                                                                       May 12 2015, 9:36 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
      James E. Ayers                                            Gregory F. Zoeller
      Wernle, Ristine & Ayers                                   Attorney General of Indiana
      Crawfordsville, Indiana
                                                                Frances Barrow
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Christa Allen,                                           May 12, 2015

      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               61A01-1412-PL-542
              v.                                               Appeal from the Parke Circuit Court

                                                               The Honorable Samuel A. Swaim,
      State of Indiana, Indiana                                Judge
      Department of Correction,
                                                               Case No. 61C01-1108-PL-322
      Appellees-Defendants




      Crone, Judge.


                                             Case Summary
[1]   Christa Allen appeals the trial court’s order granting a motion for judgment on

      the pleadings after she filed a complaint for personal injury damages against the

      State of Indiana and the Indiana Department of Correction (collectively “the

      DOC”). The sole restated issue presented for our review is whether the trial
      Court of Appeals of Indiana |Opinion 61A01-1412-PL-542| May 12, 2015                    Page 1 of 6
      court erred when it granted judgment on the pleadings in favor of the DOC.

      Finding no error, we affirm.


                                   Facts and Procedural History
[2]   The material facts alleged by Allen indicate that, in April 2007, she was a post-

      surgery transgender prisoner incarcerated in the Rockville Correctional Facility

      in Parke County. During her incarceration, the DOC denied Allen the

      continued use of her vaginal stent and refused to provide a substitute device,

      which caused atrophy, injury, and ruination of her previous surgery.


[3]   On June 30, 2008, Allen filed a complaint against the DOC in the Marion

      Superior Court seeking personal injury damages.1 The DOC filed a motion to

      dismiss the complaint on August 15, 2008, arguing that Allen did not timely file

      a notice of tort claim pursuant to the Indiana Tort Claims Act (“ITCA”). The

      trial court granted the motion and dismissed the case on August 25, 2008.

      Allen did not appeal that ruling.


[4]   Three years later, on August 25, 2011, Allen filed the instant complaint against

      the DOC in the Parke Circuit Court alleging the same conduct by the DOC and

      again seeking personal injury damages. Allen argued that the Marion Superior

      Court’s previous order dismissing her claim was erroneous and premised upon




      1
       We note that Allen also filed a medical malpractice claim against the prison physicians involved in her
      medical care. The trial court entered summary judgment in favor of the physicians. On appeal, another
      panel of this Court reversed that ruling. See Allen v. Hinchman, 20 N.E.3d 863 (Ind. Ct. App. 2014), trans.
      pending.

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      the application of an incorrect subsection of the ITCA. Because the two-year

      personal injury statute of limitations had long since expired, Allen asserted that

      this new complaint could proceed as a continuation of her previous claim

      pursuant to the Journey’s Account Statute (“the JAS”), Indiana Code Section

      34-11-8-1.


[5]   The DOC filed a motion for judgment on the pleadings pursuant to Indiana

      Trial Rule 12(C) asserting that Allen’s complaint for personal injury damages

      was time-barred and that the JAS was inapplicable to save the claim. The trial

      court granted the motion and entered judgment on the pleadings in favor of the

      DOC. This appeal ensued.


                                     Discussion and Decision
[6]   We review de novo a trial court’s ruling on a Trial Rule 12(C) motion. Veolia

      Water Indianapolis, LLC v. Nat’l Trust Ins. Co., 3 N.E.3d 1, 5 (Ind. 2014). We

      accept as true the material facts alleged in the complaint and base our ruling

      solely on the pleadings. Id. “A Rule 12(C) motion for judgment on the

      pleadings is to be granted only where it is clear from the face of the complaint

      that under no circumstances could relief be granted.” Id. (quoting Murray v.

      City of Lawrenceburg, 925 N.E.2d 728, 731 (Ind. 2010)).


[7]   It is undisputed that Allen’s current complaint against the DOC was filed well

      outside the two-year statute of limitations applicable to personal injury claims.

      See Ind. Code § 34-11-2-4 (providing that an action for “injury to person” must

      be commenced within two years after the cause of action accrues). Allen

      Court of Appeals of Indiana |Opinion 61A01-1412-PL-542| May 12, 2015      Page 3 of 6
      maintains that the JAS, Indiana Code Section 34-11-8-1, applies to preserve her

      original, timely-filed claim and save her current complaint from judgment on

      the pleadings. The JAS provides:

              (a) This section applies if a plaintiff commences an action and:
                       (1) the plaintiff fails in the action from any cause except
                       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 commenced under the
                       statute of limitations governing the original action;
              and be considered a continuation of the original action commenced by
              the plaintiff.
      Ind. Code § 34-11-8-1.


[8]   We have explained that the JAS, when applicable, “serves to resuscitate actions

      that have otherwise expired under the statute of limitations.” Irwin Mortg. Corp.

      v. Marion Cnty. Treasurer, 816 N.E.2d 439, 443 (Ind. Ct. App. 2004). The

      statute’s typical use is to save an action originally filed in the wrong court. Id.

      at 444. It has been interpreted to generally permit “a party to refile an action

      that has been dismissed on technical grounds.” Dempsey v. Belanger, 959 N.E.2d

      861, 865 (Ind. Ct. App. 2011), trans. denied (2012). The purpose of the JAS is to

      ensure that a diligent suitor retains the right to a hearing in court until receiving

      a judgment on the merits. Id. In other words, the JAS provides for

      Court of Appeals of Indiana |Opinion 61A01-1412-PL-542| May 12, 2015                Page 4 of 6
       continuation of the original action when a plaintiff fails to obtain a decision on

       the merits for some reason other than his own neglect and the statute of

       limitations expires while his suit is pending. Al-Challah v. Barger Packaging, 820

       N.E.2d 670, 674 (Ind. Ct. App. 2005).


[9]    “Thus, under some circumstances the JAS permits a filing after the applicable

       limitation period to be deemed a ‘continuation’ of an earlier claim.” Eads v.

       Cmty. Hosp., 932 N.E.2d 1239, 1243 (Ind. 2010). “The JAS is not an exception

       to the statute of limitations; it merely allows the continuation of a previous suit

       filed within the statute of limitations.” Hayes v. Westminster Village North, Inc.,

       953 N.E.2d 114, 118 (Ind. Ct. App. 2011) (citing Vesolowski v. Repay, 520

       N.E.2d 433, 435 (Ind. 1988)), trans. denied (2012). It is well settled that in order

       for the saving power of the JAS to apply, the decision ending the previous suit

       must not have been a decision on the merits. Vesolowski, 520 N.E.2d at 435.


[10]   Here, the trial court dismissed Allen’s original complaint on grounds that she

       failed to give proper tort claim notice to the DOC pursuant to the ITCA. This

       Court has held that dismissal of a complaint for failure to comply with the

       notice provisions of the ITCA constitutes an adjudication on the merits. Creech

       v. Town of Walkerton, 472 N.E.2d 226, 228-29 (Ind. Ct. App. 1984); accord

       Rodgers v. Martinsville Sch. Corp., 521 N.E.2d 1322, 1326 (Ind. Ct. App. 1988),

       trans. denied. Accordingly, even assuming that the trial court’s dismissal of

       Allen’s original claim was erroneous as she now alleges, such dismissal was still

       a decision on the merits. Therefore, the JAS is not available to save Allen’s

       current claim.

       Court of Appeals of Indiana |Opinion 61A01-1412-PL-542| May 12, 2015         Page 5 of 6
[11]   In sum, the JAS is inapplicable, and it is clear from the face of Allen’s

       complaint that her claim is time-barred and that under no circumstances could

       relief be granted. The trial court properly dismissed the action pursuant to

       Indiana Trial Rule 12(C). Consequently, we affirm.


[12]   Affirmed.


       Brown, J., and Pyle, J., concur.




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