                                                                                      FILED
                                                                                  Apr 30 2018, 7:45 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEES
      Stacy L. Kelley                                            Aimée Rivera Cole
      Glaser & Ebbs                                              Travelers Staff Counsel Indiana
      Indianapolis, Indiana                                      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Pamela Webb,                                               April 30, 2018
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 29A05-1710-CT-2420
              v.                                                 Appeal from the
                                                                 Hamilton Superior Court
      City of Carmel, Carmel Clay                                The Honorable
      Parks Building Corporation, and                            William J. Hughes, Judge
      Carmel/Clay Board of Parks &                               The Honorable
      Recreation,                                                William P. Greenaway, Magistrate

      Appellees-Defendants.                                      Trial Court Cause No.
                                                                 29D03-1605-CT-4530



      Kirsch, Judge.


[1]   Pamela Webb (“Webb”) appeals the trial court’s grant of summary judgment in

      favor of City of Carmel (“Carmel”), Carmel Clay Parks Building Corporation

      (“the Corporation”), and Carmel/Clay Board of Parks & Recreation (“the Park

      Board”) (collectively, “the Appellees”) in her action against the Appellees for

      negligence. She raises the following restated issues for our review on appeal:

      Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018                       Page 1 of 23
              I.       Whether the trial court abused its discretion in granting the
                       Appellees’ motion to strike portions of Webb’s response in
                       opposition to the motion for summary judgment; and


              II.      Whether the trial court erred in granting summary
                       judgment in favor of the Appellees.


[2]   We affirm.


                                  Facts and Procedural History
[3]   This case arises from an incident that occurred on June 20, 2014 at the Monon

      Community Center located at 1235 Central Park Drive East, Carmel, Indiana

      (“the Property”). Webb alleges that as she was walking down the gymnasium

      bleacher steps, the bottom step of the bleachers slid causing her to fall to the

      floor. Webb contends that the Property is “owned, operated, managed and/or

      maintained by” the Appellees. Appellant’s App. Vol. II at 169. Webb alleges that

      the Appellees were negligent for failure to keep the entry/exit of the bleacher

      steps in a reasonably safe condition, failing to warn guests of the unsafe

      condition of the steps, failure to exercise reasonable care in the design,

      operation and maintenance of the steps, failure to provide adequate lighting,

      and/or failure to design a safe entryway for guests. Id. at 169-70.


[4]   The Corporation is the sole owner of the Property. Id. at 81-108. The

      Corporation and Clay Township entered into a Sublease and Management

      Agreement with the Park Board granting the Park Board the exclusive right,

      power, and authority to access, occupy, improve, and operate the

      approximately 161 acres comprising Central Park in Carmel, Indiana, which
      Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018    Page 2 of 23
      includes the Property. Id. at 55-61, 141. Williams and Associates, Ltd.

      designed the Property. Id. at 141. Neither the Corporation nor Carmel

      developed, constructed, operated, designed, or maintained the Property.

      Appellees’ App. Vol. II at 92. Carmel never owned the Property. Id. at 181.

      Carmel has no knowledge of the inspection practices of the Property. Id. at

      183. The Park Board operates as a political subdivision on its own behalf and,

      pursuant to Article IV, Section 4.2(i) of the Interlocal Agreement,1 has the right

      to sue and be sued by or in its legal name as the “Carmel/Clay Board of Parks

      and Recreation” with service of process being had upon the President of the

      Board. Id. at 91, 96-126.


[5]   On or about July 7, 2014, Webb served the Mayor of Carmel with a Tort Claim

      Notice. Carmel acknowledged receipt of Webb’s Tort Claim Notice and

      referred the notice to their liability insurance carrier, Travelers Insurance

      (“Travelers”), and Travelers subsequently requested further documentation of

      Webb’s medical records and billing statements. On May 25, 2016, almost two

      years after filing the Tort Claim Notice, Webb filed a Complaint for Damages




      1
        “Generally, ‘Interlocal Agreements,’ also referred to as ‘Interlocal Cooperation Agreements,’ are formal
      vehicles through which municipalities or political subdivisions may eliminate barriers imposed by
      jurisdictional lines in order to offer public services more efficiently.” City of Carmel v. Steele, 865 N.E.2d 612,
      620 (Ind. 2007) (citing Osborne M. Reynolds, Jr., Local Government Law 43 (1982); see also Ind. Code § 36-1-7-
      1 to -15 (providing for Interlocal Cooperation Agreements)). The primary types of agreements are service
      contracts, under which “one local government provides services to another, and joint enterprise contracts,
      under which two or more local units jointly undertake a project.” Id.



      Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018                             Page 3 of 23
      against Carmel and the Indiana Parks and Recreation Association. 2 On June

      16, 2016, counsel for Carmel advised counsel for Webb that Carmel did not

      have any ownership interest in the Property. Id. at 187. On June 20, 2016,

      counsel for the City provided counsel for Webb with documents, confirming

      that the owner of the Property was the Corporation and the manager of the

      Property was the Park Board. Id. On September 13, 2016, Carmel served its

      responses to Webb’s discovery, which included the same documents provided

      on June 20, 2016 by Carmel’s counsel showing the Corporation as the owner

      and the Park Board as the operator of the Property and the lack of any role by

      the City in the development, construction, ownership, operation, design or

      maintenance thereof. Id. at 179-85, 188-94. Carmel filed a motion for

      summary judgment on November 4, 2016 on the basis that it did not own,

      manage, or control the Property. Id. at 6-14.


[6]   On December 28, 2016, Webb filed a motion seeking leave to file an amended

      complaint naming the Corporation and the Park Board as defendants (“the

      Amended Complaint”). Along with the motion seeking leave to file the

      Amended Complaint, Webb filed a proposed summons for both the

      Corporation and for the Park Board. The trial court made a notation on the

      summonses that service was to be done by the attorney. Id. at 25-28. Webb’s

      motion was granted on December 29, 2016. The Amended Complaint was




      2
       Indiana Park & Recreation Association was later dismissed from the action through a “Stipulation of
      Dismissal” filed by the parties on March 28, 2017. Appellees’ App. Vol. II at 35.

      Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018                      Page 4 of 23
      filed December 30, 2016. The Park Board was not served with the summons or

      the Amended Complaint, nor was it served with a Notice of Tort Claim. Id. at

      92. The Corporation was not served with the summons or the Amended

      Complaint. Id. at 195. On January 10, 2017, the trial court ordered that

      Carmel’s motion for summary judgment was rendered moot by the filing of the

      Amended Complaint. On June 6, 2017, the Appellees filed a motion for

      summary judgment on the basis that the complaint against the Corporation and

      the Park Board was not filed within the statute of limitation and on the basis

      that Carmel was not the owner or operator of the Property, and Webb later filed

      her response in opposition to the summary judgment motion and designated

      evidence. Id. at 36-53, 196-212. The Appellees filed their reply to Webb’s

      response as well as a motion to strike various purported representations of fact

      contained in Webb’s response in opposition to the Appellees’ motion for

      summary judgment. A hearing was held on the Appellees’ motion for summary

      judgment and the motion to strike, and on September 25, 2017, the trial court

      entered an order granting the Appellees’ motion to strike and motion for

      summary judgment. Appellant’s App. Vol. II at 12-18. Webb now appeals.


                                      Discussion and Decision

                                           I.       Motion to Strike
[7]   Webb initially contends that the trial court abused its discretion in granting the

      Appellees’ motion to strike several statements contained in her response in




      Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018   Page 5 of 23
      opposition to the Appellees’ motion for summary judgment. 3 A trial court has

      broad discretion in ruling on the admissibility of evidence. Morris v. Crain, 71

      N.E.3d 871, 877 (Ind. Ct. App. 2017). Such discretion extends to rulings on

      motions to strike affidavits on the grounds that they fail to comply with the

      summary judgment rules. Id. “We will determine that a trial court has abused

      its discretion when the trial court’s decision is clearly against the logic and effect

      of the facts and circumstances before it.” Id.4


[8]   Affidavits in support of or in opposition to a motion for summary judgment are

      governed by Indiana Trial Rule 56(E), which provides, in relevant part:




      3
        The Appellees assert that the trial court’s order granting their motion to strike and motion for summary
      judgment should be affirmed on the basis that Webb failed to include necessary documents in her Appellant’s
      Appendix. The Appellees note that Webb’s appendix does not contain the Appellees’ motion for summary
      judgment and designated evidence in support of the motion, nor does it contain Webb’s response in
      opposition to the summary judgment motion, which all are documents necessary in determining the issues
      raised on appeal. The purpose of the appendix in civil appeals is to provide us “only those parts of the record
      on appeal that are necessary for the Court to decide the issues presented.” Ind. Appellate Rule 50(A)(1). The
      appellant’s appendix shall contain . . . copies of the following documents . . . (f) pleadings and other
      documents from the Clerk’s Record in chronological order that are necessary for resolution of the issues
      raised on appeal.” App. R. 50(A)(2)(f). Therefore, “when appealing the grant or denial of a motion for
      summary judgment, it is not sufficient for the appellant to include in the appendix only those documents
      designated by it to the trial court.” Kelly v. Levandoski, 825 N.E.2d 850, 856 (Ind. Ct. App. 2005) (quotation
      omitted), trans. denied. Rather, appellants should include in their appellant’s appendix all documents relating
      to the disposition of the motion for summary judgment, including any documents that the appellee
      designated. Id. Although an appellant’s claim may be deemed waived on appeal for failure to include
      documents designated to the trial court in its appendix, we prefer to decide issues on their merits when
      possible. Id. (citing Hughes v. King, 808 N.E.2d 146, 148 (Ind. Ct. App. 2004) (dismissing appeal of grant of
      summary judgment when appellant failed to include all designated evidence in the appendix)). Despite
      Webb’s failure to provide the Appellees’ motion for summary judgment and the designated evidence
      supporting the motion and her own response in opposition to the summary judgment motion, the Appellees
      provided the documents in their Appellees’ Appendix. Accordingly, we may decide the issue on the merits.
      4
        Webb argues for the first time on appeal that the Appellees’ motion to strike was not permissible under the
      Indiana Trial Rules. Issues that are not raised before the trial court on summary judgment cannot be argued
      for the first time on appeal and are therefore waived. Hrezo v. City of Lawrenceburg, 81 N.E.3d 1146, 1156-57
      (Ind. Ct. App. 2017). Webb has, therefore, waived this issue because she is raising it for the first time on
      appeal.

      Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018                         Page 6 of 23
       “Supporting and opposing affidavits shall be made on personal knowledge,

       shall set forth such facts as would be admissible in evidence and shall show

       affirmatively that the affiant is competent to testify to the matters stated

       therein.” The requirements of Trial Rule 56(E) are mandatory; hence, a court

       considering a motion for summary judgment should disregard inadmissible

       information contained in supporting or opposing affidavits. Reed v. City of

       Evansville, 956 N.E.2d 684, 695-96 (Ind. Ct. App. 2011), trans. denied. Further,

       the party offering the affidavit into evidence bears the burden of establishing its

       admissibility. Id. at 696. A party may not rest on the mere allegations of his or

       her pleadings. T.R. 56(E). Unsupported factual assertions or bare factual

       allegations should be excluded from consideration.


[9]    In their motion to strike, the Appellees sought to have six statements stricken

       from Webb’s response in opposition to the Appellees’ motion for summary

       judgment, and the trial court granted the motion to strike as to all six

       statements.


[10]   First, the Appellees moved to strike the following statements: (1)“The City of

       Carmel approved and acknowledged receipt of Ms. Webb’s Tort Claim Notice

       and referred the notice to their liability insurance carrier, Travelers, to handle

       Ms. Webb’s personal injury claim and requested further documentation of Ms.

       Webb’s medical records and billing statements”; and (2) “It is undisputed that

       the City of Carmel approved and acknowledged receipt of Plaintiff’s Tort Claim

       Notice.” Appellant’s App. Vol. II at 184-185. The trial court granted the motion

       in part by striking the word “approved” from each sentence reasoning that no

       Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018   Page 7 of 23
       properly designated evidence supported the assertion that Carmel “approved”

       Webb’s Tort Claim Notice. Id. at 13. Indiana Code section 34-13-3-11

       provides that a claim is denied if the governmental entity fails to approve the

       claim in its entirety within ninety days, unless the parties have reached a

       settlement before the expiration of that period. Webb argues that the repeated

       requests by Travelers for her medical records and billing statements “suggests”

       that Carmel approved her claim and requested the documents to assess

       damages in preparation for settlement negotiations. Appellant’s Br. at 19. This

       argument acknowledges that settlement discussions had not even begun. While

       Webb relies upon the Tort Claim Notice, the certified mail return receipt of the

       Tort Claim Notice, and correspondence related to the routine request by

       Travelers for Webb’s medical records and itemized billing statements, id. at 19,

       those documents merely reflect a request for information and in no way support

       her argument that her Tort Claim Notice was approved by anyone. Appellant’s

       App. Vol. II at 155-57. On the contrary, by operation of law pursuant to Indiana

       Code section 34-13-3-11, the Tort Claim Notice was deemed denied when

       Carmel failed to approve the claim in its entirety within ninety days and no

       settlement was reached. The trial court did not abuse its discretion in striking

       this portion of the statements as no evidence was presented to support it.


[11]   Second, the trial court granted the Appellees’ motion to strike the following

       statements: (1) “The Interlocal Cooperation Agreement verified that on June

       20, 2014, Defendant City of Carmel owned, operated, managed, and/or

       maintained the Monon Community Center pursuant to the Interlocal


       Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018   Page 8 of 23
Cooperation Agreement”; and (2) “It is undisputed that Defendant City of

Carmel through the Interlocal Cooperation Agreement operated, managed and

maintained the Monon Community Center located at 1235 Central Park Drive

East, Carmel, IN as a recreation, fitness and nature center for the City of

Carmel.” Id. at 13-14. In her challenge to the trial court’s striking of these

statements, Webb relies solely on her original complaint and on the Amended

Complaint as support for those statements. Appellant’s Br. at 20. However,

Webb had the burden to present sufficient evidence to demonstrate that a

genuine issue of fact existed, and the factual allegations in her complaints were

insufficient to meet this burden. See Abbott v. Bates, 670 N.E.2d 916, 923 (Ind.

Ct. App. 1996) (stating that when the moving party files materials establishing

the lack of any issues of material fact, the nonmovant may not rely upon his

pleadings, but must bring forth specific facts, by affidavit or otherwise, to show

a genuine issue for trial). Webb also asserts for the first time on appeal that the

Interlocal Agreement fails to reference, mention, or identify the Property.

Therefore, this argument is waived since it is being raised for the first time on

appeal. Hrezo v. City of Lawrenceburg, 81 N.E.3d 1146, 1156-57 (Ind. Ct. App.

2017). Additionally, this argument directly contradicts the very statements

Webb challenges as being improperly stricken by the trial court. Webb urges

that the Interlocal Agreement fails to reference, mention, or identify the

Property, so it cannot logically follow that the Interlocal Agreement also

verified that Carmel owned, operated, managed, and/or maintained the

Property. Therefore, the trial court correctly determined that these statements


Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018   Page 9 of 23
       were not supported by any properly designated evidence, and it did not abuse

       its discretion when it struck them.


[12]   Third, the trial court granted the Appellees’ motion to strike the following

       statement, “It was not until November 4, 2016 when Defendant City of Carmel

       filed a Motion for Summary Judgment arguing and identifying additional

       parties who may be necessary for proper adjudication of Plaintiff’s claims.”

       Appellant’s App. Vol. II at 15-16. In doing so, the trial court held that this

       statement was contradicted by evidence that was already before the trial court,

       reasoning that the Appellees’ designated evidence showed: (1) on May 25,

       2016, Webb filed a complaint against Carmel, and on June 16, 2016, counsel

       for Carmel advised Webb that Carmel did not have any ownership interest in

       the Property; (2) on June 20, 2016, Carmel’s counsel provided Webb with

       documents to confirm the owner and manager of the Property; (3) on

       September 13, 2016, Carmel served its responses to Webb’s discovery, which

       included the same source documents provided on June 20, 2016. Id. In

       challenging the striking of this statement, Webb makes no argument or cites to

       any facts to support her contention that it was not until November 4, 2016

       when she learned of the additional parties necessary for the adjudication of her

       claims. Instead, she again cites only to the Amended Complaint, in which she

       alleges that Carmel owns the Property. The nonmovant may not rest upon the

       allegations or denials of her pleadings, but must respond with affidavits or other

       evidence setting forth specific facts showing there is a genuine issue in dispute.

       Abbott, 670 N.E.2d at 923. Thus, Webb failed to present any evidence beyond


       Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018   Page 10 of 23
       her complaint and fails to offer any argument to support her claim that she did

       not learn of the parties necessary for proper adjudication until November 4,

       2016, when, in fact, the evidence clearly showed that she was made aware of

       this information as early as June 16, 2016. The trial court properly granted the

       motion to strike.


[13]   Fourth, the trial court granted the Appellees’ motion to strike Webb’s statement

       “All remaining Defendants have the same insurance carrier, Travelers,” holding

       that this assertion was not supported by any properly designated evidence

       before the trial court. Appellant’s App. Vol. II at 16. Webb contends that it “is

       disingenuous, misleading and a misrepresentation for defense counsel to even

       suggest that all remaining defendants do not have the same insurance carrier”

       because all of the defendants are represented by an attorney from Travelers Staff

       Counsel Indiana. Appellant’s Br. At 22. There is nothing in the record to

       support Webb’s claim that parties represented by the same attorney must

       therefore also be represented by the same insurance carrier. Therefore, the trial

       court did not abuse its discretion when it granted the Appellees’ motion to

       strike.


[14]   Fifth, the trial court granted Appellees’ Motion to Strike the statement

       “Defendants[’] Interlocal Agreement is a private agreement between the

       Defendants. The public, including Plaintiff, were not privy to any of the

       relationships and/or agreements between the Defendants and thereby not privy

       to any other potential liable/responsible parties until after litigation commenced

       despite the City of Carmel having received, approved and acknowledged

       Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018   Page 11 of 23
       Plaintiff’s Tort Claim Notice on or about July 7, 2014.” Appellant’s App. Vol. II

       at 16-17. In granting the motion to strike, the trial court held that the Interlocal

       Agreement is a public record and was filed with the Hamilton County Recorder

       on July 31, 2002. Id. Webb argues that this finding was not sufficient grounds

       to strike the statement. Appellant’s Br. at 23. However, the stamp on the first

       page of the Interlocal Agreement is proof that it was filed for record on July 31,

       2002. Appellant’s App. Vol. II at 31. Furthermore, the Interlocal Agreement was

       provided by Carmel to Webb within the statute of limitations and more than six

       months prior to the filing of the Amended Complaint. Id. at 187; Appellees’ App.

       Vol. II at 187. The trial court did not abuse its discretion in granting the motion

       to strike as to these statements.


[15]   Lastly, the trial court granted the Appellees’ motion to strike the statement,

       “Defendant’s motion fails to designate any affidavits or other admissible

       evidence in support of the argument that the City of Carmel did not own,

       operate, manage and/or maintain the Monon Community Center on June 20,

       2014.” Appellant’s App. Vol. II at 6-7. In doing so, the trial court noted that the

       Appellees provided the following evidence of ownership and management of

       the Monon Community Center: (1) Certified Lease Agreement and Option to

       Purchase between Clay Township and the Corporation; (2) the affidavit of

       Mark Westermeier, who oversaw the operations of the Carmel Clay

       Department of Parks and Recreation on behalf of the Park Board; (3) the

       Interlocal Agreement between Carmel and the Township; (4) Sublease and

       Management Agreement between the Township, the Corporation, and the Park


       Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018   Page 12 of 23
       Board; (5) Carmel’s verified responses to Webb’s interrogatories; and (6)

       Carmel’s responses to Webb’s Request for Production. Id. at 17-18. Webb

       argues that the trial court erred in striking this statement but does not offer any

       factual or legal citation for her argument and, instead, solely relies on her

       complaint and the Amended Complaint which is not sufficient to defeat a

       motion for summary judgment. Abbott, 670 N.E.2d at 923. We, therefore,

       conclude that the trial court properly struck this statement and did not abuse its

       discretion in granting the Appellees’ motion to strike.


                                         II.      Summary Judgment
[16]   When reviewing the grant of summary judgment, our standard of review is the

       same as that of the trial court. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d

       1167, 1173 (Ind. Ct. App. 2012) (citing Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of

       Ind., Inc., 832 N.E.2d 559, 562 (Ind. Ct. App. 2005)), trans. denied. We stand in

       the shoes of the trial court and apply a de novo standard of review. Id. (citing

       Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind. Ct. App. 2006)). Our

       review of a summary judgment motion is limited to those materials designated

       to the trial court. Ind. Trial Rule 56(H); Robson v. Tex. E. Corp., 833 N.E.2d

       461, 466 (Ind. Ct. App. 2005), trans. denied. Summary judgment is appropriate

       only where the designated evidence shows there are no genuine issues of

       material fact and the moving party is entitled to judgment as a matter of law.

       T.R. 56(C). For summary judgment purposes, a fact is “material” if it bears on

       the ultimate resolution of relevant issues. FLM, 973 N.E.2d at 1173. We view

       the pleadings and designated materials in the light most favorable to the non-

       Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018   Page 13 of 23
       moving party. Id. Additionally, all facts and reasonable inferences from those

       facts are construed in favor of the non-moving party. Id. (citing Troxel Equip.

       Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct. App. 2005), trans.

       denied).


[17]   A trial court’s grant of summary judgment is clothed with a presumption of

       validity, and the party who lost in the trial court has the burden of

       demonstrating that the grant of summary judgment was erroneous. Henderson v.

       Reid Hosp. and Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans.

       denied. Where a trial court enters specific findings and conclusions, they offer

       insight into the rationale for the trial court’s judgment and facilitate appellate

       review, but are not binding upon this court. Id. We will affirm upon any

       theory or basis supported by the designated materials. Id. When a trial court

       grants summary judgment, we carefully scrutinize that determination to ensure

       that a party was not improperly prevented from having his or her day in court.

       Id.


                                   A. The Corporation and the Park Board

[18]   Webb argues that the trial court erred when it found that her claims against the

       Corporation and the Park Board were not timely filed, and it granted summary

       judgment in favor of the two parties on that basis. Initially, she asserts the issue

       of whether the Amended Complaint related back is moot because the trial court

       granted her motion for leave to amend her complaint on December 30, 2016,

       presumably considering her contentions supporting the filing of the Amended

       Complaint, and the Appellees did not object at that time. Webb also contends
       Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018   Page 14 of 23
       that the Amended Complaint, which named the Corporation and the Park

       Board as defendants, was timely filed and related back to the date the original

       complaint was filed pursuant to Indiana Trial Rule 15. Webb maintains that

       she met all of the requirements of Trial Rule 15(C) because the Amended

       Complaint alleged identical contentions as the original complaint and merely

       added parties identified by Carmel as being necessary parties. Webb further

       claims that her Tort Claim Notice served on Carmel on July 7, 2014 sufficiently

       put the Corporation and the Park Board on notice of her claims because, after

       being served with the Tort Claim Notice, Carmel referred it to Travelers and,

       later, after the Amended Complaint was filed, the same Travelers attorney who

       already represented Carmel entered an appearance on January 17, 2017 to

       represent the Corporation and the Park Board. Webb also asserts that her

       mistake in believing that Carmel owned and operated the Property was

       reasonable and the Corporation and the Park Board knew or should have

       known that, but for a mistake in the identity of all proper parties, they would

       have been named in the original complaint.


[19]   The Amended Complaint alleged that the incident in which Webb was injured

       occurred on June 20, 2014. Appellant’s App. Vol. II at 169. In Indiana, a claim

       for personal injury must be commenced within two years after the cause of

       action accrues. Ind. Code § 34-11-2-4. Therefore, the statute of limitations

       expired on June 20, 2016. “The onus of bringing suit against the proper party

       within the statute of limitation is upon the claimant.” Brown v. Vanderburgh




       Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018   Page 15 of 23
       Cnty. Sheriff’s Dep’t, 85 N.E.3d 866, 869 (Ind. Ct. App. 2017) (citing Rieth–Riley

       Constr. Co. v. Gibson, 923 N.E.2d 472, 478 (Ind. Ct. App. 2010)).


[20]   Webb does not dispute that the Amended Complaint was filed after the statute

       of limitations expired as to her initial claim. Rather, she argues that the

       Amended Complaint relates back pursuant to Trial Rule 15(C). Generally, a

       new defendant to a claim must be added prior to the running of the statute of

       limitations; however, Trial Rule 15(C) provides an exception to that rule by

       allowing the amendment to relate back to the date of the original complaint

       under certain circumstances. Raisor v. Jimmie’s Raceway Pub, Inc., 946 N.E.2d

       72, 76 (Ind. Ct. App. 2011). Under Trial Rule 15(C):


               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:


               (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.




       Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018   Page 16 of 23
       Ind. Trial Rule 15(C). Therefore, in order for an amended complaint changing

       the party against whom the claim is brought to relate back it must meet the

       following requirements: (1) the claim in the amended complaint must have

       arisen 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 that it 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 but for 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. “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.” Raisor, 946 N.E.2d at 76.


[21]   Initially, Webb contends that the trial court erred in granting summary

       judgment as to the Corporation and the Park Board because the Amended

       Complaint related back based on the language of the order granting her leave to

       amend her complaint, and the Corporation’s and the Park Board’s arguments

       for summary judgment were untimely. However, at the time of the December

       30, 2016 order granting Webb leave to amend her complaint, only Carmel was

       a party to the action, and Carmel did not base its argument for summary

       judgment on the Amended Complaint being untimely filed as to it. On

       December 30, 2016, when the order was entered, neither the Corporation nor

       the Park Board were parties to this action, and pursuant to Indiana Trial Rule 4,


       Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018   Page 17 of 23
       the trial court did not have jurisdiction over them because they had not yet been

       served with a summons or complaint and had not yet entered an appearance. 5

       Webb’s argument that the Amended Complaint related back based on the

       December 30 order fails, and the Corporation’s and Park Board’s motion for

       summary judgment were not untimely.


[22]   The Corporation and the Park Board do not dispute that the claims asserted by

       Webb in the Amended Complaint arose out of the conduct, transaction, or

       occurrence set forth or attempted to be set forth in the original complaint.

       However, the Corporation and the Park Board assert that Webb has failed to

       satisfy the additional conditions of the rule governing relation back of

       amendments. That is, Webb failed to prove that, within 120 days after the

       original complaint was filed, the Corporation and the Park Board were on

       notice of the institution of the action against Carmel and that they knew or

       should have known that but for a mistake concerning the identity of the proper

       party, the action should have been brought against them.


[23]   Here, the 120-day period from the date of the original complaint extended to

       September 22, 2016. Prior to that date, there was no evidence to suggest that

       the Corporation and the Park Board had any notice, actual or constructive, of

       Webb’s legal action filed against Carmel. Although Trial Rule 15(C) does not




       5
        Trial Rule 4(A) provides: “The court acquires jurisdiction over a party or person who under these rules
       commences or joins in the action, is served with summons or enters an appearance, or who is subjected to the
       power of the court under any other law.”

       Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018                     Page 18 of 23
       require service of process on the new defendant, “notice of the pending of the

       claim must be such that the added party received either actual or constructive

       notice of the legal action.” Porter Cnty. Sheriff Dep’t v. Guzorek, 857 N.E.2d 363,

       368 (Ind. 2006). The defendant to be added must have received notice of the

       institution of the action that the defendant will not be prejudiced in maintaining

       a defense on the merits. Id. It is not sufficient that the party is on notice that an

       injury has occurred or that the plaintiff has retained counsel. Id. at 368-69.

       Here, there was no evidence that the Corporation and the Park Board received

       any actual or constructive notice of Webb’s original complaint against Carmel

       within the 120-day time period.


[24]   Moreover, there was no showing of a basis to impute knowledge of the filing of

       Webb’s original complaint to the Corporation and the Park Board. “Notice of

       the lawsuit may be actual notice or constructive notice, which may be inferred

       based on either the identity of interest between the old and new parties or the

       fact that they share attorneys.” Id. at 369. “An identity of interest may permit

       notice to be imputed to the added party when the original and added party are

       so closely related in business or other activities that it is fair to presume that the

       added part[y] learned of the institution of the action shortly after it was

       commenced.” Id. (citation and quotation marks omitted). No evidence was

       presented to show that Carmel and the Corporation and the Park Board were so

       closely related in business or other activities that it would be fair to presume

       that the Corporation and the Park Board learned of the action against Carmel in

       the 120-day time period.


       Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018   Page 19 of 23
[25]   Notice may also be imputed based on shared legal counsel if it is reasonable to

       infer that the attorney for the initial party will have communicated to the added

       party that it may be joined in the action. Id. Webb argues that the Corporation

       and the Park Board received sufficient notice of the institution of the action

       against Carmel because they shared counsel with Carmel, and therefore, notice

       may be imputed because it is reasonable to infer that Carmel’s attorney would

       have communicated to the Corporation and the Park Board that they may be

       joined in Webb’s action against Carmel. However, there was no designated

       evidence presented that supported Webb’s contention that parties shared legal

       counsel prior to the end of the 120-day period. The evidence most favorable to

       Webb reveals that counsel for Carmel entered an appearance on June 13, 2016.

       Webb designated evidence that an appearance was filed on behalf of the

       Corporation and the Park Board on January 17, 2017 by the same attorney

       representing Carmel. Although this evidence indicates that the parties were

       represented by the same attorney on January 17, 2017, it does not establish that

       they shared the same counsel at any time prior, specifically during the 120-day

       period after the original complaint was filed. No evidence was presented that

       the parties shared counsel prior to the filing of the Amended Complaint or

       during the 120-day period such that the Corporation and the Park Board can be

       said to have received such notice of the institution of the action against Carmel

       that the added parties will not be prejudiced in maintaining a defense on the

       merits. Therefore, there was no basis to impute knowledge of the filing of

       Webb’s original complaint to the Corporation and the Park Board.



       Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018   Page 20 of 23
[26]   Because Webb has failed to show that the Corporation and the Park Board had

       notice of her lawsuit prior to the expiration of the 120-day period, we need not

       reach the question of whether the Corporation and the Park Board “knew or

       should have known that but for a mistake concerning the identity of the proper

       party, the action would have been brought against [them].” Ind. Trial Rule

       15(C)(2); Brown, 95 N.E.2d at 871. Pursuant to the requirements of Indiana

       Trial Rule 15(C), Webb’s Amended Complaint did not relate back to the date of

       the original complaint. We, therefore, conclude that the trial court did not err

       in granting summary judgment in favor of the Corporation and the Park Board. 6


                                                        B. Carmel

[27]   Webb contends that the trial court erred in granting summary judgment in favor

       of Carmel based on the trial court’s finding that Carmel had no ownership

       interest in the Property. She asserts that Carmel failed to designate any

       evidence in support of its contention that it did not own or manage the




       6
        Although Webb maintains that the Corporation and the Park Board had notice of the action against Carmel
       such that the Amended Complaint should relate back to the date of the original complaint, evidence was
       presented that Carmel actually provided notice to Webb prior to the statute of limitations running that
       Carmel did not own, maintain, or manage the Property in an email dated June 17, 2016. See Appellees’ App.
       Vol. II at 187. On June 20, 2016, counsel for Carmel advised Webb’s counsel of the identity of the parties
       who owned and managed the Property and provided the supporting documentation. Id. Carmel served
       discovery responses to Webb on September 13, 2017, which again provided documentation of the ownership
       and operation of the Property, the very same documents previously provided on June 20. Id. 179-86, 188-94.
       Additionally, Carmel filed its first motion for summary judgment in November 2016 on the basis that the
       Property was owned and/or operated by either the Park Board or the Corporation, but not Carmel. Id. at 6-
       14. Despite these repeated notices of the proper parties to the action, Webb did not file the Amended
       Complaint until December 30, 2016, 193 days after the statute of limitations had run.

       Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018                    Page 21 of 23
       Property. Webb further argues that the trial court failed to consider her

       designated materials.


[28]   Under Indiana’s summary judgment procedure, the party moving for summary

       judgment has the burden of establishing that no genuine issue of material fact

       exists. Lacy-McKinney v. Taylor Bean & Whitaker Mortg. Corp., 937 N.E.2d 853,

       865-66 (Ind. Ct. App. 2010) (citing Jarboe v. Landmark Cmty. Newspapers, 644

       N.E.2d 118, 123 (Ind. 1994)). Only after the moving party has met this burden

       with a prima facie showing that no genuine issue of material fact exists does the

       burden then shift to the non-moving party to establish that a genuine issue of

       material fact does in fact exist. Id. at 866.


[29]   Here, Carmel had the burden to affirmatively negate Webb’s claim that it

       owned and operated the Property. Carmel designated the following evidence to

       the trial court in support of its motion for summary judgment: the Interlocal

       Agreement; the Certified Lease Agreement and Option to Purchase between

       Clay Township and the Corporation; the affidavit of Mark Westermeier; a

       Certified Copy of Interlocal Agreement between Carmel and Clay Township;

       the Sublease and Management Agreement between Clay Township, the

       Corporation, and the Park Board; Carmel’s Verified Responses to Webb’s

       Interrogatories; and Carmel’s responses to Webb’s Request for Production.

       Appellees’ App. Vol. II at 36-37. This evidence established that: the Corporation

       is the sole owner of the Property, Id. at 59-89, 179; the Corporation and Clay

       Township entered into a Sublease and Management Agreement with the Park

       Board granting the Park Board the exclusive right, power, and authority to

       Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018   Page 22 of 23
       access, occupy, improve and operate the approximately 161 acres comprising

       Central Park in Carmel, Indiana, which includes the Property, Id. at 90-93, 127-

       78; Williams and Associates, Ltd. designed the Property, Id. at 90-93; neither

       the Corporation nor Carmel developed, constructed, operated, designed or

       maintained the Property, Id. at 90-93; Carmel never owned the Property, Id. at

       181; Carmel has no knowledge of the inspection practices of the Property, Id. at

       183. Therefore, Carmel designated evidence to make a prima facie showing

       that it was not the owner or operator of the Property. The burden then shifted

       to Webb to designate evidence establishing a genuine issue of fact that Carmel

       owned or operated the Property, which she failed to do. We conclude that the

       trial court properly granted summary judgment in favor of Carmel.


[30]   Affirmed.


[31]   Baker, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 29A05-1710-CT-2420 | April 30, 2018   Page 23 of 23
