’s amended complaint does not

       relate back to a date preceding the expiration of the statute of limitations.

       Accordingly, we affirm the trial court’s dismissal of Brown’s amended

       complaint.


[14]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       4
         In any event, Brown has presented no evidence that he was mistaken as to the identity of the proper party,
       i.e., the identity of VCSD and the County, as he named them in his tort claim notice which was filed well
       before his original complaint. See Graves v. Ind. Univ. Health, 32 N.E.3d 1196, 1215 (Ind. Ct. App. 2015).
       Moreover, we are unpersuaded by Brown’s assertions that the City is somehow to blame for his failure to
       timely amend his complaint to name VCSD and the County as defendants. See Appellant’s Br. at 10-11.

       Court of Appeals of Indiana | Opinion 82A04-1705-CT-1087 | October 13, 2017                       Page 8 of 8
