                                                                               FILED
                                                                          May 16 2018, 10:23 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
Timothy F. Devereux                                       Thomas J. Jarzyniecki, Jr.
Ladendorf Law                                             Susan R. Shan
Indianapolis, Indiana                                     Kightlinger & Gray, LLP
                                                          Indianapolis, Indiana

                                                          Crystal G. Rowe
                                                          Kightlinger & Gray, LLP
                                                          New Albany, Indiana
                                                          Attorneys for MGA Family Group, Inc,
                                                          and H Properties LLP




                                            IN THE
    COURT OF APPEALS OF INDIANA

Lillian Parsley, as the Guardian,                         May 16, 2018
Grandparent, and Next Friend of                           Court of Appeals Case No.
Robert Parsley, Deceased,                                 19A01-1707-CT-1535
                                                          Appeal from the Dubois Superior
Appellant-Plaintiff,
                                                          Court.
                                                          The Honorable Mark R. McConnell,
        v.                                                Judge.
                                                          Trial Court Cause No.
MGA Family Group, Inc., H                                 19D01-1610-CT-545
Properties LLP, Mark Snedeker,
and Video Tech/Direct Maytag
HAC,
Appellees-Defendants.




Sharpnack, Senior Judge

Court of Appeals of Indiana | Opinion 19A01-1707-CT-1535 | May 16, 2018                            Page 1 of 12
                                      Statement of the Case
[1]   After a fire took the lives of Lillian Parsley’s daughter and grandson, she sought

      wrongful death damages. She brings this interlocutory appeal from the trial

      court’s order that granted MGA Family Group, Inc., H Properties LLP, and

      Mark Snedeker’s (collectively, “the Defendants”) motion to dismiss the

      wrongful death action that Lillian initiated as to her grandson. We affirm.


                                                      Issue
[2]   The issue Lillian presents for our review (consolidated and restated) is whether

      the trial court erred in granting the Defendants’ motion to dismiss her wrongful

      death action as to her grandson.


                                Facts and Procedural History
[3]   Linsey Parsley had given birth to her son, Robert, while she was a sophomore

      in high school. On November 26, 2014, Linsey, then twenty years old, and her

      three-year-old son Robert were living in a Jasper, Indiana apartment with Alex

      Snedeker. On that day, Linsey, Robert, and Alex died as the result of an

      apartment fire. Following the deaths, Linsey’s mother, Lillian was appointed

      personal representative of Linsey’s estate.


[4]   On October 21, 2016, Lillian brought an action against the Defendants to

      recover damages for Linsey’s death, under the Indiana Adult Wrongful Death




      Court of Appeals of Indiana | Opinion 19A01-1707-CT-1535 | May 16, 2018   Page 2 of 12
                                                                                                             1
      Statute, and for Robert’s death under the Child Wrongful Death Statute

      (CWDS). Lillian brought the wrongful death claim as to Robert as his

      “Guardian, Grandparent and Next Friend.” Appellant’s App. Vol. II, p. 17.


[5]   On December 14, 2016, the Defendants filed an Indiana Trial Rule 12(B)(6)

      motion to dismiss, claiming Lillian’s complaint failed to state a claim upon

      which relief could be granted. The motion alleged specifically that she lacked

      standing to pursue a claim for Robert under the CWDS because she was neither

      Robert’s parent nor guardian at the time of his death. Lillian filed a response
                                                           2
      that included supplemental material. Following a hearing, the trial court

      dismissed Lillian’s wrongful death claim as to Robert.


[6]   Lillian filed a motion to reconsider, and the trial court denied her motion.

      Upon Lillian’s request, the trial court certified the order for interlocutory

      appeal, and Lillian then sought leave to pursue a discretionary interlocutory




      1
          Ind. Code § 34-23-2-1 (2009).
      2
       Lillian supplemented her response to the Defendants’ Indiana Trial Rule 12(B)(6) motion to dismiss with an
      affidavit and her tax returns. Per Dixon v. Siwy, 661 N.E.2d 600, 603 (Ind. Ct. App. 1996):
               [W]hen examination of the face of a complaint alone reveals that the plaintiff will not be entitled
               to relief under any set of circumstances, consideration of external materials aimed at
               substantiating or contradicting the complaint’s factual allegations is irrelevant, because a
               fortiori the complaint fails to state a claim upon which relief can be granted under any factual
               scenario. In that instance, the trial court should exclude material outside the pleadings which
               are submitted with a 12(B)(6) motion, rather than convert the motion into one for summary
               judgment, because the external materials are irrelevant to the motion.
      Although the trial court did not expressly exclude Lillian’s supplemental material, there is no evidence that
      the trial court considered the material in making its determination to grant the Defendants’ motion to
      dismiss. See, e.g., Trail v. Boys and Girls Clubs of Nw. Ind., 845 N.E.2d 130, 134, 140 (Ind. 2006) (affirming the
      trial court’s grant of a motion to dismiss under Rule 12(B)(6) even after the parties “filed several affidavits,
      exhibits, and briefs”).

      Court of Appeals of Indiana | Opinion 19A01-1707-CT-1535 | May 16, 2018                               Page 3 of 12
      appeal of the trial court’s order. We granted her motion, and this appeal

      ensued.


                                      Discussion and Decision
                                                Motion to Strike
[7]   Initially, we must address MGA Family Group and H. Properties’ motion to

      strike portions of Lillian’s brief and appendix and portions of Appellee Mark

      Snedeker’s appendix. MGA Family Group and H. Properties allege that the

      brief and appendices contain or refer to materials that are not part of the record

      for the motion to dismiss, i.e., an order from an unrelated case, pleadings that

      pertain to a separate motion filed by MGA Family Group and H. Properties for

      judgment on the pleadings, a Marion County Superior Court decision from an

      unrelated case, a deposition, “Pew Research” statistics, a lease agreement, and

      an affidavit. By separate order issued contemporaneously with this opinion, we
                                                                                                3
      grant MGA Family Group and H. Properties’ motion to strike.


                                             Standard of Review
[8]   A motion to dismiss for failure to state a claim tests the legal sufficiency of

      the claim, not the facts supporting it. Babes Showclub, Jaba, Inc. v. Lair, 918

      N.E.2d 308, 310 (Ind. 2009). Review of a trial court’s grant or denial of a




      3
       Since the filing of the motion to strike, the parties to this appeal agreed to a dismissal with prejudice of the
      underlying action as to Mark Snedeker only. By separate order, this court dismissed Snedeker’s appeal with
      prejudice on January 4, 2018.

      Court of Appeals of Indiana | Opinion 19A01-1707-CT-1535 | May 16, 2018                              Page 4 of 12
      motion based on a Trial Rule 12(B)(6) motion to dismiss is therefore de

      novo. Id. When reviewing a motion to dismiss, we view the pleadings in the

      light most favorable to the nonmoving party, with every reasonable inference

      construed in the nonmovant’s favor. Id. In ruling on such a motion to dismiss,

      a court is required to take as true all allegations upon the face of the complaint

      and may only dismiss if the plaintiff would not be entitled to recover under any

      set of facts admissible under the allegations of the complaint. Meyers v. Meyers,

      861 N.E.2d 704, 705 (Ind. 2007). In determining whether any facts will support

      the claim, we look only to the complaint and may not resort to any other

      evidence in the record. Burke v. Town of Schererville, 739 N.E.2d 1086, 1091

      (Ind. Ct. App. 2000), trans. denied.


                        Dismissal of Wrongful Death Complaint
[9]   At common law, a cause of action was extinguished by the death of the

      plaintiff. Durham ex rel. Estate of Wade v. U-Haul Int’l, 745 N.E.2d 755, 758 (Ind.

      2001). Because the victim was viewed as the only person wronged by a

      negligent killing, even a defendant whose negligence caused the plaintiff’s death

      was insulated from liability. Id. This inequity gave rise to wrongful death

      statutes, first in England and soon thereafter in every United States

      jurisdiction. Id. An action for wrongful death is therefore purely statutory and

      is strictly construed. Id. at 759.




      Court of Appeals of Indiana | Opinion 19A01-1707-CT-1535 | May 16, 2018   Page 5 of 12
[10]   Our General Assembly has enacted a statute that provides an action for the

       wrongful death of a child and specifies who may maintain such an action as

       follows:


               (c) An action may be maintained under this section against the
               person whose wrongful act or omission caused the injury or
               death of a child. The action may be maintained by:
                        (1) the father and mother jointly, or either of them by
                        naming the other parent as a codefendant to answer as to
                        his or her interest;
                        (2) in case of divorce or dissolution of marriage, the person
                        to whom custody of the child was awarded; and
                        (3) a guardian, for the injury or death of a protected
                        person.
               (d) In case of death of the person to whom custody of a child was
               awarded, a personal representative shall be appointed to
               maintain the action for the injury or death of the child.
               (e) In an action brought by a guardian for an injury to a protected
               person, the damages inure to the benefit of the protected person.


       Ind. Code § 34-23-2-1. The only provision under which Lillian could maintain

       an action is (c)(3) as “a guardian, for the injury or death of a protected person.”

       Id.


[11]   Lillian argues she has standing to bring an action under the CWDS because at

       the time of Robert’s death, she was Robert’s “‘de facto custodian’” and

       “qualifie[d]” as his guardian, as contemplated by the CWDS, as she was “the

       person who provided all of the financial, housing, clothing and other physical

       needs of [Robert].” Appellant’s Br. pp. 9, 16. Lillian contends that the trial


       Court of Appeals of Indiana | Opinion 19A01-1707-CT-1535 | May 16, 2018      Page 6 of 12
       court erred in dismissing her claim because it misinterpreted the meaning of the

       term “guardian.” According to Lillian, the trial court interpreted the term in an

       overly narrow manner when it concluded that the term meant only a legal

       guardian or court-appointed guardian. Per Lillian, the court’s interpretation is

       inconsistent with our General Assembly’s intent to give phrases their plain and

       ordinary meaning, and that if the term is given its plain and ordinary meaning,

       she would qualify as Robert’s guardian and have standing to bring her claim.

       She also argues the trial court’s decision is contrary to Indiana’s public policy

       and “results in an unjustly harsh outcome not intended by the Indiana

       Legislature.” Id. at 10.


[12]   The Defendants assert that the trial court properly dismissed Lillian’s claim, “as

       [her claim] does not set forth the operative facts necessary to support her alleged

       ‘guardian’ status.” Appellee’s Br. p. 13. According to the Defendants, to

       qualify as a guardian, one must be appointed as such by the court. The

       Defendants contend that Lillian’s interpretation of what constitutes a guardian

       under the CWDS improperly invites this court to expand the scope of meaning

       of the term, and that Lillian’s claims that she qualifies as a “de facto” guardian

       under the CWDS fail.


[13]   The interpretation of a statute is not a question of fact but one of law reserved

       for the courts. Robinson v. Zeedyk, 625 N.E.2d 1249, 1251 (Ind. Ct. App.

       1993), trans. denied. If a statute is unambiguous, that is, susceptible to but one

       meaning, we must give the statute its clear and plain meaning. See Elmer Buchta

       Trucking, Inc. v. Stanley, 744 N.E.2d 939, 942 (Ind. 2001). If a statute is

       Court of Appeals of Indiana | Opinion 19A01-1707-CT-1535 | May 16, 2018       Page 7 of 12
       susceptible to multiple interpretations, however, we must try to ascertain the

       legislature’s intent and interpret the statute so as to effectuate that intent. Id.

       We presume the legislature intended logical application of the language used in

       the statute, so as to avoid unjust or absurd results. Sales v. State, 723 N.E.2d

       416, 420 (Ind. 2000).


[14]   In construing a particular statute, related statutes are in pari materia and should

       also be considered to effectuate legislative intent. “‘Where statutes address the

       same subject, they are in pari materia, and we harmonize them if possible.’”

       Hall Drive Ins., Inc. v. City of Fort Wayne, 773 N.E.2d 255, 257 (Ind. 2002)

       (citation omitted).


[15]   “When interpreting the words of a single section of a statute, this court must

       construe them with due regard for all other sections of the act and with regard

       for the legislative intent to carry out the spirit and purpose of the act.” State v.

       CSX Transp., Inc., 673 N.E.2d 517, 519 (Ind. Ct. App. 1996). There is a

       presumption that the legislature intended its language to be applied in a logical

       manner consistent with the statute’s underlying policy and goals. Id.


[16]   We give undefined words in statutes their plain, ordinary, and usual meaning.

       600 Land, Inc. v. Metro. Bd. of Zoning Appeals of Marion Cty., 889 N.E.2d 305, 309

       (Ind. 2008); Ind. Code § 1-1-4-1(1) (1991). Courts may consult English

       language dictionaries to ascertain the plain and ordinary meaning of a statutory

       term. State Bd. of Accounts v. Ind. Univ. Found., 647 N.E.2d 342, 347 (Ind. Ct.

       App. 1995), trans. denied. The legislative definition of certain words in one


       Court of Appeals of Indiana | Opinion 19A01-1707-CT-1535 | May 16, 2018      Page 8 of 12
       statute, while not conclusive, is entitled to consideration in construing the

       same words in another statute. Id. at 347-48.


[17]   Lillian cannot maintain an action under the CWDS unless she qualifies as

       Robert’s guardian. See I.C. § 34-23-2-1. As such, at issue in this case is the

       meaning of the term “guardian” as used in the CWDS, which necessitates a

       determination of the statutory meaning of the term “guardian” to resolve the

       following: whether someone like Lillian, who without court intervention

       provides care and financial support to another, comes within the statutory

       definition of the term.


[18]   The term “guardian” is not defined in title 34, article 23 of the Indiana Code;

       however, the term is defined in other parts of the code. In Title 29, Article 3

       (“Guardianships and Protective Proceedings”), section 29-3-1-6 (1989) defines

       “guardian” as follows:


               “Guardian” means a person who is a fiduciary and is appointed by
               a court to be a guardian or conservator responsible as the court
               may direct for the person or the property of an incapacitated
               person or a minor. The term includes a temporary guardian, a
               limited guardian, and a successor guardian but excludes one who
               is only a guardian ad litem. The terms guardian and conservator
               are interchangeable.


       (Emphasis added.) Under title 31 (addressing family and juvenile law), article 9

       defines “guardian” as follows: “for purposes of the juvenile law, means a

       person appointed by a court to have the care and custody of a child or the child’s

       estate, or both.” Ind. Code § 31-9-2-49 (2014) (emphasis added).

       Court of Appeals of Indiana | Opinion 19A01-1707-CT-1535 | May 16, 2018   Page 9 of 12
[19]   The dictionary definitions of this term are similar to the statutory definitions.

       The American Heritage College Dictionary defines “guardian” as “1. One that

       guards, watches over, or protects. 2. Law. One who is legally responsible for

       the care and management of the person or property of an incompetent or a

       minor.” 603 (3rd ed. 2000) (emphasis added). Black’s Law Dictionary defines

       the term as “[s]omeone who has the legal authority and duty to care for

       another’s person or property, esp. because of the other’s infancy, incapacity, or

       disability.” 822 (10th ed. 2014) (emphasis added).


[20]   There is a common theme in the dictionary definitions and the statutory

       definitions, i.e., they consistently contemplate a relationship between two

       people with one person having the authority or responsibility to care for the

       other. In addition, the statutory and legal definitions of the term “guardian”

       anticipate the involvement of the court in appointing a person to that capacity.

       Also, the phrase “protected person” used in Indiana Code section 34-23-2-

       1(c)(3) is defined in Indiana Code section 29-3-1-13 (1989) as “an individual for

       whom a guardian has been appointed or with respect to whom a protective
                                      4
       order has been issued.”




       4
        Indiana Code section 34-6-2-121.4 (2002) defines “protected person” as “a petitioner or a family or
       household member of the petitioner who is protected by the terms of a civil protective order issued under IC
       34-26-5.” However, we believe the definition provided in Indiana Code section 29-3-1-13 is the appropriate
       definition to apply under the circumstances of this case.



       Court of Appeals of Indiana | Opinion 19A01-1707-CT-1535 | May 16, 2018                         Page 10 of 12
[21]   Examining the statutes that define the term “guardian” and “protected person”

       and applying those definitions to the CWDS, it is apparent that our General

       Assembly intended a guardian to be someone appointed by the court to be

       responsible for the care of a particular person or that person’s property. Lillian

       was never appointed by a court to be Robert’s guardian. Although it is clear

       Lillian has sustained a loss in the death of her grandson, she simply does not

       meet the statutory requirement to maintain an action. It is not for us to rewrite

       or amend the statute. As such, she does not fall within the meaning of

       “guardian” as contemplated by the CWDS, and she is not entitled to maintain

       an action under the CWDS as Robert’s guardian.


[22]   Lillian further asserts that the trial court’s interpretation of the term “guardian”

       in the CWDS, i.e., allowing for only those individuals appointed guardians by a

       court, is contrary to public policy. According to Lillian:


               Societal changes and the evolution of family and home structures
               have created situations, like here, where someone other than the
               parent is the person supporting the child in virtually every way.
               Despite providing for all of a child’s financial and physical needs,
               such a narrow interpretation of the CWDS adopted by the Trial
               Court, denies those persons providing that full support of the
               child any interest in litigation when that child wrongfully dies.
                                                       *****
               In a society where six percent (6%) of children live in a
               household maintained by grandparents, an overly narrow
               definition of guardian within the CWDS has the ability to affect
               family relationships by restricting rights from those who take on
               all the responsibility of a guardian and receive no benefit of that
               guardianship in the event of the child’s wrongful death absent an

       Court of Appeals of Indiana | Opinion 19A01-1707-CT-1535 | May 16, 2018   Page 11 of 12
                official court-issued order declaring them as a “legal” guardian.


       Appellant’s Br. pp. 17-18.


[23]   While we may review the power of our General Assembly to act, we must not

       evaluate the policies adopted by it. Kaser v. Barker, 811 N.E.2d 930, 932 (Ind.

       Ct. App. 2004), trans. denied. “The right and responsibility to determine these

       public policies, and to adopt, improve, refine, and perfect legislation directed

       thereto, falls to the legislature, not the courts.” Id. at 932-33. Our role is to

       construe and apply enactments so as to carry out legislative intent. Id. at 933.


                                                 Conclusion
[24]   Because Lillian was not Robert’s guardian as contemplated by the CWDS, she

       lacked standing to bring her wrongful death claim. The trial court did not err in

       granting the Defendants’ motion to dismiss. We affirm the decision of the trial

       court.


[25]   Affirmed.


       Barnes, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 19A01-1707-CT-1535 | May 16, 2018      Page 12 of 12
