MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Sep 28 2018, 8:31 am

regarded as precedent or cited before any                                    CLERK
                                                                         Indiana Supreme Court
court except for the purpose of establishing                                Court of Appeals
                                                                              and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Gregory P. Gadson                                        John C. Trimble
Noblesville, Indiana                                     Neal Bowling
                                                         Lynsey F. David
                                                         Lewis Wagner, LLP
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Maynona Blackmon,                                        September 28, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         49A02-1707-CT-1488
        v.                                               Appeal from the Marion Superior
                                                         Court
Mt. Zion Apostolic Church, Inc.                          The Honorable Gary Miller, Judge
Appellee-Defendant.                                      Trial Court Cause No.
                                                         49D03-1602-CT-6040



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CT-1488 | September 28, 2018        Page 1 of 12
                                       Statement of the Case
[1]   Appellant-Plaintiff, Maynona Blackmon (“Blackmon”), appeals the trial court’s

      grant of summary judgment to Appellee-Defendant, Mt. Zion Apostolic Church

      (“Mt. Zion”). After Blackmon’s son died on Mt. Zion’s property, Blackmon

      filed a complaint, containing one wrongful death claim and six survival claims

      (Counts 1 through 7), and she alleged that she was raising these claims on

      behalf of her son as his personal representative. She also filed an amended

      complaint, adding two emotional distress claims (Counts 8 and 9) filed on her

      own behalf. When Mt. Zion filed its answer, it addressed only Counts 1

      through 7 and raised multiple affirmative defenses, including lack of standing.

      Thereafter, Mt. Zion filed a motion for partial summary judgment, arguing that

      it was entitled to summary judgment on Counts 1 through 7 as a matter of law

      because Blackmon did not have the appropriate legal status within the relevant

      statutory filing period to raise the wrongful death claim and the six survival

      claims. More specifically, it argued that Counts 1 through 7 could only be

      brought by a personal representative and that Blackmon was not the personal

      representative within the two-year statutory period for the wrongful death claim

      and the eighteen-month period for the survival claims. The trial court granted

      partial summary judgment in favor of Mt. Zion relating to Counts 1 through 7,

      the wrongful death claim and the survival claims, and its order included

      language that there was no just reason for delay and that the judgment was

      final.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CT-1488 | September 28, 2018   Page 2 of 12
[2]   On appeal, Blackmon does not dispute that she was not her son’s personal

      representative within the relevant statutory period for filing the wrongful death

      and survival claims. Instead, she argues that Mt. Zion waived any affirmative

      defense to these seven claims and that it was precluded from raising the lack of

      standing defense in its summary judgment motion.1 Concluding that

      Blackmon’s argument is without merit, we affirm the trial court’s grant of

      partial summary judgment to Mt. Zion on Blackmon’s wrongful death and

      survival claims (Counts 1 through 7), and we remand this case for further

      proceedings on the pending emotional distress claims (Counts 8 and 9).


[3]   We affirm and remand.


                                                      Issue
              Whether the trial court erred by granting Mt. Zion’s motion for
              partial summary judgment on Blackmon’s wrongful death and
              survival claims.

                                                      Facts
[4]   On October 5, 2014, Blackmon’s twenty-five-year old son died in a retention

      pond on Mt. Zion’s premises. On February 18, 2016, Blackmon filed a




      1
       Blackmon also argues that the trial court erred by granting summary judgment to Mt. Zion on Counts 8 and
      9, the emotional distress claims that she brought on her own behalf. Mt. Zion acknowledges that it did not
      move for summary judgment on Counts 8 and 9 and asserts that, accordingly, the trial court did not grant
      summary judgment to Mt. Zion on Counts 8 and 9. Our review of the record reveals that the trial court
      granted partial summary judgment to Mt. Zion on Counts 1 through 7 only and that Counts 8 and 9 are still
      pending before the trial court.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CT-1488 | September 28, 2018     Page 3 of 12
      complaint against Mt. Zion.2 She raised seven claims (collectively, “Counts 1

      through 7”), including one wrongful death claim under INDIANA CODE § 34-23-

      1-2 (“wrongful death claim”) and six claims under the survival statute,

      INDIANA CODE §§ 34-9-3-1 and 34-9-3-4 (“survival claims”).3 Blackmon also

      alleged that she was raising these claims on behalf of her son as his personal

      representative.


[5]   A couple of weeks later, on February 29, 2016, Blackmon filed an amended

      complaint, in which she added two additional claims to her prior seven claims.

      Specifically, she raised claims for negligent infliction of emotion distress and

      intentional infliction of emotion distress on her own behalf (“Counts 8 and 9”

      or “emotional distress claims”).


[6]   On April 13, 2016, Mt. Zion filed an answer and affirmative defenses. In its

      answer, Mt. Zion addressed Blackmon’s original complaint, not her amended

      complaint. Thus, Mt. Zion addressed only the allegations in Counts 1 through

      7. As for affirmative defenses to Blackmon’s wrongful death and survival

      claims, Mt. Zion alleged, in relevant part, that Blackmon “lacked standing to

      bring any of the claims she [wa]s bringing.” (App. Vol. 2 at 55).




      2
       Blackmon also filed the complaint against “Does 1-25[,]” whom she alleged were “yet unnamed
      Defendants” who were “complicit and culpable” with Mt. Zion. (App. Vol. 2 at 8).
      3
        Blackmon claims under the survival statute included the following: (1) battery; (2) assault; (3) intentional
      infliction of emotional distress; (4) negligent infliction of emotional distress; (5) general negligence; and (6)
      premises liability negligence.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CT-1488 | September 28, 2018              Page 4 of 12
[7]   Mt. Zion filed a motion for summary judgment on May 4, 2017. Mt. Zion

      sought summary judgment on only Counts 1 through 7 and did not mention

      Counts 8 and 9. Thus, its motion for summary judgment was technically a

      motion for partial summary judgment. Mt. Zion requested the trial court to

      enter a final judgment in its favor pursuant to Indiana Trial Rule 54(B). Mt.

      Zion argued that it was entitled to summary judgment on the wrongful death

      claim and survival claims because Blackmon lacked “proper legal status” to

      bring these claims since she was not the personal representative of her son’s

      estate and no estate had been opened for him. (App. Vol. 2 at 61). Citing to

      caselaw in support of its argument, Mt. Zion also contended that even if

      Blackmon were to open an estate and become the personal representative, it

      was still entitled to summary judgment because the statutory filing period for a

      personal representative to file a wrongful death claim (two years) and survival

      claims (eighteen months) had already expired and this change in legal status

      would not relate back. Thus, Mt. Zion argued that it was entitled to judgment

      as a matter of law because Blackmon did not have the appropriate legal status

      within the relevant statutory filing period.


[8]   In her summary judgment response, Blackmon did not dispute the fact that she

      was not the personal representative for her son’s estate. Nor did she contend

      that she had opened an estate for her son. Instead, she argued that the trial

      court should not grant summary judgment to Mt. Zion on Counts 1 through 7,

      the wrongful death claim and the six survival claims, because Mt. Zion had

      waived its right to assert an affirmative defense on summary judgment. She


      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CT-1488 | September 28, 2018   Page 5 of 12
      acknowledged that Mt. Zion had raised lack of standing as a defense in its

      answer but argued that it should have been more specific when pleading the

      defense in its answer. Blackmon also pointed out that Mt. Zion’s answer did

      not address Counts 8 and 9 from her amended complaint. She argued that the

      trial court should not grant summary judgment for Counts 8 and 9 because

      these emotional distress claims related to harm to her and did not depend on

      her status as a personal representative under the wrongful death and survival

      statues.4


[9]   Thereafter, the trial court issued an order in which it granted Mt. Zion’s partial

      summary judgment motion. The trial court’s order provided that “there [wa]s

      no just reason for delay” and that “final judgment” was entered for Mt. Zion.

      (App. Vol. 2 at 11).5 Blackmon filed a motion to correct error, and the trial

      court denied it.6 Blackmon now appeals.




      4
       On appeal, Mt. Zion alleged that Blackmon’s summary judgment response was untimely and should not be
      considered. Mt. Zion, however, raised no such argument to the trial court.
      5
        Thus, the language of the trial court’s order reflected the “magic language” of Trial Rule 54(B), making it a
      final, appealable order for the summary judgment entered on Counts 1 through 7. See Georgos v. Jackson, 790
      N.E.2d 448, 452 (Ind. 2003), reh’g denied.
      6
          Blackmon also filed a motion for default judgment, which the trial court denied.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CT-1488 | September 28, 2018          Page 6 of 12
                                                   Decision
[10]   Blackmon argues that the trial court erred by granting summary judgment to

       Mt. Zion on Counts 1 through 7, the wrongful death claim and the six survival

       claims that she brought on behalf of her deceased son.


[11]   Our standard of review for summary judgment cases is well settled. When we

       review a trial court’s grant of a motion for summary judgment, our standard of

       review is the same as it is for the trial court. Knighten v. E. Chi. Hous. Auth., 45

       N.E.3d 788, 791 (Ind. 2015). Summary judgment is appropriate only where the

       moving party has shown that there is no genuine issue of material fact and it is

       entitled to judgment as a matter of law. Hughley v. State, 15 N.E.3d 1000, 1003

       (Ind. 2014). Only after the moving party carries its burden is the non-moving

       party then required to present evidence establishing the existence of a genuine

       issue of material fact. Knighten, 45 N.E.3d at 791. Additionally, “[w]e construe

       all factual inferences in favor of the non-moving party and resolve all doubts

       regarding the existence of a material issue against the moving party.” Id.


[12]   “The General Assembly has enacted legislation to provide causes of action

       through various acts, such as the Survival Statute and the Wrongful Death

       Act[,]” and these statutes “create a new right in favor of the legal representative

       of the injured decedent.” Faris v. AC & S, Inc., 842 N.E.2d 870, 874 (Ind. Ct.

       App. 2006), reh’g denied. However, “Indiana case law is . . . clear that the only

       proper plaintiff in a wrongful death action is the one designated in the wrongful

       death statute, i.e., the personal representative.” Gen. Motors Corp. v. Arnett, 418


       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CT-1488 | September 28, 2018   Page 7 of 12
       N.E.2d 546, 548 (Ind. Ct. App. 1981). See also I.C. § 34-23-1-1(b) (providing

       that “only the personal representative of the adult person may maintain an

       action against the person whose wrongful act or omission caused the death of

       the adult person”); Goleski v. Fritz, 768 N.E.2d 889, 890 (Ind. 2002) (explaining

       that under the wrongful death act, “the personal representative” of the deceased

       may bring an action within two years); Hosler ex rel. Hosler v. Caterpillar, Inc., 710

       N.E.2d 193, 196 (Ind. Ct. App. 1999) (explaining that a claim under the

       wrongful death act must be commenced by the personal representative of the

       decedent within two years), reh’g denied, trans. denied; South v. White River Farm

       Bureau Co-op., 639 N.E.2d 671, 673 (Ind. Ct. App. 1994) (“Indiana’s wrongful

       death statute grants the right to maintain a wrongful death action only to the

       personal representative of the decedent), trans. denied. “Indeed, the bringing of

       the action by one in the capacity of personal representative is a condition

       precedent to the action.” South, 639 N.E.2d at 673 (citing Gen. Motors, 418

       N.E.2d at 548).


[13]   Similarly, the survival statute provides that a decedent’s personal representative

       is the party who is to raise any survival claim on the decedent’s behalf. See I.C.

       § 34-9-3-4(b) (providing that “[t]he personal representative of the decedent who

       was injured may maintain an action against the wrongdoer to recover all

       damages resulting before the date of death from those injuries that the decedent

       would have been entitled to recover had the decedent lived”); Faris, 842 N.E.2d

       at 874 (explaining that “[u]nder the plain language of the Survival Statute, only

       the personal representative of [the decedent’s] estate, not [the plaintiff] as an

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CT-1488 | September 28, 2018   Page 8 of 12
       individual, could properly institute [a] lawsuit” for survival claims within

       eighteen months after the death of the decedent). Additionally, a party who

       does not have the appropriate legal status during the requisite time period for

       initiating a wrongful death claim or a survival claim cannot save these claims by

       filing an amended complaint. See Faris, 842 N.E.2d at 875 (setting forth a “rule

       that an amended complaint will relate back if the claimant gains the appropriate

       legal status within the statute of limitations and affirming the dismissal of the

       plaintiff’s survival claims where she was not the personal representative of the

       decedent’s estate within the requisite eighteen-month period); Hosler, 710

       N.E.2d at 196 (explaining that Indiana Trial Rule 15(C) does not alter a party’s

       legal status and cannot be used to save a wrongful death claim from dismissal);

       Gen. Motors, 418 N.E.2d at 549 (holding that “[i]n an Indiana wrongful death

       action neither the belated appointment [as personal representative] itself nor an

       amended complaint can relate back to the date of the original filing” and

       explaining that Indiana Trial Rules 15(C) and 17(A) could not save the

       plaintiff’s wrongful death claim where she was not the personal representative

       of the decedent’s estate within the requisite two-year period).


[14]   On appeal, Blackmon does not dispute the fact that she was not the personal

       representative during the relevant statutory filing period for the wrongful death

       claim and the survival claims raised in Counts 1 through 7. Instead, she

       contends that the trial court erred by granting summary judgment on Counts 1

       through 7 because Mt. Zion waived its right to assert an affirmative defense

       pursuant to Trial Rule 8(C).


       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CT-1488 | September 28, 2018   Page 9 of 12
[15]   Indiana Trial Rule 8(C) provides as follows:


               (C) Affirmative defenses. A responsive pleading shall set forth
               affirmatively and carry the burden of proving: accord and
               satisfaction, arbitration and award, discharge in bankruptcy,
               duress, estoppel, failure of consideration, fraud, illegality, injury
               by fellow servant, laches, license, payment, release, res judicata,
               statute of frauds, statute of limitations, waiver, lack of
               jurisdiction over the subject-matter, lack of jurisdiction over the
               person, improper venue, insufficiency of process or service of
               process, the same action pending in another state court of this
               state, and any other matter constituting an avoidance, matter of
               abatement, or affirmative defense. A party required to
               affirmatively plead any matters, including matters formerly
               required to be pleaded affirmatively by reply, shall have the
               burden of proving such matters. The burden of proof imposed by
               this or any other provision of these rules is subject to the rules of
               evidence or any statute fixing a different rule. If the pleading
               mistakenly designates a defense as a counterclaim or a
               counterclaim as a defense, the court shall treat the pleading as if
               there had been a proper designation.

       When discussing Trial Rule 8(C), our supreme court has explained that “[t]he

       list of affirmative defenses contained in the Rule is not exhaustive” and that “a

       party seeking the benefit of an affirmative defense must raise and specifically

       plead that defense or it is waived.” Willis v. Westerfield, 839 N.E.2d 1179, 1185

       (Ind. 2006).


[16]   Here, when Mt. Zion filed its answer, it alleged, as one of its affirmative

       defenses against Blackmon’s wrongful death and survival claims, that

       Blackmon “lacked standing to bring any of the claims she [wa]s bringing.”

       (App. Vol. 2 at 55). Blackmon acknowledges that Mt. Zion raised lack of

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CT-1488 | September 28, 2018 Page 10 of 12
       standing as a defense in its answer, but she contends that this defense was not

       specific enough or was not “specifically plead.” (Blackmon’s Br. 13). She

       suggests that “[m]ore appropriate or acceptable examples” would include the

       following: (1) “the Plaintiff is not (or is not known to be) the Personal

       Representative of the decedent, and therefore lacks standing under the wrongful

       death and survival statutes to bring and maintain the current action[;]” or (2)

       “the Plaintiff lacks the standing required under the wrongful death and survivor

       statutes to bring claims on behalf of the decedent.” (Blackmon’s Br. 12). She

       contends, without citation to relevant authority, that the lack of extra detail

       resulted in waiver of the defense and precluded Mt. Zion from raising the

       affirmative defense in its summary judgment motion.


[17]   Mt. Zion raised and specifically plead a lack of standing defense in its answer.

       It did not raise this defense for the first time in summary judgment. Thus, we

       conclude that Blackmon’s argument is without merit. 7 Accordingly, we affirm

       the trial court’s grant of partial summary judgment to Mt. Zion on Blackmon’s

       wrongful death and survival claims (Counts 1 through 7), and we remand this

       case for further proceedings on the pending emotional distress claims (Counts 8

       and 9).




       7
        We also reject Blackmon’s contention that Mt. Zion waived its lack of standing affirmative defense to her
       wrongful death and survival claims (Counts 1 through 7) because its answer did not specifically address her
       emotional distress claims (Count 8 and 9) in her amended complaint. She makes no cogent argument to
       support this contention, and we will not address it further. See Ind. App. R. 46(A)(8).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CT-1488 | September 28, 2018 Page 11 of 12
[18]   Affirmed and remanded for further proceedings.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CT-1488 | September 28, 2018 Page 12 of 12
