                                                                            Feb 11 2015, 10:03 am




      ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
      Kevin W. Betz                                              Daniel D. Trachtman
      Sandra L. Blevins                                          Erica K. Drew
      Jamie A. Maddox                                            Wooden & McLaughlin LLP
      Betz+Blevins                                               Indianapolis, Indiana
      Indianapolis, Indiana




                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jeffrey M. Miller and Cynthia S.                           February 11, 2015
      Miller                                                     Court of Appeals Case No.
                                                                 49A05-1401-PL-45
      Appellants,
                                                                 Appeal from the Marion Superior
              v.                                                 Court
                                                                 Honorable Michael D. Keele, Judge
                                                                 Cause No. 49D07-1003-PL-014761
      Kristine C. Danz,
      Appellee




      Friedlander, Judge.

[1]   Jeffrey M. Miller and Cynthia S. Miller (the Millers) appeal the grant of

      summary judgment in favor of Kristine C. Danz on their complaint for

      damages resulting from defamation per se, defamation per quod, invasion of

      privacy – false light, tortious interference with a business relationship,

      intentional infliction of emotional distress, and loss of consortium. The Millers

      Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015                    Page 1 of 29
      present several issues for our review, which we consolidate and restate as: Did

      the trial court properly grant summary judgment in favor of Danz?

[2]   We affirm.


[3]   Jeffrey Miller was president and CEO of Junior Achievement of Central

      Indiana, Inc. (JACI) from September 1994 until his retirement on December 31,

      2008. Jennifer Burk succeeded Miller as President and CEO of JACI. After his

      retirement from JACI, Miller continued in the role of President of the

      Experiential Learning and Entrepreneurship Foundation (the Foundation), a

      separate organization that supports JACI, until February 2010.


[4]   In May 2008, during Miller’s tenure as president of JACI, a three-way

      collaborative project was announced between JACI, the Foundation, and Ivy

      Tech Community College for the Foundation to construct a $4-million culinary

      school on the JACI campus to be financed in part by a $2-million grant from

      the Central Indiana Community Foundation/Eugene Glick family (CICF). As

      a result of this collaboration, Ivy Tech would lease the culinary school from the

      Foundation once the school was fully constructed and furnished with the latest

      culinary equipment. Construction began in August 2009 but was suspended in

      January 2010 because CICF stopped paying for the invoices submitted by the

      Foundation even though there was sufficient money in the fund that had been

      allocated for the culinary project. Apparently, CICF had concerns about how

      the funds for the culinary project were being handled.




      Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015   Page 2 of 29
[5]   Kristine Danz is a partner at Ice Miller, LLP. In January/February 2010,

      Danz’s then-husband was a board chairman for JACI. According to Danz’s

      deposition testimony, sometime in January/February 2010, Mr. Danz was

      “upset and angry” and in a “venting manner” communicated to her that there

      had been or was going to be an audit of JACI and the culinary project because

      there was a belief that funds allocated thereto may not have been managed

      properly. Appellants’ Appendix at 551, 547-48, respectively. Danz also stated

      that Mr. Danz seemed surprised that Miller was being considered for a position

      with the City of Indianapolis because Mr. Danz “felt like [Miller’s]

      performance at Junior Achievement wasn’t very strong.” Id. at 550.


[6]   During January or February 2010, Danz inquired of Sarah Cotterill (Ms.

      Cotterill),1 an associate partner at Ice Miller and then-wife of Chris Cotterill, the

      Chief of Staff for the Mayor of Indianapolis, whether Miller was in fact being

      considered for a position with the Mayor’s office.2 Danz communicated to Ms.

      Cotterill the information she had received from Mr. Danz concerning an audit

      of the culinary project and Miller’s involvement therein. Danz told Ms.

      Cotterill that she did not know the outcome of the audit, but indicated that Ms.

      Cotterill may want to inform Mr. Cotterill that he may want to inquire further

      into the matter before hiring Miller to work in the Mayor’s office. In turn, Ms.

      Cotterill relayed the information she received from Danz to Mr. Cotterill.

      Danz admitted that the information she relayed to Ms. Cotterill was the kind of


      1
       Ms. Cotterill recalls that the conversation with Danz may have taken place in 2009.
      2
       Danz stated that her conversation with Ms. Cotterill occurred during a chance meeting in the hallway at Ice
      Miller.

      Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015                      Page 3 of 29
      information that “would cause one to pause in wanting to deal with a person.”

      Id. at 556.


[7]   Prior to Danz’s conversation with Ms. Cotterill, Miller at least had a job

      opportunity with the Mayor’s office. Beginning in August of 2009 and

      continuing through approximately March of 2010, Miller engaged in several

      discussions with Mr. Cotterill regarding the position of Senior Policy Advisor to

      the Mayor. Miller maintains that these discussions encompassed what Miller

      could bring to the position of Senior Policy Advisor, that the purpose of the

      position was to connect the business community to the Mayor’s office and to tie

      the not-for-profit community closer together, a start date (being the end of

      February 2010), and a salary range. In a follow-up conversation, Mr. Cotterill

      told Miller that an announcement regarding Miller’s position with the Mayor’s

      office would be made toward the end of February 2010.

[8]   Ultimately, however, Miller did not receive the position as Senior Policy

      Advisor with the Mayor’s office. On March 19, 2010, Miller recorded a

      telephone conversation he had with Mr. Cotterill in which Mr. Cotterill told

      Miller that a lawyer had contacted his wife and informed her that Miller or

      JACI “were going to be sued by the CICF for misappropriation of funds.” Id.

      at 477. During this conversation, Miller identified Danz as a possible source of

      the comments made to Ms. Cotterill.3 Mr. Cotterill continued, informing Miller

      3
          The relevant part of the recorded telephone conversation between Miller and Mr. Cotterill follows:
               Jeff Miller: So where did that come from?
               Chris Cotterill: Some lawyer contacted Sarah, and I think that that lawyer’s at Ice Miller. I
               didn’t really get into that with her.
               Jeff Miller: Okay. That helps me, because I can trace that actually.

      Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015                         Page 4 of 29
       that his name was also associated with a conversation regarding concerns about

       “how the money moved around” for the culinary project in which JACI was

       involved. Id. at 478. In light of this information, Mr. Cotterill told Miller that

       part of his “professional responsibility is to do a 10-foot-pole rule” between the

       Mayor’s Office and Miller. Id. at 481.


[9]    The Millers filed their complaint on March 31, 2010, asserting claims for

       defamation per se, defamation per quod, invasion of privacy – false light, tortious

       interference with a business relationship, intentional infliction of emotional

       distress, loss of consortium, and damages resulting from each. Initially, JACI,

       CICF, Jennifer Burk, and Brian Payne were named as defendants. The Millers

       thereafter filed a series of amended complaints by which multiple persons and

       entities were added as defendants. Eventually, on February 27, 2012, the

       Millers filed their Fourth Amended Complaint in which they named “John Doe

       #8, a partner, employee or agent of Ice Miller, LLP” (John Doe #8) as a

       defendant in the action and alleged that John Doe #8 told Ms. Cotterill, who in

       turn told Mr. Cotterill, that “CICF was planning to sue Mr. Miller for

       misappropriation of funds.” Id. at 236.


[10]   On February 28, 2013, the Millers filed a Fifth Amended Complaint in which

       they substituted Danz for John Doe #8, claiming that they first learned of



               Chris Cotterill: Yeah, I mean –
               Jeff Miller: There’s a . . . Harry Danz who works—who is on the executive committee at
               JA[CI]; his wife works at Ice Miller.
               Chris Cotterill: Okay. And I—
               Jeff Miller: So that would make sense.
       Id. at 344.

       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015                       Page 5 of 29
       Danz’s identity as John Doe #8 through the deposition of Ms. Cotterill taken

       on January 18, 2013. Specifically, the Millers claimed in the Fifth Amended

       Complaint that it was Danz who told Ms. Cotterill that “CICF was planning to

       sue Mr. Miller for misappropriation of funds.” Id. at 262. The Fifth Amended

       Complaint pleads multiple theories against Danz, including defamation,

       invasion of privacy – false light, tortious interference with business or

       contractual relationships, intentional infliction of emotional distress, and

       conspiracy or concerted action.

[11]   Danz filed a motion for summary judgment, a brief in support of her motion for

       summary judgment, and a designation of evidence on August 30, 2013. Danz’s

       primary argument4 in support of summary judgment in her favor was that the

       claims asserted by the Millers accrued no later than March 19, 2010,5 and thus,

       the Millers’ filing of the Fifth Amended Complaint against her nearly three

       years later was barred by the applicable two-year statute of limitation.6 The

       Millers filed their response to Danz’s motion for summary judgment on

       October 4, 2013. The Millers argued that pursuant to Ind. Trial Rule 15(C),

       Danz was properly substituted for John Doe #8, even though such substitution


       4
         Danz also asserted in her brief in support of summary judgment that the Millers’ claims failed on their
       merits.
       5
         This is the date Miller recorded the telephone conversation with Mr. Cotterill in which Mr. Cotterill
       explained to Miller that the reason he was not going to be brought on as a Senior Policy Advisor with the
       Mayor’s office was because of information concerning an audit and/or possible misappropriation of funds by
       Miller that had been related to him by Ms. Cotterill. Danz asserts that Miller knew he had been damaged at
       least as of this point in time.
       6
         It is undisputed that all of the Millers’ claims against Danz are subject to a two-year statute of limitation.
       See Ind. Code Ann. § 34-11-2-4 (West, Westlaw current with all 2014 Public Laws of the 2014 Second
       Regular Session and Second Regular Technical Session of the 118th General Assembly) (“[a]n action for . . .
       injury to person or character . . . must be commenced within two (2) years after the cause of action accrues”).

       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015                         Page 6 of 29
       occurred after the expiration of the applicable two-year statute of limitation,

       because Danz had constructive notice of the lawsuit before the statute of

       limitation expired. On October 22, 2013, Danz filed a reply brief in support of

       her motion for summary judgment in which she specifically asserted that the

       substitution of her as a defendant did not satisfy the requirements of T.R. 15(C).

       The trial court held a summary judgment hearing on November 21, 2013.7

       During this hearing, the Millers argued that Ind. Trial Rule 17(F), in

       conjunction with T.R. 15(C), permitted the insertion of Danz’s name for John

       Doe #8. After the submission of post-argument briefs, the trial court granted

       Danz’s motion for summary judgment and directed that final judgment be

       entered in an order dated January 10, 2014.8 The Millers timely filed a Notice

       of Appeal on January 29, 2014.

[12]   “When reviewing a trial court’s ruling on a motion for summary judgment, this

       court stands in the shoes of the trial court and applies the same standards in

       deciding whether to affirm or reverse the ruling.”                   In doing so, we must

       construe all factual inferences in the nonmoving party’s favor and resolve all

       doubts as to the existence of a genuine issue against the moving party. Chang v.

       Purdue Univ., 985 N.E.2d 35 (Ind. Ct. App. 2013), trans. denied. A trial court’s

       grant of summary judgment is clothed with a presumption of validity, and the

       appellant bears the burden of demonstrating that the grant of summary




       7
         At the hearing, the parties’ arguments were focused solely upon whether the Fifth Amended Complaint
       naming Danz was time-barred by the applicable statute of limitations.
       8
         The trial court did not set forth the basis for its entry of judgment in favor of Danz.

       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015                   Page 7 of 29
       judgment was erroneous. W.S.K. v. M.H.S.B., 922 N.E.2d 671 (Ind. Ct. App.

       2010).

[13]   On appeal, the Millers contend that Danz’s argument that the substitution of

       her for John Doe #8 was not timely is at odds with the plain language of T.R.

       17(F), which provides that “[w]hen the name or existence of a person is

       unknown, he may be named as an unknown party, and when his true name is

       discovered his name may be inserted by amendment at any time.” (emphasis

       supplied). Danz’s response is that the Millers have not established that the

       Fifth Amended Complaint inserting Danz for John Doe #8 meets the

       requirements of Ind. Trial Rule 15(C) and therefore relates back to the filing of

       the original complaint. Specifically, T.R. 15(C) provides:

                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.
       (emphasis supplied). The threshold question to be answered in this case thus

       concerns interpretation of the “at any time” language of T.R. 17(F) in a

       situation where the applicable statute of limitation expired prior to the request


       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015        Page 8 of 29
       to amend the complaint. In deciding this question, we must consider the

       interplay between T.R. 17(F) and T.R. 15(C).

[14]   In considering T.R. 17(F) and T.R. 15(C), we must also keep in mind that the

       general purpose of a statute of limitation is to encourage the prompt

       presentation of claims. Havens v. Ritchey, 582 N.E.2d 792 (Ind. 1991). Statutes

       of limitation find their justification in necessity and convenience rather than in

       logic. Id. They represent expedients, rather than principles. Id. They are

       practical and pragmatic devices to spare the courts from litigation of stale

       claims, and the citizen from being put to his defense after memories have faded,

       witnesses have died or disappeared, and evidence has been lost. Id.


[15]   We now turn to the question before us. We begin by looking at the history of

       T.R. 17(F). Under the predecessor to T.R. 17(F), section 397 of the Indiana

       Revised Statutes of 1881, a plaintiff, “ignorant of the name of a defendant,”

       could designate a defendant “by any name” in any pleading or proceeding, and

       “when his true name is discovered, the pleading or proceeding” could be

       “amended accordingly, either before or after service of the summons.” This

       provision was carried forward into the twentieth century and codified in section

       2-1070 of Burns Indiana Statutes Annotated (1967 Repl.). In 1970, section 2-

       1070 was repealed, and T.R. 17(F), using substantially different language than

       its predecessors, was enacted. Even though the notion underlying T.R. 17(F)

       has been in existence in some version for over a hundred years, questions

       remain as to its purpose and how it operates in situations where the relevant

       statute of limitation has run. See William F. Harvey, 2 Indiana Practice, § 17.11

       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015   Page 9 of 29
       (2000). Interestingly, we have found no reported Indiana cases that have

       specifically addressed the application of T.R. 17(F).

[16]   The Millers, however, direct us to Sinks v. Caughey, 890 N.E.2d 34 (Ind. Ct.

       App. 2008). Citing the Sinks case as support, the Millers graft the requirements

       of T.R. 15(C) into the application of T.R. 17(F). The Millers then make their

       case that the requirements of T.R. 15(C) were met because Danz had at least

       constructive notice within the appropriate time frame. The Millers therefore

       maintain that T.R. 17(F) permitted the substitution of Danz for John Doe #8

       regardless of expiration of the applicable statute of limitation.

[17]   The Millers misread the Sinks case. Although a John Doe complaint was filed

       in that case, the John Doe party was eventually dismissed from the action and

       the plaintiff sought an amendment to add a new party to the action after the

       expiration of the applicable statute of limitation.9 On appeal, the court


       9
         The facts of Sinks were that the plaintiff was involved in a car accident and was aware that there were two
       men at the scene, but did not know the identity of either man. Before filing her complaint, the plaintiff spoke
       with a claims adjuster with American Family, the insurance company, who identified the owners of the other
       vehicle and incorrectly identified the owner’s son as the driver of the other vehicle at the time of the accident.
       Four days prior to the expiration of the applicable statute of limitations, the plaintiff filed her complaint
       against the owners of the other vehicle, their son, and “John Doe.” Eventually, the trial court dismissed the
       owners of the other vehicle from the suit and granted the defendants’ motion to strike “John Doe” as a
       defendant. The remaining defendant filed a motion for summary judgment on grounds that he was not the
       driver of the other vehicle at the time of the accident, but that another individual, identified as Sinks, was.
       The plaintiff sought to amend the complaint nearly two and one-half years after expiration of the statute of
       limitations to name Sinks as a party defendant.

       The court concluded that the filing of the original complaint and notice given to American Family, which
       entity was aware from its own investigation that Sinks was the driver of the other vehicle, constituted
       constructive notice to Sinks. In focusing on fairness to the added defendant, the primary concern of T.R.
       15(C), this court noted that American Family insurance received notice within the statute of limitation when
       it received the summons against “John Doe.” This court further noted that American Family knew the
       driver of the other vehicle involved in the accident was Sinks, and not any of the defendants named by the
       plaintiff in her complaint relating to the accident. Ultimately, the court concluded that it was reasonable to
       conclude that American Family knew or should have known that but for a mistake, Sinks would have been
       named in the original action. The Court, finding that the requirements of T.R. 15(C) were met, concluded
       that the trial court properly permitted the plaintiff to file a second amended complaint.

       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015                          Page 10 of 29
       addressed whether the addition of a proper defendant after the applicable

       statute of limitation expired related back to the filing of the original complaint.

       The court’s analysis focused solely upon whether the requirements of T.R.

       15(C) were met.

[18]   We find that the case of Berns Constr. Co., Inc. v. Miller, 491 N.E.2d 565 (Ind. Ct.

       App. 1986), summarily aff’d in relevant part by 516 N.E.2d 1053 (Ind. 1987),

       provides some guidance as to application of T.R. 17(F). Although our Supreme

       Court granted transfer in Berns because of a disparity among Court of Appeals

       opinions concerning competing statutes of limitation and statutes of repose, the

       Berns opinion also addressed relation back of an amended complaint in light of

       T.R. 15(C), T.R. 17(F), and Ind. Trial Rule 21(A). In that case, the plaintiffs

       filed a complaint against certain defendants and named other unknown

       defendants pursuant to T.R. 17(F). The plaintiffs sought to amend their

       complaint to name Berns Construction as a defendant two years and seven

       months after his cause of action accrued, which was after the applicable statute

       of limitation for his claim had expired. In rejecting the plaintiffs’ claim that

       T.R. 17(F) permitted relation back upon a subsequent amendment of their John

       Doe complaint after the statute of limitation had expired, the court noted that,

       as a general rule, “if a new defendant is added by amendment, the amendment

       must occur prior to the running of the statute of limitation.”10 Berns Constr. Co.,


       10
           The court cited Wojcik v. Almase, 451 N.E.2d 336 (Ind. Ct. App. 1983) as direct support for such
       conclusion. In Wojcik, a products liability action, the court’s analysis was primarily concerned with when the
       cause of action accrued. There is no discussion of T.R. 17(F), and the court, citing T.R. 15(C) simply states,
       “it does not appear that Wojcik’s amended complaint adding Deseret as a party would relate back so as to
       avoid the statute of limitations.” Wojcik v. Almase, 451 N.E.2d at 342.

       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015                      Page 11 of 29
       Inc. v. Miller, 491 N.E.2d at 573. The court intimated that an amendment to

       insert a real party in interest for a previously named unknown party is an

       amendment to add a new defendant. In other words, an amendment in this

       regard constituted a new and independent claim as to the now-named party.11

       The Berns Court continued and identified a line of cases that permits the

       addition of an entirely new defendant after the statute of limitation has run if

       the requirements of T.R. 15(C) are met.

[19]   With these cases in mind, what is to be made of the language of T.R. 17(F) that

       an amendment to the pleadings to name a previously unknown defendant may

       be made “at any time”? Interpretation of the trial rules are guided by the rules

       of statutory construction. See Noble County v. Rogers, 745 N.E.2d 194 (Ind.

       2001). Thus, as with statutes, our objective when construing the meaning of a

       rule is to ascertain and give effect to the intent underlying the rule. See Turner v.

       Bd. of Aviation Comm’rs, 743 N.E.2d 1153 (Ind. Ct. App. 2001), trans. denied. We

       are also mindful that “the Rules of Trial Procedure are to be construed together

       and harmoniously if possible.” Rumfelt v. Himes, 438 N.E.2d 980, 983 (Ind.

       1982). Where a rule has not previously been construed, the express language of

       the rule controls the interpretation. Rumfelt v. Himes, 438 N.E.2d 980. If the

       language of a rule is clear and unambiguous, it is not subject to judicial

       interpretation. Spears v. Brennan, 745 N.E.2d 862 (Ind. Ct. App. 2001).




       11
          In this regard, we find that the insertion of a real party in interest for a previously named unknown defendant
       after expiration of the statute of limitation is akin to “changing a party” within the meaning of T.R. 15(C).


       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015                         Page 12 of 29
[20]   I believe the purpose of T.R. 17(F) is to allow a party to be named “[w]hen the

       name or existence of a person is unknown.” The Rule continues and provides

       that an amendment to name a previously unknown defendant may be made “at

       any time.” The current version of the Rule employs substantially different

       wording than its predecessors and I have found no other jurisdiction that has a

       rule drafted in such a way. This indicates to me that the words were carefully

       chosen. Moreover, the words chosen are clear and unequivocal; the plain

       meaning of the words used in T.R. 17(F) is that an amendment to name a

       previously unknown defendant may be made “at any time.” In light of the

       express language of the Rule, I see no need to engraft a due diligence

       requirement onto T.R. 17(F). If the view of my colleagues is what the drafters

       of T.R. 17(F) intended, T.R. 17(F) should be revised to provide for such a

       requirement.

[21]   Moreover, I do not find my interpretation of T.R. 17(F) to be at odds with

       general policies of fairness and finality underlying the trial rules. Indeed, I

       agree with the Court in Berns Constr. Co., Inc. v. Miller, that “[t]he filing of a John

       Doe complaint can never toll the statute [of limitations] as to a substituted real

       defendant.” 491 N.E.2d at 573 (citing 2 W. Harvey Indiana Practice Sec. 15.4

       at 20 (1986 Supp.)). To be sure, as I noted above, an amendment under T.R.

       17(F) constitutes a new and independent claim as to the now-named party.

       Therefore, it must also be shown that the requirements of T.R. 15(C) have been

       met. In this respect, I agree with Judge Vaidik that T.R. 15(C) “operates as a

       check on Rule 17(F).” It remains, however, that the amendment is not defeated


       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015   Page 13 of 29
       by application of T.R. 17(F) because that rule specifically provides that an

       amendment may be made “at any time.”

[22]   The purpose of the doctrine of relation back under current T.R. 15(C) is to

       strike the proper balance between the basic goal of the Trial Rules to promote

       decisions on the merits and the policies underlying statutes of limitation, the

       most significant of which are to provide fairness and finality to defendants.

       Porter Cnty. Sheriff Dep’t v. Guzorek, 857 N.E.2d 363 (Ind. 2006). Thus, while

       T.R. 17(F) liberally allows amendments to pleadings in cases where a

       previously unknown party was named, T.R.15(C) seeks to ensure that the now-

       named defendants “receive notice of claims within a reasonable time, and thus

       are not impaired in their defense by evidence that is lost or diminished in its

       clarity because of the undue passage of time.” See Olech v. Vill. of Willowbrook,

       138 F.Supp.2d 1036, 1041 (N.D. Ill. 2000); see also William F. Harvey, 2

       Indiana Practice: Rules of Procedure Annotated § 15.7, at 70 (3d ed. 2000). It is T.R.

       15(C) that serves to achieve the goals of finality and fairness to defendants.

[23]   This perhaps explains the analysis of the court in Berns Constr. Co., Inc. v. Miller,

       infra. As I noted above, implicit in that court’s analysis is that an amendment

       was permissible under the clear language of T.R. 17(F). When the defendants

       challenged the amendment by raising the expiration of the statute of limitations

       as an affirmative defense, T.R. 15(C) became the vehicle by which to consider

       whether the amendment was fair to the defendant. The Berns court’s analysis

       therefore focused on whether the requirements of T.R. 15(C) had been met.



       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015   Page 14 of 29
[24]   In summary, I find that T.R. 17(F) permits the insertion of the name of a real

       party in interest “at any time.” In cases where the statute of limitation has

       expired and the opposing party raises the expiration of the statute of limitations

       as an affirmative defense, T.R. 15(C) provides the framework for determining

       whether the complaint against the now-named party, as amended pursuant to

       T.R. 17(F), relates back. See Crossroads Serv. Ctr., Inc. v. Coley, 842 N.E.2d 822

       (Ind. Ct. App. 2005), trans. denied.


[25]   The party who seeks relation back under T.R. 15(C) bears the burden of proving

       that (1) the claim in the amended complaint arises out of the conduct,

       transaction, or occurrence set forth or attempted to be set forth in the original

       complaint;12 (2) within 120 days after the commencement of the action, the

       party to be brought into the action must have received notice of the institution

       of the action so that it will not be prejudiced in maintaining a defense on the

       merits; and (3) within 120 days after commencement of the action, the party

       knew or should have known that absent a mistake concerning the identity of the

       proper party, the action would have been brought against the party to be

       brought in by the amendment. Id.


[26]   Here, the Millers filed their original complaint on March 31, 2010. In their

       Fourth Amended Complaint, filed just short of two years after the original

       complaint (i.e., February 27, 2012), the Millers added John Doe #8 as a

       defendant to the action. One year later, and almost three years after the action


       12
         No argument is made that the Fifth Amended Complaint did not arise “out of the conduct, transaction, or
       occurrence set forth or attempted to be set forth in the original pleading.” See T.R. 15(C).

       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015                   Page 15 of 29
       accrued and the original complaint was filed, on February 28, 2013, the Millers

       filed their Fifth Amended Complaint to insert Danz for John Doe #8. The

       filing of the Fifth Amended Complaint was after expiration of the applicable

       two-year statute of limitations governing the underlying claims. T.R. 17(F)

       does not, as the Millers claim, operate to permit the filing of the Fifth Amended

       Complaint.

[27]   With regard to the requirements of T.R. 15(C), we begin by considering the

       mistake requirement. Typically, the “but for a mistake” clause of T.R. 15(C)(3)

       encompasses cases that involve misnomers and mistaken identity. Here, the

       Millers equate their inability to specifically identify Danz within the limitation

       period as a mistake falling with the ambit of T.R. 15(C). In response, Danz

       maintains that not knowing the identity of the defendant is not a “mistake” as is

       required under T.R. 15(C).

[28]   Under the current version of T.R. 15(C), courts have found the mistake

       requirement to be satisfied in instances involving both mistakes of fact and

       mistakes of law.13 3-15 Ind. Pleading & Practice with Forms § 15.14 (2005). In

       Crossroads Serv. Ctr., Inc. v. Coley, this court, looking to federal decisions applying

       Federal Rule 15(C), upon which T.R. 15(C) is based, noted that Federal Rule

       15(C)(3) “permits an amendment to relate back to the original complaint when

       an error has been made concerning the identity of the proper party and where



       13
          This is most clearly demonstrated by federal cases allowing relation back where plaintiffs pursuing § 1983
       claims had incorrectly named immune institutional entities rather than individual defendants. See, e.g., Donald
       v. Cook Cty. Sheriff’s Dep’t, 95 F.3d 548 (7th Cir. 1996); Woods v. IUPUI, 996 F.2d 880 (7th Cir. 1993).

       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015                       Page 16 of 29
       that party is chargeable with the knowledge of that mistake, but relation back is

       not permitted when there is a lack of knowledge of the proper party.” 842

       N.E.2d at 826 (citing Baskin v. City of Des Plaines, 138 F.3d 701, 704 (7th Cir.

       1998); Delgado-Brunet v. Clark, 93 F.3d 339, 344 (7th Cir. 1996)); see also Berns

       Const. Co., Inv. v. Miller, 491 N.E.2d 565 (noting that “[t]here is no relation back

       where there is a lack of knowledge of the proper party”) (citing Wood v.

       Worachek, 618 N.E.2d 1225 (7th Cir. 1980)).


[29]   Here, the Millers filed their Fourth Amended Complaint to name John Doe #8.

       The Millers acknowledge that they did not know of the identity of John Doe #8

       until after taking the deposition of Sarah Cotterill in January 2013, nearly three

       years after the original complaint was filed. The Millers did not make a mistake

       as to the identity of John Doe #8, they simply lacked knowledge as to the

       proper party. The Millers have not established the mistake requirement of T.R.

       15(C).14 It cannot therefore be said that their Fifth Amended Complaint relates

       back to the filing of the original complaint. Having been filed after expiration

       of the statute of limitation applicable to the underlying claims, the Fifth

       Amended Complaint was time-barred. The trial court did not err in granting

       Danz’s motion for summary judgment.

[30]   Judgment affirmed.




       14
          I acknowledge that the Millers provided us with additional, non-binding authority that would perhaps lend
       itself to reaching a different result in this case. My reading of Indiana cases to date, however, does not favor
       the analysis followed in those jurisdictions.

       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015                        Page 17 of 29
Vaidik, C.J., and May, J., concur in result.




Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015   Page 18 of 29
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Jeffrey M. Miller and Cynthia S.                           February 11, 2015
       Miller                                                     Court of Appeals Cause No.
                                                                  49A05-1401-PL-45
       Appellants,
                                                                  Appeal from the Marion Superior
               v.                                                 Court
                                                                  Honorable Michael D. Keele, Judge
                                                                  Cause No. 49D07-1003-PL-014761
       Kristine C. Danz,
       Appellee




       Vaidik, Chief Judge, concurring in result.

[31]   In this case, the lead opinion concludes that Jeffrey and Cynthia Miller’s fifth

       amended complaint—in which they sought to name Kristine Danz as John Doe

       #8—does not relate back to the filing of the Millers’ original complaint. I

       agree, but I reach that conclusion because the facts show that the Millers knew

       that Danz was John Doe #8 as early as March 2010—before they commenced

       this action and nearly three years before they sought the amendment at issue.

       See slip op. at 4-5. The lead opinion’s conclusion, however, is based on an

       interpretation of Indiana Trial Rules 15(C) and 17(F). This interpretation

       creates a serious problem for a plaintiff who—for any number of reasons—does

       not know a defendant’s identity when filing a complaint. Under Judge

       Friedlander’s reasoning, a plaintiff who diligently pursues such information




       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015              Page 19 of 29
       may have no legal recourse when he obtains it. Because I cannot endorse such

       a result, I respectfully concur in result.

[32]   As the lead opinion points out, this case turns on the interaction between Trial

       Rules 15(C) and 17(F). Rules pertaining to the amendments of pleadings

       should be read in conjunction with one another, and here, Rule 15(C) operates

       as a check on Rule 17(F).

[33]   Trial Rule 17(F) provides that “[w]hen the name or existence of a person is

       unknown, he may be named as an unknown party, and when his true name is

       discovered his name may be inserted by amendment at any time.” The lead

       opinion interprets Rule 17(F) to allow a plaintiff to change a complaint’s

       caption at any time—but does not permit the action to continue as to the newly

       named defendant. This interpretation renders Rule 17(F) meaningless and

       potentially denies plaintiffs their day in court. I propose an alternative

       interpretation.

[34]   I would read Rule 17(F) to allow the insertion of the name of a real party in

       interest at any time provided the plaintiff used due diligence to discover the

       defendant’s identity. Inserting a due-diligence requirement does not conflict

       with the phrase “at any time.” And under this interpretation, a plaintiff who

       diligently seeks a defendant’s identity beyond the statute of limitations may

       have legal recourse against that defendant—provided that the plaintiff can also

       satisfy the requirements of Rule 15(C). Other jurisdictions impose a similar

       due-diligence requirement in this context. See, e.g., Sparks v. Alpha Tau Omega


       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015   Page 20 of 29
       Fraternity, Inc., 255 P.3d 238, 243 (Nev. 2011); Price v. Clark, 21 So. 3d 509, 525

       (Miss. 2009); Ex parte Nationwide Ins. Co., 991 So. 2d 1287, 1291 (Ala. 2008);

       DeRienzo v. Harvard Indus., Inc., 357 F.3d 348, 353 (3d Cir. 2004) (applying New

       Jersey law); Regjovich v. First Western Invs., Inc., 997 P.2d 615, 621 (Idaho 2000);

       Ensey v. Culhane, 727 A.2d 687, 690 (R.I. 1999). Although what constitutes due

       diligence is typically a fact-sensitive inquiry, courts may consider whether the

       defendant concealed his identity or obstructed the plaintiff’s investigation,

       whether the plaintiff utilized discovery or judicial mechanisms in attempting to

       learn the defendant’s identity, and any unreasonable delay by the plaintiff in

       amending their pleadings once the defendant’s identity is discovered. See

       Sparks, 255 P.3d at 243 (citations omitted).


[35]   Interpreting Rule 17(F) to require due diligence would not lead to open-ended

       statutes of limitation in cases where a defendant’s identity is unknown,

       however, because a plaintiff must also satisfy the requirements of Trial Rule

       15(C).15 Rule 15(C) provides:

                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



       15
          I do not believe this Court’s analysis in Berns Construction Company v. Miller, 491 N.E.2d 565, 572 (Ind. Ct.
       App. 1986), reh’g denied, summarily aff’d, 516 N.E.2d 1053 (Ind. 1987), prohibits this interpretation. In Berns we
       held that “if a new defendant is added by amendment, the amendment must occur prior to the running of the statute
       of limitation” but noted that the addition of a new defendant after the statute of limitations has run is permitted if
       the requirements of Rule 15(C) are met. 491 N.E.2d at 573. To the extent the lead opinion relies on Berns for its
       conclusions with respect to Rule 15(C)’s mistake requirement, I disagree for the reasons explained below.

       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015                             Page 21 of 29
               commencement of the action, the party to be brought in my
               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.


[36]   The four requirements set forth in Rule 15(C)—the same conduct, transaction,

       or occurrence requirement; the 120-day notice, no-prejudice requirements; and

       the mistake requirement—protect defendants from stale claims in much the

       same way statutes of limitation do.


[37]   While I agree with Judge Friedlander that a plaintiff must satisfy Rule 15(C) in

       this situation, I believe that the lead opinion interprets Rule 15(C)’s mistake

       requirement in a manner that disproportionally favors defendants. See T.R.

       15(C)(2) (“An amendment changing the party against whom a claim is asserted

       relates back if . . . the party to be brought in by amendment . . . 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.”). Under the lead opinion’s

       reasoning, a plaintiff can never satisfy Rule 15(C)’s mistake requirement if they

       lack knowledge of a defendant’s identity.


[38]   Admittedly, there is precedent to support Judge Friedlander’s position. In

       Crossroads Service Center, Inc. v. Coley, 842 N.E.2d 822, 825-26 (Ind. Ct. App.

       2005), trans. denied, this Court held:



       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015      Page 22 of 29
        Because we find no Indiana cases applying the revised Trial Rule
        15(C) and because the Indiana Trial Rules are based on the federal
        rules, it is appropriate to look to federal decisions for guidance in
        determining the outcome of this case. Foor v. Town of Hebron, 742
        N.E.2d 545, 552 (Ind. Ct. App. 2001). The Seventh Circuit has stated
        that Federal Rule 15(c)(3) only permits an amendment to relate back
        to the original complaint when an error has been made concerning the
        identity of the proper party and where that party is chargeable with the
        knowledge of that mistake, but relation back is not permitted when
        there is a lack of knowledge of the proper party. Baskin v. City of Des
        Plaines, 138 F.3d 701, 704 (7th Cir. 1998); Delgado-Brunet v. Clark, 93
        F.3d 339, 344 (7th Cir. 1996).


(footnote omitted). But after Coley, the United States Supreme Court decided

Krupski v. Costa Crociere S. p. A., 560 U.S. 538 (2010). In Krupski, the Supreme

Court held that the focus should be the would-be defendant’s knowledge—not

the plaintiff’s. See 560 U.S. at 548 (“By focusing on Krupski’s knowledge, the

Court of Appeals chose the wrong starting point. The question under Rule

15(c)(1)(C)(ii) is not whether Krupski knew or should have known the identity

of Costa Crociere as the proper defendant, but whether Costa Crociere knew or

should have known that it would have been named as a defendant but for an

error.”). And since Krupski, some courts have recognized that lack of

knowledge may be considered a mistake. See Ferencz v. Medlock, 905 F. Supp. 2d

656, 668 (W.D. Pa. 2012) (“[T]he Third Circuit considers a plaintiff’s lack of

knowledge regarding a defendant’s identity to constitute a ‘mistake’ within the

meaning of Rule 15(c)(1)(C)(ii), and thus permits relation-back amendments of

complaints to substitute a real name for a John Doe.”); Archibald v. City of

Hartford, 274 F.R.D. 371, 377 (D. Conn. 2011) (“In Krupski . . . the Supreme


Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015    Page 23 of 29
       Court arguably confirmed that the reference to ‘mistake’ in Rule 15(c)(1)(C)

       does not necessarily bar relation back for a plaintiff who failed to properly name

       a defendant because he lacked knowledge of that defendant’s name.”); Abdell v.

       City of New York, 759 F. Supp. 2d 450, 457 (S.D.N.Y. 2010) (“After Krupski, it is

       clear that a mistake ‘concerning the proper party’s identity’ under Rule 15(c)

       includes lack of knowledge regarding the conduct or liability of that party.”). In

       light of Krupski, and provided that the other requirements of Rule 15(C) are

       satisfied, I cannot agree that an amendment should be disallowed merely

       because a plaintiff “lacked knowledge as to the proper party.” Slip op. at 16.

[39]   Our trial rules aim to strike a balance between promoting decisions on the

       merits and providing closure, finality, and fairness to defendants. I believe that

       both interests are served by reading a due-diligence requirement into Rule

       17(F), recognizing that Rule 15(C) operates as check on Rule 17(F), and

       acknowledging that lack of knowledge as to a defendant’s identity may

       constitute a mistake for purposes of Rule 15(C). I believe Judge Friedlander

       construes these rules too narrowly and to the detriment of plaintiffs, potentially

       denying them their day in court. On the other hand, I believe Judge May

       construes Rule 17(F) too broadly and to the detriment of defendants, potentially

       allowing stale claims to proceed long after statutes of limitation have run,

       memories have faded, and evidence has been lost. I respectfully concur in

       result, however, because the facts show that the Millers knew that Danz was

       John Doe #8 before they commenced this action and nearly three years before

       they filed their fifth amended complaint. For that reason, I agree that the


       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015   Page 24 of 29
Millers’ fifth amended complaint does not relate back to the filing of the

original complaint, and the trial court properly granted summary judgment for

Danz.




Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015   Page 25 of 29
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Jeffrey M. Miller and Cynthia S.                           February 11, 2015
       Miller                                                     Court of Appeals Case No.
                                                                  49A05-1401-PL-45
       Appellants,
                                                                  Appeal from the Marion Superior
               v.                                                 Court
                                                                  Honorable Michael D. Keele, Judge
                                                                  Cause No. 49D07-1003-PL-014761
       Kristine C. Danz,
       Appellee




       May, Judge, concurring in result.

[40]   Both the lead opinion and Chief Judge Vaidik’s concurrence proceed on the

       premise “we must consider the interplay between T.R. 17(F) and T.R. 15(C),” (Slip

       op. at 9), and “this case turns on the interaction between Trial Rules 15(C) and

       17(F). (Slip op. at 2) (Vaidik, C.J., concurring). As the relation back provision

       of T.R. 15(C) does not apply to the situation before us, there is no such

       “interplay” or “interaction.” The trial court’s judgment may be affirmed by the

       proper application of T.R. 17(F) alone, and I accordingly concur in the result.


[41]   T.R. 15(C) governs “amendment” of pleadings, but subsection (C), which

       addresses relation back, does not apply to the situation before us, i.e., adding

       the correct name of a “John Doe” defendant. That situation is explicitly

       governed by T.R. 17(F) alone.



       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015             Page 26 of 29
[42]   T.R. 15(C) first addresses the relation back requirement that 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,” but

       that is not the question before us. It then addresses amendments “changing the

       party against whom a claim is asserted.” That part of the rule provides there is

       relation back if

               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.
       Ind. R. Trial P. 15 (emphasis added).

[43]   The “relation back” provisions of T.R. 15(C) do not apply to a “John Doe”

       situation, because the T.R. 17(F) situation where the name or existence of a

       party is unknown is not the same as the T.R. 15(C) situation where there has

       been a mistake about the identity of the proper party. In other words, adding a

       party because there has been a mistake about who should be the proper

       defendant, is governed by T.R. 15(C). That is not the same situation as giving a

       name to a previously-unidentified party who is already a “John Doe” defendant.

       T.R. 17(F) applies when “the name or existence of a party is unknown,” and

       provides “his name may be inserted by amendment at any time.” Correcting a

       mistake is not the same as learning an unknown party’s name.




       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015       Page 27 of 29
[44]   T.R. 15(C) governs the relation back of an amendment due to a mistake

       concerning the identity of a party, but the failure to identify individual

       defendants when the plaintiff knows that such defendants must be named is not

       a “mistake.” See, e.g., Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013) (“the

       lack of knowledge of a John Doe defendant’s name does not constitute a

       ‘mistake of identity’”) (addressing Fed. R. Civ. P. 15); Barrow v. Wethersfield

       Police Dep’t, 66 F.3d 466, 470 (2d Cir. 1995), modified, 74 F.3d 1366 (2d Cir.

       1996) (Fed. R. Civ. P. 15(c) explicitly allows, under certain circumstances, the

       relation back of an amendment due to a ‘mistake’ concerning the identity of the

       parties, but the failure to identify individual defendants when the plaintiff

       knows that such defendants must be named cannot be characterized as a

       mistake); Cooper v. Rhea Cnty., Tenn., 302 F.R.D. 195, 200 (E.D. Tenn. 2014)

       (naming a defendant as “John Doe” in a complaint is not considered a

       “mistake” under Fed. R. Civ. P. 15(c)).

[45]   Because there was no “mistake,” T.R. 15(C) has no application to the case

       before us, and we need not and should not decide whether there is “relation

       back.” It is clear from the language of T.R. 17(F) that a complaint may be

       amended to name a “John Doe” party even when an amendment premised on

       “mistake” might not relate back. Instead, in the case before us we must

       determine the independent effect of the language in T.R. 17(F) that “when the

       name or existence of a person is unknown, he may be named as an unknown




       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015   Page 28 of 29
       party, and when his true name is discovered his name may be inserted by

       amendment at any time.”16 (Emphasis added.)


[46]   While I believe the relation back provisions in T.R. 15(C) have no application

       to the case before us because there was no “mistake,” I agree with the lead

       opinion and the concurrence that the summary judgment for Danz was not

       error, and I accordingly concur in the result.




       16
          While many jurisdictions permit “John Doe” pleadings and have adopted rules to govern them,
       the “at any time” language appears to be unique to the Indiana rules. See, e.g., Nev. R. Civ. P. 10:
       “A party whose name is not known may be designated by any name, and when the true name is
       discovered, the pleading may be amended accordingly.” And see Ala. R. Civ. P. 9:
             When a party is ignorant of the name of an opposing party and so alleges in the party’s
             pleading, the opposing party may be designated by any name, and when that party’s true name
             is discovered, the process and all pleadings and proceedings in the action may be amended by
             substituting the true name.
        I agree with the reasoning articulated in the concurring opinion that T.R. 17(F) allows the insertion
       of the name of a real party in interest at any time provided the plaintiff used due diligence to discover
       the defendant’s identity, and I agree Danz was entitled to summary judgment because the facts show
       the Millers knew Danz was John Doe #8 before they commenced this action and nearly three years
       before they filed their fifth amended complaint. But as explained above, I do not agree with the lead
       opinion and the concurrence that a plaintiff must independently satisfy T.R. 15(C) in this situation.
       Court of Appeals of Indiana | Opinion 49A05-1401-PL-45 | February 11, 2015                  Page 29 of 29
