Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
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.

APPELLANT PRO SE:                                   ATTORNEY FOR APPELLEES:

JASON TYE MYERS                                     DANIEL M. WITTE
Pendleton, Indiana                                  Travelers Staff Counsel Office
                                                    Indianapolis, Indiana

                                                                                     FILED
                                                                               Feb 06 2013, 9:28 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                       CLERK
                                                                                     of the supreme court,
                                                                                     court of appeals and
                                                                                            tax court




JASON TYE MYERS,                                    )
                                                    )
       Appellant-Plaintiff,                         )
                                                    )
               vs.                                  )       No. 79A04-1206-CT-323
                                                    )
STASON L. WIETE,                                    )
UNKNOWN PARTY, and                                  )
WEST LAFAYETTE POLICE DEPARTMENT,                   )
                                                    )
       Appellees-Defendants.                        )


                     APPEAL FROM THE TIPPECANOE CIRCUIT COURT
                            The Honorable Donald Daniel, Judge
                               Cause No. 79C01-1201-CT-3



                                         February 6, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Jason Tye Myers appeals the trial court’s summary judgment order in his action

for malicious prosecution against Stason L. Wiete, the West Lafayette Police Department

(“the Police Department”), and an unknown party, contending that the trial court erred by

failing to find that his action was timely filed pursuant to Indiana Code section 34-11-8-1,

the Journey’s Account Statute.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On February 17, 2004, Myers was arrested by Wiete, a West Lafayette Police

Officer, and charged with possession of and dealing in marijuana, maintaining a common

nuisance, and driving while suspended. The charges were dismissed by the State on

April 19, 2006.

       On April 15, 2008, Myers filed his claim against Officer Wiete, the Police

Department, and an unknown party pursuant to 42 United States Code section 1983 (“§

1983”) asserting a state claim for malicious prosecution. On April 28, 2008, the United

States District Court for the Northern District of Indiana dismissed the federal claim

brought under § 1983 with prejudice and Myers’s state claims without prejudice. Myers

filed a notice of appeal on June 24, 2008, and the United States Circuit Court of Appeals

for the Seventh Circuit dismissed the appeal on December 1, 2008. More than three

years later, on January 18, 2012, Myers filed his state court complaint. The trial court

granted the defendants’ motion for summary judgment on the basis that Myers’s state

court complaint was untimely, and this appeal ensued.


                                                2
                                DISCUSSION AND DEICISION

       The actions giving rise to Myers’s claim occurred in February 2004, and his state

court claim was filed in January 2012. There is no question that Myers’s malicious

prosecution claim is subject to a two-year statute of limitations1 and is time barred unless

saved by the Indiana Journey’s Account Statute.

       The Journey’s Account Statute is found at Indiana Code section 34-11-8-1 and

provides that:

       (a) This section applies if a plaintiff commences an action and the plaintiff
       fails in the action from any cause except:
               (1) negligence in the prosecution of the action;
               (2) the action abates or is defeated by the death of a party; or
               (3) a judgment is arrested or reversed on appeal.
       (b) If subsection (a) applies, a new action may be brought not later
       than the later of:
               (1) three (3) years after the date of the determination under
               subsection (a); or
               (2) the last date an action could have been commenced under the
               statute of limitations governing the original action; and be
               considered a continuation of the original action commenced by the
               plaintiff.

       The Journey’s Account Statute’s typical use is to save an action filed in the wrong

court by allowing the plaintiff enough time to re-file the same claim in the correct forum.

See Cox v. Am. Aggregates Corp., 684 N.E.2d 193, 195 (Ind. 1997) (statute enabled

action dismissed for lack of personal jurisdiction in one state to be re-filed in another

state despite intervening running of statute of limitations).       The Journey’s Account

Statute is designed to ensure that the diligent suitor retains the right to a hearing in court

until he receives a judgment on the merits. When applicable, the Statute serves to

       1
           See Ind. Code § 34-11-2-4.
                                                  3
resuscitate actions that have otherwise expired under a statute of limitations. Al-Challah

v. Barger Packaging, 820 N.E.2d 670, 672 (Ind. Ct. App. 2005).

       Here, the appellees contend the three-year time period provided by the Journey’s

Account Statute ran from the date of the dismissal of Myers’s federal court complaint by

the District Court. Myers argues that the time did not begin to run until January 20, 2009

and that his state court complaint in this action was filed on January 18, 2012, within the

three-year period provided by the Journey’s Account Statute. Myers bases his argument

on the fact that he appealed the dismissal of his complaint by the federal District Court to

the Circuit Court of Appeals and that, subsequent to its order of dismissal on December

1, 2008, he filed a “motion to recall the mandate and for reconsideration of the denial in

forma pauperis status” on January 8, 2009, and that the Circuit Court denied his motion

on January 20, 2012.

       By its terms, the Journey’s Account Statute provides a grace period of three years

for the re-filing following the determination that the plaintiff’s action fails for a reason

other than those enumerated in the statute. Ind. Code § 34–11–8–1. Whether Myers’s

action failed when it was first dismissed by the District Court on April 28, 2008 or when

the attempted appeal was dismissed by United States Circuit Court of Appeals for the

Seventh Circuit on December 1, 2008 is immaterial since more than three years lapsed

between each of these dates and the commencement of Myers’s state court action on

January 18, 2012. Accordingly, we reserve the question of the effect of an appeal on the

Indiana Journey’s Account Statue for another day.



                                                4
       More critically, although Myers claims that the grace period provided by the

Journey’s Account Statute did not begin to run until the Circuit Court of Appeals ruled

upon his motion to recall the mandate and for reconsideration of the denial in forma

pauperis status, he fails to make a cogent argument or cite to pertinent authority why the

filing of such repetitive motions should extend the time period provided in the Statute.

See Ind. Appellate Rule 46(A)(8). Accordingly, Myers’s argument fails.

       Myers has failed to show that his action for malicious prosecution was

commenced with the three-year grace period provided by the Indiana Journey’s Account

Statute, and we affirm the trial court’s dismissal of his complaint.

       Affirmed.

MATHIAS, J., and CRONE, J., concur.




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