                                                               Apr 13 2015, 6:18 am




ATTORNEYS FOR APPELLANT                                     ATTORNEY FOR APPELLEE
W. Brent Threlkeld                                          John P. Schafer
Paul A. Jansen                                              Michael J. Stapleton
Threlkeld & Associates                                      Ball Eggleston PC
Indianapolis, Indiana                                       Lafayette, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Israel Munoz,                                              April 13, 2015

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           79A02-1409-CT-679
        v.                                                 Appeal from the Tippecanoe County
                                                           Superior Court
                                                           The Honorable Thomas H. Busch,
Jerome Woroszylo,                                          Judge
Appellee-Plaintiff                                         Cause No. 79D02-1406-CT-13




Bailey, Judge.




Court of Appeals of Indiana | Opinion 79A02-1409-CT-679 |April 13, 2015                Page 1 of 11
                                            Case Summary
[1]   After a car accident, Israel Munoz (“Munoz”), an Indiana resident, was sued by

      Jerome Woroszylo (“Woroszylo”), an Illinois resident, in a federal court in

      Illinois. Woroszylo filed his case in the federal court shortly before the

      limitations period for a suit expired. Concluding that it lacked personal

      jurisdiction over Munoz, the federal court in Illinois dismissed Woroszylo’s

      action.


[2]   Woroszylo subsequently filed suit in Tippecanoe County, relying upon the

      Journey’s Account Statute1 to preserve his action. Munoz moved to dismiss,

      contending that the statute did not operate to preserve Woroszylo’s claim. The

      trial court denied Munoz’s motion to dismiss. Munoz sought leave to pursue a

      discretionary interlocutory appeal of the trial court’s order; we granted Munoz’s

      motion.


[3]   We affirm.



                                Facts and Procedural History
[4]   Our statement of the facts in this case follows the standard of review for appeals

      from a motion to dismiss; we accordingly take as true uncontroverted facts as

      alleged in the complaint.




      1
          See Ind. Code § 34-11-8-1.


      Court of Appeals of Indiana | Opinion 79A02-1409-CT-679 |April 13, 2015      Page 2 of 11
[5]   On November 29, 2011, Munoz, a resident of Lafayette, and Woroszylo, a

      resident of Chicago, Illinois, were involved in a car accident in Clinton County,

      Indiana. Woroszylo was injured.


[6]   On November 11, 2013, Woroszylo filed a complaint for damages against

      Munoz in the U.S. District Court for the Northern District of Illinois. Munoz

      filed a motion to dismiss the case.


[7]   On April 4, 2014, the federal court granted Munoz’s motion, observing that

      Woroszylo conceded that the U.S. District Court for the Northern District of

      Illinois lacked personal jurisdiction over Munoz. Rather than order

      Woroszylo’s action transferred to the U.S. District Court for the Northern

      District of Indiana, which had personal jurisdiction over Munoz, the federal

      court instead dismissed Woroszylo’s action.


[8]   After this, on April 15, 2014, Woroszylo filed a complaint in Tippecanoe

      County, alleging that Munoz was negligent and that this negligence caused

      Woroszylo’s injuries on November 29, 2011.


[9]   On June 12, 2014, Munoz filed his motion to dismiss, in which he alleged that

      Woroszylo’s complaint was not timely filed within the two-year statute of

      limitation applicable to personal injury claims.2 In response, Woroszylo argued

      that his claim had been properly preserved and was not time barred under the




      2
       See Ind. Code § 34-11-2-4(a), providing that an action for injury to a person must be commenced within two
      years after the claim has accrued.

      Court of Appeals of Indiana | Opinion 79A02-1409-CT-679 |April 13, 2015                        Page 3 of 11
       Journey’s Account Statute. Munoz replied, arguing that the circumstances of

       the dismissal of Woroszylo’s action in the federal court amounted to negligence

       under the terms of the Journey’s Account Statute, as a result of which the

       statute did not operate to save Woroszylo’s claim from dismissal under the

       applicable statute of limitation.


[10]   On July 31, 2014, after a hearing featuring only argument of the parties, the

       trial court denied Munoz’s motion to dismiss.


[11]   On August 29, 2014, Munoz sought this Court’s discretionary interlocutory

       review of the order. On September 3, 2014, the trial court certified for

       interlocutory appeal its denial of the motion to dismiss. This Court accepted

       jurisdiction over this appeal on October 31, 2014.


[12]   This appeal ensued.



                                   Discussion and Decision
                                          Standard of Review
[13]   Munoz appeals the trial court’s denial of his motion to dismiss for failure to

       state a claim, as provided by Trial Rule 12(B)(6). A motion to dismiss for

       failure to state a claim tests the legal sufficiency of the claim, but not the

       supporting facts. Charter One Mortg. Corp. v. Condra, 865 N.E.2d 602, 604 (Ind.

       2007).




       Court of Appeals of Indiana | Opinion 79A02-1409-CT-679 |April 13, 2015      Page 4 of 11
[14]   However, the parties submitted additional materials for the trial court’s

       consideration. Where a party designates matters outside the pleadings, a

       motion to dismiss under Rule 12(B)(6) is treated as a motion for summary

       judgment under Rule 56. Ind. Trial Rule 12(B). We accordingly review this

       matter as an appeal from the denial of summary judgment, with Munoz as the

       movant.


[15]   Our standard of review upon appeal from a trial court’s ruling at summary

       judgment is well settled. Summary judgment is appropriate only where there is

       no genuine issue of material fact and the moving party is entitled to judgment as

       a matter of law. T.R. 56(C); Shi v. Yi, 921 N.E.2d 31, 39 (Ind. Ct. App. 2010).

       Our review of an order upon a motion for summary judgment is limited to the

       materials designated to the trial court. Shi, 921 N.E.2d at 39. We draw all facts

       and reasonable inferences therefrom in favor of the nonmovant, and we review

       summary judgment decisions carefully to ensure a party was not improperly

       denied its day in court. Id.


                               The Journey’s Account Statute
[16]   At the trial court, Munoz sought to dismiss Woroszylo’s complaint on the

       theory that the statute of limitation had run, and thus Woroszylo’ complaint

       was not timely filed. Woroszylo defended the action by claiming that his claim

       had been preserved under the Journey’s Account Statute (“the Statute”), and

       the trial court agreed, denying Munoz’s motion to dismiss.


[17]   The Statute provides:

       Court of Appeals of Indiana | Opinion 79A02-1409-CT-679 |April 13, 2015     Page 5 of 11
               (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 been commenced under
                        the statute of limitations governing the original action;
               and be considered a continuation of the original action commenced by
               the plaintiff.
       I.C. § 34-11-8-1.


[18]   The Statute is a legislative enactment that takes the place of common law

       remedies intended to permit lawsuits to continue after dismissals on technical

       grounds. See Al-Challah v. Barger Packaging, 820 N.E.2d 670, 674 (Ind. Ct. App.

       2005) (citing Vesolowski v. Repay, 520 N.E.2d 433, 434 (Ind. 1988)). The

       Statute’s purpose “is to provide for continuation 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.” Id. The Statute

       “generally permits 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. To successfully invoke the Statute, “the claimant must have

       commenced a timely action that failed for reasons other than ‘negligence in the

       prosecution.’” Id. at 866 (quoting Eads, 932 N.E.2d at 1243). The Statute “‘is

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

       Court of Appeals of Indiana | Opinion 79A02-1409-CT-679 |April 13, 2015             Page 6 of 11
       until he receives a judgment on the merits.’” McGill v. Ling, 801 N.E.2d 678,

       684 (Ind. Ct. App. 2004) (quoting Vesolowski, 520 N.E.2d at 434). Thus, the

       Statute “is to be construed liberally to protect such diligent suitors.” Id.


[19]   The Indiana Supreme Court has observed that “negligence in the prosecution”

       as set forth in the Statute “is broader than its origin in ‘failure to … prosecute as

       required by Indiana Trial Rule 41(E),’ and the term has been said to apply to

       ‘any failure of the action due to negligence in the prosecution.’” Eads, 932

       N.E.2d at 1244. Thus, negligence in the prosecution has been held to include

       failure to pay filing fees and naming improper parties. Id. (citing Parks v.

       Madison Cnty., 783 N.E.2d 711, 721 (Ind. Ct. App. 2002); Zambrana v. Anderson,

       549 N.E.2d 1078, 1081 (Ind. Ct. App. 1990)).


[20]   But Indiana courts have also held that the Journey’s Account Statute operates

       to save an action from the statute of limitations bar even when the initial suit in

       another jurisdiction failed for lack of personal jurisdiction. Basham v. Penick,

       849 N.E.2d 706, 713 (Ind. Ct. App. 2006) (citing Ullom v. Midland Indus., Inc.,

       663 F. Supp. 491 (S.D. Ind. 1987)). Thus, in Basham, another panel of this

       Court concluded that Indiana’s limitations period applied to a motorist’s suit

       that was initially filed, incorrectly, in Kentucky. The Basham Court went on to

       conclude that even though the Kentucky court lacked personal jurisdiction over

       the defendant, Basham could pursue her claim in Indiana’s courts under the

       Journey’s Account Statute where the Kentucky court decided “there is no clear

       cut tip of the scales in favor of either side.” Id. at 713 (citations and quotations

       omitted).

       Court of Appeals of Indiana | Opinion 79A02-1409-CT-679 |April 13, 2015    Page 7 of 11
[21]   In response to Woroszylo’s contention that the Statute preserved his claim

       beyond the two-year term of the statute of limitation for negligence actions,

       Munoz argued that Woroszylo’s initiation of an action in the U.S. District

       Court for the Northern District of Illinois was “negligence in the prosecution of

       the action.” I.C. § 34-11-8-1(a)(1). Munoz also argued that Woroszylo’s filing

       in Tippecanoe County failed to meet a good faith requirement held by Indiana

       courts to apply implicitly to cases under the Statute. See Eads v. Community

       Hosp., 932 N.E.2d 1239, 1244 (Ind. 2010).


[22]   While Woroszylo’s pursuit of his claim in the U.S. District Court for the

       Northern District of Illinois was plainly a poor decision, we cannot agree with

       Munoz that it amounts to negligence in the prosecution of the action under the

       Statute. Woroszylo filed suit in the federal court before the expiration of the

       Indiana statute of limitations for a personal injury claim. Nor was Woroszylo

       dilatory in filing suit in Indiana after his claim was dismissed from federal

       court: Woroszylo’s original suit was dismissed on April 4, 2014, and he filed

       his claim in Indiana less than two weeks later, on April 15, 2014. Indeed, there

       is no record before us that Woroszylo made any efforts to appeal the federal

       court’s order. At no point did any of this fail to satisfy other statutory bars to

       Woroszylo’s suit, and Munoz’s defense of the suit in the federal court

       demonstrates that he had notice of the claim. See Eads, 932 N.E.2d at 1244

       (observing that failure to pay filing fees and failure to name necessary parties

       have been held as negligent pursuit of litigation under the Statute).




       Court of Appeals of Indiana | Opinion 79A02-1409-CT-679 |April 13, 2015    Page 8 of 11
[23]   Munoz contends that, even if Woroszylo’s pursuit of the instant action was not

       negligent, nevertheless Woroszylo cannot meet the good-faith requirement

       imputed to the Statute by case law. Munoz is correct that Woroszylo’s decision

       to file suit in the Northern District of Illinois was a poor one. Indeed, the

       federal court made the following observations in its order:

               Absent any indication that [Munoz] would consent to proceed in this
               district prior to the filing of the Complaint, [Woroszylo] could have
               and should have “predicted” that the opposing party in this adversary
               proceeding would refuse to consent [to personal jurisdiction and venue
               in the Northern District of Illinois].
               ***
               Plaintiff’s elementary mistake and ill-advised strategy do not implicate
               the interest of justice, and thus the Court declines the Plaintiff’s
               invitation to transfer the case [to the Northern District of Indiana].
       App’x at 28.


[24]   The federal court clearly did not consider Woroszylo’s decision to file suit in

       the Northern District of Illinois to be well-advised; indeed, it considered the

       decision to be an “elementary mistake” that Woroszylo’s Illinois counsel

       should have avoided. App’x at 28. The federal court’s decision rejects

       Woroszylo’s proffered rationale of convenience in pursuit of the litigation,

       namely, that Woroszylo and his treating physicians all reside in Illinois and that

       would constitute the most convenient forum for the litigation.


[25]   That such an argument would not prevail against a motion to dismiss for lack of

       personal jurisdiction is, as the federal court observed, an elementary

       proposition. But hairsplitting distinctions between “in good faith” and “not in


       Court of Appeals of Indiana | Opinion 79A02-1409-CT-679 |April 13, 2015          Page 9 of 11
       bad faith” aside, there is no evidence that Woroszylo filed suit in federal court

       with intent to abuse judicial process or create undue delay. As the Indiana

       Supreme Court observed in interpreting a prior version of the Indiana statute

       that provides for shifting attorney’s fees as a result of bad faith in litigation:

               bad faith is not simply bad judgment or negligence. Rather, it implies
               the conscious doing of a wrong because of dishonest purpose or moral
               obliquity. It is different from the negative idea of negligence in that it
               contemplates a state of mind affirmatively operating with furtive
               design or ill will.
       Mitchell v. Mitchell, 695 N.E.2d 920, 924 (Ind. 1998) (citations and quotations

       omitted).


[26]   Woroszylo’s decision to file suit in the Northern District of Indiana was bad

       judgment. Bad judgment is not, however, bad faith. Id. Indeed, we note that

       while the federal court had discretionary authority to decline Woroszylo’s

       request that his case be transferred into the U.S. District Court for the Northern

       District of Indiana, see 28 U.S.C. § 1404(a), if Woroszylo had brought suit in an

       improper venue in an Indiana state court, transfer to an Indiana court with

       proper venue would have been mandatory under Indiana’s venue rules. See

       T.R. 75(B). This reflects Indiana courts’ general preference for deciding cases

       on their merits and for avoiding the construction of procedural obstacles to the

       presentation of such cases. Lindsey v. De Groot Dairy LLC, 867 N.E.2d 602, 606

       (Ind. Ct. App. 2007), trans. denied. Indeed, the very same policy is served by the

       Journey’s Account Statute.




       Court of Appeals of Indiana | Opinion 79A02-1409-CT-679 |April 13, 2015         Page 10 of 11
[27]   For all the foregoing reasons, we find no reversible error in the trial court’s

       denial of Munoz’s motion to dismiss.


[28]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 79A02-1409-CT-679 |April 13, 2015   Page 11 of 11
