                                                                           FILED
                                                                       Nov 06 2019, 8:38 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANT                             ATTORNEYS FOR APPELLEE
James R. Fisher                                     Kevin S, Smith
Debra H. Miller                                     Alexander P. Pinegar
Miller & Fisher, LLC                                Church, Church, Hittle & Antrim
Indianapolis, Indiana                               Noblesville, Indiana



                                            IN THE

    COURT OF APPEALS OF INDIANA

Benjamin S. Smith,                                        November 6, 2019
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          19A-CT-1244
        v.                                                Appeal from the Marion Superior
                                                          Court
Franklin Township Community                               The Hon. James A. Joven, Judge
School Corp.,                                             Trial Court Cause No.
                                                          49D13-1810-CT-42794
Appellee-Defendant.




Bradford, Judge.




Court of Appeals of Indiana | Opinion 19A-CT-1244 | November 6, 2019                           Page 1 of 9
                                           Case Summary
[1]   In January of 2016, Benjamin Smith’s vehicle collided with a school bus owned

      and operated by the Franklin Township School Corporation (“the School”) in

      Indianapolis, causing him injury. In March of 2016, pursuant to the Indiana

      Tort Claims Act (“ITCA”), Smith sent notice to the School of his intent to file a

      tort claim (“the ITCA Notice”). On July 1, 2018, the Claims Against Public

      Schools Act (“CAPSA”) became law, governing all civil actions or

      administrative proceedings brought against public schools and which includes

      its own notice provisions.

[2]   In October of 2018, Smith filed a negligence suit against the School, which

      moved to dismiss Smith’s complaint on the basis that he had failed to provide

      CAPSA notice prior to filing. On January 29, 2019, the trial court dismissed

      Smith’s complaint without prejudice. By this time, however, the relevant

      statute of limitations had run, preventing him from simply refiling. On March

      29, 2019, Smith moved for his complaint to be reinstated pursuant to Indiana

      Trial Rule 41(F). On May 9, 2019, the trial court denied Smith’s motion to

      reinstate. As restated, Smith contends that the trial court abused its discretion

      in denying his motion to reinstate because (1) CAPSA does not apply to his

      claim and (2) the ITCA Notice also satisfied the notice requirements of CAPSA

      in any event. Because we conclude that CAPSA does not apply to Smith’s

      claim against the School, we need not reach his second claim and reverse and

      remand with instructions.


                             Facts and Procedural History

      Court of Appeals of Indiana | Opinion 19A-CT-1244 | November 6, 2019      Page 2 of 9
[3]   On January 7, 2016, Smith was involved in a collision between his vehicle and

      a school bus owned and operated by the School, suffering injuries. Smith sent

      the School an ITCA Notice on March 15, 2016, via certified mail. On July 1,

      2018, CAPSA became law, governing all civil actions or administrative

      proceedings “brought against a public school under the laws of […] the United

      States [] or […] Indiana.” Ind. Code § 34-13-3.5-1; see generally Ind. Code ch.

      34-13-3.5. CAPSA requires, inter alia, that a potential plaintiff give notice of a

      civil lawsuit to a public school before it can be initiated, which notice must

      include a request for relief and an opportunity for the school to respond. On

      October 24, 2018, nine days prior to the running of the relevant statute of

      limitations, Smith filed a negligence complaint against the School, prior to

      which he did not provide the School with a separate CAPSA notice.

[4]   On December 26, 2018, the School moved to dismiss Smith’s complaint on the

      basis that he had failed to provide CAPSA notice prior to filing his complaint.

      On or about January 14, 2019, Smith sent a letter to the School demanding

      $500,000.00 to settle his claim and asking for a response within fifteen days.

      On January 29, 2019, the trial court dismissed Smith’s complaint without

      prejudice. By this time, however, the relevant statute of limitations had run.

[5]   On March 29, 2019, Smith moved for his complaint to be reinstated pursuant to

      Indiana Trial Rule 41(F). Smith alleged, inter alia, that “[p]ursuant to Trial

      Rule 41, good cause exist[ed] to reinstate this matter and for all other relief just

      and proper in the premises[.]” Appellant’s App. Vol. II p. 18. On April 15,

      2019, the School responded, alleging that Smith had failed to establish good



      Court of Appeals of Indiana | Opinion 19A-CT-1244 | November 6, 2019        Page 3 of 9
      cause to reinstate his complaint because he had not established compliance with

      CAPSA’s notice requirement. The same day, Smith filed a second motion to

      reinstate his complaint. On May 8, 2019, Smith filed a memorandum in

      support of his second motion to reinstate, arguing that (1) the notice

      requirements of ITCA are the only ones that apply to this case, (2) the ITCA

      Notice satisfied those requirements and (3) dismissal for failure to comply with

      the recently-enacted CAPSA’s notice requirements would be “harsh and […]

      against the interest of justice.” Appellant’s App. p. 44. Smith noted that

      CAPSA “did not even exist at the time notice was given, and only came to be

      mere months prior to the suit being filed.” Appellant’s App. p. 44. On May 9,

      2019, the trial court denied Smith’s motion to reinstate.


                                 Discussion and Decision
[6]   Smith is appealing from the trial court’s denial of his motion to reinstate his

      negligence suit against the School. Indiana Trial Rule 41(F) provides that “[f]or

      good cause shown and within a reasonable time the court may set aside a

      dismissal without prejudice.” We review a trial court’s ruling on a motion to

      reinstate an involuntary dismissal for an abuse of discretion. Cloyd v. Pasternak,

      791 N.E.2d 757, 758 (Ind. Ct. App. 2003). “Judicial discretion has been

      defined as a judge’s privilege to decide and act in accordance with what is fair

      and equitable within the confines of justice.” Id. at 759. “Our review of an

      exercise of judicial discretion must be made in light of and confined to the facts

      and circumstances of a particular case.” Id. We will uphold the trial court’s

      decision unless it “is clearly against the logic and effect of the facts and



      Court of Appeals of Indiana | Opinion 19A-CT-1244 | November 6, 2019           Page 4 of 9
      circumstances before it or if the court has misinterpreted the law.” Natare Corp.

      v. Cardinal Accts., Inc., 874 N.E.2d 1055, 1058 (Ind. Ct. App. 2007).

                                                    I. ITCA
[7]   The parties seem to agree that ITCA applies to Smith’s claim, with the School

      arguing only that Smith has failed to establish that the ITCA Notice satisfied

      the notice requirements of ITCA, pointing out that the ITCA Notice does not

      appear in the record on appeal. For his part, Smith points out that the School

      did not claim below that he failed to give it ITCA notice, and “[f]ailure to give

      notice is a defense that a political subdivision must assert in its answer to a

      plaintiff’s complaint.” Fowler v. Brewer, 773 N.E.2d 858, 862 (Ind. Ct. App.

      2002), trans. denied.1 Because the School has raised alleged deficiency of ITCA

      notice for the first time on appeal, the claim is waived for appellate

      consideration. See, e.g., Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004)

      (“[A] trial court cannot be found to have erred as to an issue or argument that it

      never had an opportunity to consider. Accordingly, as a general rule, a party

      may not present an argument or issue on appeal unless the party raised that

      argument or issue before the trial court. In such circumstances the argument is

      waived.”) (citations omitted). Under the circumstances, we consider the ITCA




      1
        The ITCA Notice’s absence from the record is almost certainly due to the School’s failure to challenge it
      below, as this obviated any need for Smith to produce it.




      Court of Appeals of Indiana | Opinion 19A-CT-1244 | November 6, 2019                               Page 5 of 9
      Notice’s compliance with the notice requirements of ITCA to be conclusively

      established.2

                                                  II. CAPSA
[8]   The next question, then, is whether CAPSA also applies to Smith’s claim, with

      the School claiming that it applies and Smith claiming that it does not. CAPSA

      governs all “civil action[s] or […] administrative proceeding[s] against a public

      school[.]” Ind. Code § 34-13-3.5-4. As for notice requirements, CAPSA

      provides that an individual may not initiate a civil or administrative action

      against a public school unless the individual first submits a written notice to the

      public school and its governing body that notifies them “of the alleged violation

      of law and indicates a proposed remedy.” Ind. Code § 34-13-3.5-4. The public

      school has fifteen days to consider and either “[r]emedy the alleged violation or

      violations [or m]ake a written offer to the individual or entity to resolve the

      dispute.” Ind. Code § 34-13-3.5-6. If a plaintiff does not comply with CAPSA’s

      pre-suit notice requirements, the lawsuit is subject to dismissal without

      prejudice. Ind. Code § 34-13-3.5-7.

[9]   Smith contends, inter alia, that applying CAPSA’s provisions to his lawsuit

      would be an impermissible retroactive application. As an initial matter, the

      School claims that Smith has failed to preserve his retroactivity argument. “As




      2
        The School has filed motions to strike sections of Smith’s Brief of Appellant and Reply Brief referring to the
      ITCA Notice, which, as mentioned, does not appear in the record. Because we have concluded that the
      ITCA Notice’s compliance has been conclusively established, however, we need not address these motions
      on their merits. We deny, as moot, both of the School’s motions to strike in an order to be issued
      contemporaneously with this opinion.




      Court of Appeals of Indiana | Opinion 19A-CT-1244 | November 6, 2019                                Page 6 of 9
       a general rule, a party may not present an argument or issue to an appellate

       court unless the party raised that argument or issue to the trial court.” GKC Ind.

       Theatres, Inc. v. Elk Retail Inv’rs, LLC., 764 N.E.2d 647, 651 (Ind. Ct. App. 2002).

       “The rule of waiver in part protects the integrity of the trial court; it cannot be

       found to have erred as to an issue or argument that it never had an opportunity

       to consider.” Id.

[10]   Under the circumstances, we conclude that Smith did more than enough to

       provide the trial court with an opportunity to rule on the question of

       retroactivity, thereby preserving it for appellate review. In Smith’s second

       motion to reinstate his complaint against the School, he argued, inter alia, that

       dismissal for failure to comply with CAPSA’s notice requirements would be

       “harsh and […] against the interest of justice[,]” noting that CAPSA “did not

       even exist at the time [ITCA] notice was given, and only came to be mere

       months prior to the suit being filed.” Appellant’s App. p. 44. Although Smith

       did not use the word “retroactive,” his argument is essentially that CAPSA

       should not apply to his claim against the School because it was not yet the law

       when the claim accrued. We would be elevating form over substance if we

       ignored the fact that this is a retroactivity argument in all but name, and

       therefore choose to address it on the merits. State ex rel. Att’y Gen. v. Lake Super.

       Ct., 820 N.E.2d 1240, 1252 (Ind. 2005) (“We are unwilling to fortify the armory

       of those who attack the law as famous for its ability to elevate form over

       substance.”).

[11]           Whether a statute or amendment is to be applied retroactively to
               pending cases or only prospectively depends upon the legislature’s


       Court of Appeals of Indiana | Opinion 19A-CT-1244 | November 6, 2019          Page 7 of 9
               intent. Absent an express indication otherwise, we presume that
               the legislature intends statutes and amendments to apply
               prospectively. Brane v. Roth, 590 N.E.2d 587, 590 (Ind. Ct. App.
               1992), reh’g denied, trans. denied; Turner v. Town of Speedway, 528
               N.E.2d 858, 863 (Ind. Ct. App. 1988). Strong and compelling
               reasons must exist for retroactive application. Gosnell v. Indiana
               Soft Water Service, 503 N.E.2d 879, 880 (Ind. 1987).
       Chesnut v. Roof, 665 N.E.2d 7, 9 (Ind. Ct. App. 1996). In determining whether a

       statute applies retroactively, “the court must ask whether the new provision

       attaches new legal consequences to events completed before its enactment.”

       Landgraf v. USI Film Prod., 511 U.S. 244, 270–71 (1994).

[12]   We have little trouble concluding that Smith’s retroactivity argument has merit.

       Applying CAPSA’s notice requirements to Smith’s claim would be to attach

       new legal consequences to an event that occurred before CAPSA was the law,

       i.e., retroactively. There is, however, no indication whatsoever that the General

       Assembly intended CAPSA to apply retroactively, much less an express

       indication. We must therefore presume that only prospective application was

       intended. Because we conclude that applying CAPSA to Smith’s claim would

       amount to an impermissible retroactive application, we need not address the

       other grounds on which he argues that CAPSA does not apply here or his claim

       that the ITCA Notice satisfied CAPSA’s notice requirements.


                                                Conclusion
[13]   We conclude that the compliance of Smith’s claim with ITCA notice

       requirements has been conclusively established. We further conclude that

       CAPSA does not apply to Smith’s claim, as that would constitute retroactive




       Court of Appeals of Indiana | Opinion 19A-CT-1244 | November 6, 2019          Page 8 of 9
       and, in this case, impermissible application of CAPSA. Because the trial court

       never should have dismissed Smith’s claim for failing to satisfy CAPSA, we

       conclude that it abused its discretion in failing to find good cause to reinstate it.

[14]   We reverse the judgment of the trial court and remand with instructions to

       reinstate Smith’s tort claim against the School.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CT-1244 | November 6, 2019         Page 9 of 9
