MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEES
Jeffrey A. Golding                                       CIVIL CITY OF SOUTH BEND,
Valparaiso, Indiana                                      SOUTH BEND POLICE
                                                         DEPARTMENT, CITY
                                                         ATTORNEY’S OFFICE, ET AL.
                                                         Aladean M. DeRose
                                                         City Attorney
                                                         South Bend, Indiana
                                                         ATTORNEYS FOR APPELLEES
                                                         ST. JOSEPH COUNTY
                                                         PROSECUTING ATTORNEY,
                                                         MICHAEL DVORAK, KEN COTTER,
                                                         ST. JOSEPH COUNTY CORONER’S
                                                         OFFICE, RANDY MAGDALINSKI,
                                                         ST. JOSEPH COUNTY METRO
                                                         HOMICIDE UNIT, AND TIM
                                                         CORBETT
                                                         James F. Groves
                                                         David E. Ballard
                                                         Lee, Groves & Zalas
                                                         South Bend, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CT-53 | October 16, 2015   Page 1 of 10
      Tanya Anderson and Delmonte                                 October 16, 2015
      Anderson, Individually and as                               Court of Appeals Case No.
      Personal Representatives of the                             71A03-1502-CT-53
      Supervised Estate of Michael                                Appeal from the St. Joseph
      Delshawn Anderson, Deceased,                                Superior Court
      et al.,                                                     The Honorable Jenny Pitts Manier,
      Appellants-Plaintiffs,                                      Judge
                                                                  Trial Court Cause No.
                 v.                                               71D05-1407-CT-258

      Civil City of South Bend a/k/a
      “City of South Bend,” South
      Bend Police Department, St.
      Joseph County Prosecuting                                                  Oct 16 2015, 5:48 am
      Attorney, St. Joseph County
      Coroner’s Office, St. Joseph
      County Metro Homicide Unit, et
      al.,
      Appellees-Defendants




      Crone, Judge.


                                                Case Summary
[1]   Michael Delshawn Anderson (“Michael”) 1 was allegedly tased and assaulted by

      South Bend police officers and died in police custody. On the last day of the

      statutory limitations period, Michael’s parents, Tanya and Delmonte Anderson,

      filed a wrongful death complaint against various defendants affiliated with the




      1
          Because appellants have a common surname, we refer to Michael by his first name.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CT-53 | October 16, 2015             Page 2 of 10
      Civil City of South Bend (collectively “the City Defendants”) and St. Joseph

      County (collectively “the County Defendants”) on behalf of themselves

      individually and as personal representatives of Michael’s estate, as well as on

      behalf of Michael’s minor children (collectively “the Plaintiffs”). The

      complaint was file-stamped with that date, and the summonses furnished by the

      Plaintiffs were file-stamped eight days later. The City Defendants filed a

      motion to dismiss the Plaintiffs’ complaint, presumably on the basis that the

      lawsuit was untimely because the summonses were not “filed” with the clerk

      before the limitations period expired. The trial court granted the motion to

      dismiss and later denied the Plaintiffs’ motion to correct error.


[2]   The Plaintiffs now appeal. We conclude that the trial court erred in granting

      the City Defendants’ motion to dismiss because the Indiana Trial Rules require

      only that a plaintiff “furnish” a summons contemporaneously with the “filing”

      of a complaint, and there is no indication in the record that the Plaintiffs failed

      to do so here. Ind. Trial Rule 4(B). Consequently, we reverse and remand for

      further proceedings.


                                 Facts and Procedural History
[3]   By way of background, Indiana Trial Rule 3 states,

              A civil action is commenced by filing with the court a complaint
              or such equivalent pleading or document as may be specified by
              statute, by payment of the prescribed filing fee or filing an order
              waiving the filing fee, and, where service of process is required,
              by furnishing to the clerk as many copies of the complaint and
              summons as are necessary.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CT-53 | October 16, 2015   Page 3 of 10
      And Indiana Trial Rule 4(B) states,

              Contemporaneously with the filing of the complaint or
              equivalent pleading, the person seeking service or his attorney
              shall furnish to the clerk as many copies of the complaint and
              summons as are necessary. The clerk shall examine, date, sign,
              and affix his seal to the summons and thereupon issue and
              deliver the papers to the appropriate person for service.


      Our supreme court has held that a civil action is untimely “if the plaintiff files a

      complaint within the applicable statute of limitations but does not tender the

      summons to the clerk within that statutory period.” Ray-Hayes v. Heinamann,

      760 N.E.2d 172, 173 (Ind. 2002), reh’g granted on other grounds, 768 N.E.2d 899.


[4]   Michael was allegedly tased and assaulted by South Bend police and died in

      their custody on July 22, 2012. The Plaintiffs filed a wrongful death complaint

      against the City Defendants and the County Defendants on July 22, 2014, the

      last day of the statutory limitations period. The trial court’s chronological case

      summary (“CCS”) entry for that date states, “Complaint/Equivalent Pleading

      Filed,” and the complaint is file-stamped July 22, 2014. Appellants’ App. at 5,

      16.


[5]   On August 19, 2014, the City Defendants filed a motion to dismiss the

      Plaintiffs’ complaint, presumably under Indiana Trial Rule 12(B)(6) for failure

      to state a claim upon which relief can be granted. To our dismay, the motion




      Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CT-53 | October 16, 2015   Page 4 of 10
      does not appear in the record before us. 2 We presume that it asserts that the

      Plaintiffs’ lawsuit was untimely because the summonses were not “filed” on

      July 22, 2014. The summonses are file-stamped July 30, 2014. City

      Defendants’ App. at 4-6. But the CCS does not state that the summonses were

      furnished to the clerk on that date; it simply states that service was issued.

      Appellants’ App. at 5.


[6]   On October 23, 2014, the trial court held a hearing on the motion to dismiss.

      The Plaintiffs’ counsel appeared by telephone due to illness. When the court

      asked him to respond to the City Defendants’ argument that the summonses

      were untimely “filed,” he said, “I don’t know how to respond because I don’t

      have that in front of me,” and, “I believe that everything was filed at the same

      time.” Tr. at 6, 7. That same day, the trial court issued an order granting the

      City Defendants’ motion to dismiss on the basis that the summonses were

      untimely “filed.” 3 Appellants’ App. at 11.


[7]   Trial Rule 59(C) states that a

               motion to correct error, if any, shall be filed not later than thirty
               (30) days after the entry of a final judgment is noted in the



      2
        Cf. Ind. Appellate Rule 50(A)(2) (stating that appellant’s appendix “shall contain … pleadings and other
      documents from the Clerk’s Record in chronological order that are necessary for resolution of the issues
      raised on appeal”); Ind. Trial Rule 50(A)(3) (stating that appellee’s appendix “may contain additional items
      that are relevant to either issues raised on appeal or on cross-appeal”).
      3
       In the same order, the trial court also granted a motion for judgment on the pleadings filed by the County
      Defendants. The Plaintiffs’ notice of appeal and appellate brief do not mention this ruling, but the County
      Defendants filed an appellees’ brief, apparently out of an abundance of caution.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CT-53 | October 16, 2015            Page 5 of 10
              Chronological Case Summary. A copy of the motion to correct
              error shall be served, when filed, upon the judge before whom the
              case is pending pursuant to Trial Rule 5.


      Trial Rule 5(E) states, “Except as otherwise provided in subparagraph (2)

      hereof, all pleadings and papers subsequent to the complaint which are required

      to be served upon a party shall be filed with the Court either before service or

      within a reasonable period of time thereafter.”


[8]   The CCS indicates that the Plaintiffs filed a motion to correct error on

      November 24, 2014, which was the latest possible date under Trial Rule 59(C).

      The CCS also indicates that a motion to correct error was filed on November

      26, 2014. The appellants’ appendix contains a copy of the motion to correct

      error that is file-stamped November 24, 2014, and states in pertinent part,

              14. Counsel for the “City Defendants” argued both orally, and
              within the written motion to dismiss that T.R. [Trial Rule] 3
              requires that Plaintiffs “file” summons along with “filing” the
              complaint and pay the appropriate filing fee.

              15. This matter was filed by Plaintiffs by certified mail, and
              pursuant to T.R. 3, there were “as many copies of the complaint
              and summons” as were necessary and the proof of mailing are a
              part of the Court’s file.

              16. All necessary documents and filing fees were included in
              one mailing which was received by the clerk of the court on or
              about July 24, 2014.

              17. No other filings were made by Plaintiffs after July 22,
              2014, other than two motions to continue hearings.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CT-53 | October 16, 2015   Page 6 of 10
               18. Counsel for Plaintiffs has spoken to clerks in three
               different counties and has learned that the file stamp on the
               summons signifies the date that the summons and complaint are
               sent out by the clerk’s office.

               19. The file stamp of July 30, 2014 indicates the day that the
               clerk’s office mailed the complaints and summons to the
               respective defendants and not the day that the summonses were
               furnished to the clerk of the Court.

               20. The “City Defendants” and the Court have erred by
               requiring that a plaintiff must “file” the summons rather than
               “furnish” as T.R. 3 requires.


      Appellants’ App. at 41-42.


[9]   The appellants’ appendix also contains an identical copy of the motion to

      correct error, a supporting memorandum, and an affidavit from the Plaintiffs’

      counsel, all of which are file-stamped November 26, 2014. Curiously, the

      appendix also contains an affidavit from the typist who prepared the complaint

      and summonses that is file-stamped November 23, 2014. Id. at 52. The CCS

      does not have an entry for that date. In their response to the motion to correct

      error, the City Defendants argued that the motion was untimely filed on

      November 26. The trial court did not rule on the motion, and thus it was

      deemed denied pursuant to Trial Rule 53.3. 4 This appeal ensued.




      4
        See Ind. Trial Rule 53.3 (“In the event a court fails for forty-five (45) days to set a Motion to Correct Error
      for hearing, or fails to rule on a Motion to Correct Error within thirty (30) days after it was heard or forty-five
      (45) days after it was filed, if no hearing is required, the pending Motion to Correct Error shall be deemed
      denied.”).

      Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CT-53 | October 16, 2015                 Page 7 of 10
                                      Discussion and Decision
[10]   The Plaintiffs contend that the trial court erred in denying their motion to

       correct error and in granting the City Defendants’ motion to dismiss. The City

       Defendants argue that the motion to correct error was untimely and that we

       should not consider the supporting evidence in any event because “affidavits

       may not be used to present evidence the party neglected to offer during the

       proceeding.” Mid-States Aircraft Engines, Inc. v. Mize Co., 467 N.E.2d 1242, 1245

       (Ind. Ct. App. 1984). Assuming without deciding that the City Defendants’

       arguments have merit, 5 we nevertheless conclude that the trial court erred in

       granting their motion to dismiss.


[11]   Resolution of this issue requires interpretation of the Trial Rules, which is a

       question of law that we review de novo. In re Paternity of V.A., 10 N.E.3d 61, 63

       (Ind. Ct. App. 2014). “[A]s with statutes, our objective when construing the

       meaning of a rule is to ascertain and give effect to the intent underlying the

       rule.” Carter-McMahon v. McMahon, 815 N.E.2d 170, 175 (Ind. Ct. App. 2004).

       The Trial Rules are to be construed together and harmoniously if possible. Id.

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

       interpretation. Moreover, in construing a rule, it is just as important to




       5
         According to the Plaintiffs’ counsel, both copies of the motion to correct error and the accompanying
       documents “were all mailed in the same envelope,” and “[o]ne might assume that the documents which were
       file stamped November 26, 2014 were perhaps the documents which went to [the trial court] prior to being
       received at the clerk’s office.” Appellants’ Br. at 5.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CT-53 | October 16, 2015       Page 8 of 10
       recognize what it does not say as it is to recognize what it does say.” Id.

       (citation omitted).


[12]   To reiterate, Trial Rule 3 provides that a civil action is commenced by “filing …

       a complaint,” by payment of the filing fee, and, “where service of process is

       required, by furnishing to the clerk as many copies of the complaint and

       summons as are necessary.” (Emphases added.) And Trial Rule 4(B) provides

       that, “[c]ontemporaneously with the filing of the complaint,” an attorney

       seeking service “shall furnish to the clerk as many copies of the complaint and

       summons as are necessary.” (Emphases added.) These rules do not require

       that a summons be filed; they require only that it be furnished to the clerk with

       the complaint. In this case, the CCS does not indicate when the summonses

       were furnished to the clerk; it indicates only when the complaint was filed (July

       22) and when service was issued (July 30). 6 Notably, Trial Rule 4(B) does not

       say that service must be issued on the same day that the summons is furnished;

       it says only that the clerk “shall examine, date, sign, and affix his seal to the

       summons and thereupon issue and deliver the papers to the appropriate person

       for service.”


[13]   “[I]t is well settled that the trial court speaks through its CCS or docket[.]” City

       of Indianapolis v. Hicks, 932 N.E.2d 227, 233 (Ind. Ct. App. 2010), trans. denied




       6
         Trial Rule 77(B) states, “Notation of judicial events in the Chronological Case Summary shall be made
       promptly, and shall set forth the date of the event and briefly define any documents, orders, rulings, or
       judgments filed or entered in the case.” Because a summons is furnished, rather than filed, this might explain
       the omission.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CT-53 | October 16, 2015            Page 9 of 10
       (2011). Here, the CCS is silent as to when the summonses were furnished to

       the clerk, and there is no CCS entry evidencing the submission of any papers to

       the clerk by the Plaintiffs other than the July 22, 2014 filing. If, as the City

       Defendants assert, the summonses were not furnished with the complaint, there

       is no notation to this effect. As the party seeking dismissal, the City Defendants

       had the burden of establishing that the summonses were furnished after the

       statute of limitations expired, and on this record they failed to carry that

       burden. 7 Accordingly, we reverse the trial court’s grant of the City Defendants’

       motion to dismiss and remand for further proceedings.


[14]   Reversed and remanded.


       May, J., and Bradford, J., concur.




       7
         Because the clerk of the circuit court is responsible for maintaining the CCS pursuant to Indiana Trial Rule
       77(B), and because a defendant has the burden of establishing sufficient grounds for dismissal, we reject the
       City Defendants’ suggestion that a plaintiff must bear the burden of proving something that the clerk did not
       record. It is unfortunate that there is no evidence from the clerk’s office regarding when it received the
       summonses and its policies and procedures for recording such events in the CCS.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CT-53 | October 16, 2015            Page 10 of 10
