MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Aug 07 2019, 7:35 am
regarded as precedent or cited before any                                     CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court


estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS                                 ATTORNEYS FOR APPELLEE
Danny E. Glass                                           L. Katherine Boren
John J. Kreighbaum                                       Allyson R. Breeden
Evansville, Indiana                                      Evansville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

June Russell and Betty Stevens,                          August 7, 2019
Appellants/Cross-                                        Court of Appeals Case No.
                                                         18A-CT-2299
Appellees/Defendants,                                    Appeal from the Vanderburgh
                                                         Circuit Court
        v.
                                                         The Honorable Kelli E. Fink,
                                                         Magistrate Judge
Anh Bui,
                                                         Trial Court Cause No.
Appellee/Cross-Appellant/Plaintiff,                      82C01-1701-CT-500




Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CT-2299 | August 7, 2019                    Page 1 of 9
                                             Case Summary
[1]   June Russell and Betty Stevens (collectively “Appellants”) appeal the trial

      court’s denial of their motion for relief from judgment/order in litigation

      brought against them by Anh Bui. We affirm.


                                                     Issue
[2]   Appellants raise three issues, which we consolidate and restate as whether the

      trial court properly denied their motion for relief from judgment/order.


                                                     Facts
[3]   On February 7, 2015, Stevens and Russell were in Russell’s vehicle with

      Stevens driving, and they were involved in a collision with Bui’s vehicle. The

      officer responding to the collision did not create a police report, but he

      suggested Bui take a picture of Stevens’ driver’s license.


[4]   On January 27, 2017, Bui filed a complaint against Russell alleging negligence.

      On March 27, 2017, Russell filed an answer and affirmative defenses denying

      that she was driving the vehicle and contending that Bui had failed to name the

      proper party as a defendant.


[5]   On May 19, 2017, Bui filed a motion for leave to file an amended complaint to,

      in part, add Stevens as a defendant. The motion stated: “Plaintiff’s counsel was

      unaware prior to Defendant Russell’s filing of her Answer that Russell was not

      the party driving the vehicle that caused the Plaintiff’s injuries.” Appellants’

      App. Vol. II p. 23. The motion also provided: “This motion is timely made

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2299 | August 7, 2019   Page 2 of 9
      pursuant to Indiana Trial Rule 15 as it is filed within 120 days of

      commencement of the action. This motion is in good faith and not for

      hindrance or delay and the interests of justice allow for the filing of such

      Amended Complaint.” Id. at 24. Russell objected to the motion. In a reply to

      Russell’s objection, Bui contended that, when her counsel gathered all

      documents regarding the accident to prepare the complaint, none of the

      documents mentioned a possible driver other than Russell. After a hearing, on

      June 27, 2017, the trial court granted Bui’s motion to amend the complaint to

      add Stevens as a defendant.


[6]   On March 29, 2018, Appellants filed a “Motion for Relief From

      Judgment/Order” pursuant to Indiana Trial Rule 60(B)(2). Id. at 74.

      Appellants argued that, during discovery, Bui produced a photograph of

      Stevens’ driver’s license, which Bui took on the day of the accident. Appellants

      contended that Bui “should not be permitted to take advantage of the provisions

      of Trial Rule 15 when she possessed all the information she needed to file suit

      against the driver of the car and not the owner.” Id. at 79. In response, Bui

      argued that she “did not read the name on the driver’s license on the day of the

      collision” and that the correspondence she received after the collision

      referenced Russell, not Stevens.


[7]   After a hearing on the matter, the trial court denied Appellants’ motion for

      relief from judgment/order. The trial court then granted a motion for

      certification of the order for interlocutory appeal, and this Court accepted

      jurisdiction over the appeal pursuant to Indiana Appellate Rule 14(B).

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2299 | August 7, 2019   Page 3 of 9
                                                     Analysis
[8]   Appellants argue that the trial court erred by denying their motion for relief

      from judgment/order under Indiana Trial Rule 60(B)(2). We review “the

      denial of a Rule 60(B) motion for an abuse of discretion.” Alves v. Old Nat.

      Bank, 929 N.E.2d 892, 895 (Ind. Ct. App. 2010)). “An abuse of discretion

      occurs when the decision is clearly against the logic and effect of the facts and

      circumstances before it, or if the trial court has misinterpreted the law.” Coles v.

      McDaniel, 117 N.E.3d 573, 576 (Ind. Ct. App. 2018). “When we review a trial

      court’s decision, we will not reweigh the evidence.” Id.


[9]   Indiana Trial Rule 60(B)(2) provides: “On motion and upon such terms as are

      just the court may relieve a party or his legal representative from a judgment . . .

      for . . . (2) any ground for a motion to correct error, including without

      limitation newly discovered evidence, which by due diligence could not have

      been discovered in time to move for a motion to correct errors under Rule 59.” 1




      1
        Although Trial Rule 60(B) applies to a “judgment,” our courts have held that the judgment is not required
      to be a “final judgment.” See Mitchell v. 10th & The Bypass, LLC, 3 N.E.3d 967 (Ind. 2014); Celadon Trucking
      Servs., Inc. v. United Equip. Leasing, LLC, 10 N.E.3d 91, 95 (Ind. Ct. App. 2014), trans. denied. The term
      “judgment” is defined in Trial Rule 54(A) as including “a decree and any order from which an appeal lies.”
      Under Indiana Trial Rule 60(C), a ruling denying or granting relief under Rule 60(B) “shall be deemed a final
      judgment, and an appeal may be taken therefrom as in the case of a judgment.”
      Despite Trial Rule 60(C), Appellants requested and were granted an interlocutory appeal pursuant to Indiana
      Appellate Rule 14(B). On cross-appeal, Bui argues that Appellants’ appeal was untimely because they did
      not appeal within thirty days of the Rule 60(B) ruling and instead requested certification of the order for
      interlocutory appeal. Our motions panel considered Bui’s arguments and allowed the interlocutory appeal.
      We have the “inherent authority to reconsider any decision while an appeal remains in fieri,” but we are
      “reluctant to overrule orders decided by the motions panel.” Simon v. Simon, 957 N.E.2d 980, 987 (Ind. Ct.
      App. 2011). Under these circumstances, we decline to reconsider the motions panel’s decision, and we will
      address Appellants’ arguments.

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2299 | August 7, 2019                    Page 4 of 9
       Appellants contend that the trial court should have granted their motion for

       relief from judgment/order because, based on the newly discovered photograph

       of Stevens’ driver’s license, Bui’s claims against Stevens should not have related

       back under Trial Rule 15(C).


[10]   Bui’s claims were subject to a two-year statute of limitations, and Bui had until

       February 7, 2017, to file her claim. See Ind. Code § 34-11-2-4. Bui filed her

       original complaint against Russell within the statute of limitations on January

       27, 2017. Bui filed her motion to amend the complaint to add Stevens on May

       19, 2017, 101 days after the statute of limitations ran and 112 days after her

       initial complaint.


[11]   “Under Trial Rule 15(C), a plaintiff may add an entirely new defendant after

       the statute of limitations has run only after demonstrating that the conditions of

       the rule governing relation back of amendments have been satisfied.” Brown v.

       Vanderburgh Cty. Sheriff’s Dep’t, 85 N.E.3d 866, 869 (Ind. Ct. App. 2017). “The

       party who seeks the benefit of the relation back doctrine bears the burden of

       proving that the conditions of Trial Rule 15(C) are met.” Id. at 870. Indiana

       Trial Rule 15(C) provides:


               Whenever the claim or defense asserted in the amended pleading
               arose out of the conduct, transaction, or occurrence set forth or
               attempted to be set forth in the original pleading, the amendment
               relates back to the date of the original pleading. An amendment
               changing the party against whom a claim is asserted relates back
               if the foregoing provision is satisfied and, within one hundred
               and twenty (120) days of commencement of the action, the party
               to be brought in by amendment:

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2299 | August 7, 2019   Page 5 of 9
               (1) has received such notice of the institution of the action that he
               will not be prejudiced in maintaining his defense on the merits;
               and


               (2) knew or should have known that but for a mistake concerning
               the identity of the proper party, the action would have been
               brought against him.


[12]   Thus, in order for an amended complaint changing the party against whom the

       claim is brought to relate back, it must meet the following three requirements:

       (1) the claim in the amended complaint has to arise out of the conduct,

       transaction, or occurrence set forth or attempted to be set forth in the original

       complaint; (2) within 120 days after the commencement of the action, the party

       to be brought into the action must have received notice of the institution of the

       action so that the party will not be prejudiced in maintaining a defense on the

       merits; and (3) within 120 days after commencement of the action, the party

       knew or should have known that, absent a mistake concerning the identity of

       the proper party, the action would have been brought against the party to be

       brought in by the amendment. Sinks v. Caughey, 890 N.E.2d 34, 40 (Ind. Ct.

       App. 2008).


[13]   Indisputably, the claim against Stevens arose out of the same incident set forth

       in the original complaint. Additionally, the claim against Stevens was brought

       within 120 days of the commencement of the action. Appellants’ only

       argument on appeal is that Bui’s failure to name Stevens in the initial complaint

       was not due to a “mistake”; rather, Appellants contend the rule did not intend

       to cover “careless or inattentive” actions. Appellants’ Br. p. 12. Appellants
       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2299 | August 7, 2019   Page 6 of 9
       argue that Bui had a photograph of Stevens’ driver’s license on the day of the

       incident and, accordingly, Bui’s motion to amend her complaint to add Stevens

       should have been denied.


[14]   In support of their argument, Appellants rely, in part, on Green ex rel. Estate of

       Webster v. Hous. Auth. of City of Gary, 10 N.E.3d 518 (Ind. Ct. App. 2014). 2 In

       Green, the plaintiff amended her complaint to add two defendants after the

       statute of limitations had run. The trial court granted a motion to dismiss the

       new count. On appeal, we noted that the two new defendants had been known

       since the day of the incident. We held:


                Rule 15(C) allows relation back for an honest error that results in
                a mistake of identity, and was “not intended to save parties from
                the legal or tactical choices made by their lawyers.” Porter [Cty.]
                Sheriff Dept. v. Guzorek, 857 N.E.2d 363, 366 (Ind. 2006). Under
                Rule 15(C), the plaintiff must establish that the requirements are
                present for Trial Rule 15(C) to apply. Webster Green has not
                done so. The trial court correctly determined that Webster Green
                did not fulfill the requirements of Trial Rule 15(C) and that her
                claims against Blood and Starks are barred by the statute of
                limitations.


       Green, 10 N.E.3d at 522.




       2
         Appellants also rely on the dissent in Porter Cty. Sheriff Dep’t v. Guzorek, 857 N.E.2d 363 (Ind. 2006), rather
       than the majority opinion.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2299 | August 7, 2019                         Page 7 of 9
[15]   We conclude that Green is distinguishable here. Bui submitted an affidavit,

       which provided:


               .....


               2. I took a picture of a driver’s license with my phone on the day
               of the accident at the suggestion of the law enforcement officer. I
               did not read the name on the driver’s license.


               3. I did not know a person by the name of Betty Stevens was the
               driver of the vehicle that hit mine until after I filed a lawsuit.


               4. Following the accident and through the date I decided to file
               suit regarding the accident, no correspondence I received from
               any source regarding the accident mentioned Betty Stevens’
               name or the fact that she was the driver. All of the
               correspondence had the name of June Russell.


               5. It was my honest belief that June Russell was the driver.


       Appellants’ App. Vol. II p. 90.


[16]   Unlike Green, here, Bui submitted evidence that the failure to join Stevens was

       an honest error rather than a deliberate strategy. Our Supreme Court has held:

       “‘The ‘mistake’ condition does not isolate a specific type or form of error in

       identifying parties, but rather is concerned fundamentally with the new party’s

       awareness that failure to join it was error rather than a deliberate strategy.’”

       Guzorek, 857 N.E.2d at 371 (quoting In re Integrated Res. Real Estate Ltd. P’ship

       Sec. Litig., 815 F.Supp. 620, 644 (S.D.N.Y. 1993)), reh’g denied. Under such



       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2299 | August 7, 2019   Page 8 of 9
       circumstances, Trial Rule 15(C) applies, and the trial court’s denial of

       Appellants’ motion was not an abuse of discretion.


                                                 Conclusion
[17]   The trial court did not abuse its discretion by denying Appellants’ motion. We

       affirm.


[18]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2299 | August 7, 2019   Page 9 of 9
