                                                                       Aug 27 2015, 9:03 am




      ATTORNEY FOR APPELLANTS                                    ATTORNEYS FOR APPELLEE
      James S. Stephenson                                        Mario Garcia
      Stephenson Morow & Semler                                  Christopher H. Weintraut
      Indianapolis, Indiana                                      Brattain Minnix Garcia
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Denna Delacruz and Barry                                   August 27, 2015
      Barger,                                                    Court of Appeals Case No.
      Appellants-Plaintiffs/Counterclaim                         67A04-1503-CT-127
      Defendants,                                                Interlocutory Appeal from the
                                                                 Putnam Circuit Court
              v.                                                 The Honorable Matthew L.
                                                                 Headley, Judge
      Paul Wittig,                                               Trial Court Cause No.
      Appellee-Defendant/Counterclaimant                         67C01-1406-CT-212




      Crone, Judge.


                                             Case Summary
[1]   Reserve Sheriff’s Deputies Denna Delacruz and Barry Barger (collectively “the

      Deputies”) were assaulted and suffered injuries during their investigation of a

      disturbance at a Fourth of July party. They arrested and later filed a tort action

      against the alleged assailant, Paul Wittig. More than two years after the

      Court of Appeals of Indiana | Opinion 67A04-1503-CT-127 | August 27, 2015               Page 1 of 10
      incident, Wittig filed a counterclaim alleging that the Deputies used excessive

      force during his arrest. The Deputies filed a motion to dismiss Wittig’s

      counterclaim as untimely, which the trial court denied. We accepted the

      Deputies’ interlocutory appeal and conclude that Wittig’s counterclaim is

      barred by the two-year statute of limitations. We therefore reverse the trial

      court’s denial of the Deputies’ motion to dismiss the counterclaim.


                                Facts and Procedural History
[2]   On July 4, 2012, Deputy Delacruz was dispatched to a Putnam County

      residence on a report of an intoxicated party guest having seizures. During her

      investigation, party guests reported seeing a person underneath her vehicle

      possibly tampering with her brake lines. She called for backup, and when

      Deputy Barger arrived the two conferred. While they were doing so, they

      allegedly were assaulted by Wittig, who was also a guest at the party. Deputy

      Delacruz sustained abdominal, cervical, and thoracic injuries, as well as injuries

      to her knee and left shoulder. Deputy Barger suffered facial and knee injuries.

      The Deputies handcuffed and arrested Wittig at the scene.


[3]   In June 2014, the Deputies filed a tort action against Wittig seeking damages

      for the injuries they sustained during the July 4, 2012 party.1 In September

      2014, Wittig filed an answer and raised a counterclaim pursuant to 42 U.S.C. §

      1983, alleging that the Deputies used excessive force during his arrest and failed



      1
        The Deputies’ spouses were parties to the original action as plaintiffs, each seeking damages for loss of
      consortium. However, the spouses’ claims were voluntarily dismissed in December 2014.

      Court of Appeals of Indiana | Opinion 67A04-1503-CT-127 | August 27, 2015                          Page 2 of 10
      to intervene while other party guests used excessive force against him. In his

      counterclaim, Wittig sought compensatory and consequential damages as well

      as attorney fees and a setoff against any damages awarded to the Deputies

      pursuant to their complaint.


[4]   In November 2014, the Deputies filed a motion to dismiss Wittig’s

      counterclaim as barred by Indiana’s two-year statute of limitations for personal

      injury actions. The trial court denied the motion without a hearing or findings

      and certified its order for interlocutory appeal. We accepted jurisdiction.

      Additional facts will be provided as necessary.


                                   Discussion and Decision
[5]   The Deputies maintain that the trial court erred in denying their motion to

      dismiss Wittig’s counterclaim for failure to state a claim upon which relief can

      be granted. Ind. Trial Rule 12(B)(6). We review a trial court’s ruling on a Trial

      Rule 12(B)(6) motion using a de novo standard. Lei Shi v. Cecilia Yi, 921 N.E.2d

      31, 36 (Ind. Ct. App. 2010). This means that we give no deference to the trial

      court’s decision. Id. “The grant or denial of a motion to dismiss turns only on

      the legal sufficiency of the [counterclaim] and does not require determinations

      of fact.” Id. at 36-37. In conducting our review, we test the sufficiency of the

      allegations with regard to whether they have stated some factual scenario in

      which a legally actionable injury has occurred. Id. at 37. We consider the

      pleadings and reasonable inferences in the light most favorable to the

      nonmoving party. Id.


      Court of Appeals of Indiana | Opinion 67A04-1503-CT-127 | August 27, 2015   Page 3 of 10
[6]   The Deputies specifically assert that Wittig’s counterclaim is barred by the

      statute of limitations. In his counterclaim, Wittig alleges that the Deputies

      subjected him to excessive force during his arrest in violation of 42 U.S.C. §

      1983.2 Claims brought under § 1983 are subject to Indiana’s two-year statute of

      limitations for personal injury actions. Snodderly v. R.U.F.F. Drug Enforcement

      Task Force, 239 F.3d 892, 896 (7th Cir. 2001). The statute of limitations for a

      personal injury claim is two years from the date of accrual. Ind. Code § 34-11-

      2-4(a). Wittig’s September 2014 counterclaim concerns conduct that allegedly

      occurred at the Fourth of July party in 2012, and thus would appear to be

      untimely.


[7]   Here, the Deputies sought dismissal of Wittig’s counterclaim as untimely.

      Indiana Trial Rule 13 governs counterclaims. Sections (A) and (B) of the rule

      distinguish between those counterclaims arising out of the “same transaction or

      occurrence” that is the subject matter of the opposing party’s claim (compulsory

      counterclaims) and those not arising out of the same transaction or occurrence

      that is the subject matter of the opposing party’s claim (permissive

      counterclaims). This Court has held that the phrase “transaction or

      occurrence” is to be broadly defined as “a logical relationship” between the two


      2
          42 U.S.C. Section 1983 states in pertinent part,

                 Every person who, under color of any statute, ordinance, regulation, custom, or usage of
                 any State … subjects, or causes to be subjected, any citizen of the United States or other
                 person within the jurisdiction thereof to the deprivation of any rights, privileges, or
                 immunities secured by the Constitution and laws, shall be liable to the party injured in an
                 action at law, suit in equity, or other property proceeding for redress ….



      Court of Appeals of Indiana | Opinion 67A04-1503-CT-127 | August 27, 2015                            Page 4 of 10
      causes of action, meaning that they arise from the same “aggregate of operative

      facts.” Bacompt Syst., Inc. v. Ashworth, 752 N.E.2d 140, 144 (Ind. Ct. App. 2001)

      (citations omitted), trans. denied (2002).3 Wittig’s counterclaim arose from the

      same aggregate of operative facts or occurrence, i.e., the July 4 party, and is

      therefore a compulsory counterclaim.


[8]   Counterclaims are also categorized according to the nature of the relief sought.

      A counterclaim for affirmative relief is one that could have been maintained

      independently of the plaintiff’s action. York Linings Int’l, Inc. v. Harbison-Walker

      Refractories Co., 839 N.E.2d 766, 771 (Ind. Ct. App. 2005). In contrast, a

      counterclaim in recoupment is defensive in posture. Id. at 769. Recoupment

      has been defined as

               1. The recovery or regaining of something, esp. expenses. 2. The
              withholding, for equitable reasons, of all or part of something
              that is due. 3. Reduction of a plaintiff’s damages because of a
              demand by the defendant arising out of the same transaction. 4.
              The right of a defendant to have the plaintiff’s claim reduced or
              eliminated because of the plaintiff’s breach of contract or duty in
              the same transaction. 5. An affirmative defense alleging such a
              breach.


      BLACK’S LAW DICTIONARY 1302 (8th ed. 2004) (internal citations omitted).




      3
        In applying a broad definition of “transaction or occurrence,” we effectuate Trial Rule 13’s “intended
      purpose of avoiding multiple lawsuits between the same parties arising from the same event[s].” Bacompt
      Syst., 752 N.E.2d at 144 (citations omitted).

      Court of Appeals of Indiana | Opinion 67A04-1503-CT-127 | August 27, 2015                       Page 5 of 10
[9]    Wittig admits that he could have filed his counterclaim as an independent

       action. See Appellee’s Br. at 5 (“Wittig’s Section 1983 counterclaim could have

       been brought independently within the limitations period.”). For whatever

       reason, he did not file an independent § 1983 action before the Deputies filed

       their action. To the extent that Wittig now characterizes his counterclaim as

       merely recoupment or setoff, we note that the nature of the damages he seeks

       via his counterclaim (compensatory and consequential damages plus attorney

       fees) is more indicative of an affirmative counterclaim rather than simply a

       claim in recoupment. Moreover, the record is devoid of information indicating

       that the Deputies owed any unrelated obligations to Wittig that would be

       subject to setoff. See Bacompt Syst., 752 N.E.2d at 144 (setoff is a form of

       permissive counterclaim that does not arise out of same operative facts as

       opposing party’s complaint).


[10]   Notwithstanding, Trial Rule 13(J) operates to salvage certain counterclaims that

       otherwise would be time-barred, stating in pertinent part,

               The statute of limitations, a nonclaim statute or other discharge
               at law shall not bar a claim asserted as a counterclaim to the
               extent that ... (1) it diminishes or defeats the opposing party’s claim
               if it arises out of the transaction or occurrence that is the subject-
               matter of the opposing party’s claim, or if it could have been
               asserted as a counterclaim to the opposing party’s claim before it
               (the counterclaim) was barred[.]




       Court of Appeals of Indiana | Opinion 67A04-1503-CT-127 | August 27, 2015         Page 6 of 10
       (Emphases added). “[Trial Rule] 13(J)(1) presupposes a time-barred claim and

       does not address the issue of whether a claim is time-barred.” Crivaro v. Rader,

       469 N.E.2d 1184, 1186 (Ind. Ct. App. 1984), trans. denied (1985).


[11]   Jurisdictions that have addressed the accrual date of counterclaims have taken

       two different approaches: (1) those that require strict adherence to the statutes

       of limitation by all claimants, meaning that counterclaims accrue on the same

       date as the plaintiff’s claim;4 and (2) those that adopt a “tolling” rule, meaning

       that the statute of limitations with respect to the counterclaim is tolled by the

       filing of the original complaint.5


[12]   In Crivaro, another panel of this Court adopted the former approach, declining

       the invitation to adopt a “tolling” rule that would essentially grant the

       counterclaimant additional time for asserting a counterclaim. 469 N.E.2d at

       1186-87. Instead, the Crivaro court recognized that Trial Rule 13 is a procedural

       rule rather than a tolling rule and emphasized the need for strict adherence to




       4
         See, e.g., Murray v. Mansheim, 779 N.W.2d 379, 390 (S.D. 2010) (disallowing compulsory counterclaims
       seeking affirmative relief where limitations period had expired); Duhammel v. State, 653 P.2d 15, 16-17 (Ariz.
       App. 1982) (affirming trial court’s dismissal of counterclaim allegations seeking affirmative relief for libel and
       slander where counterclaim was filed after one-year statute of limitations expired), overruled on other grounds;
       Pharmaresearch Corp. v. Mash, 594 S.E.2d 148, 153-54 (N.C. App. 2004) (holding defendant’s counterclaims
       barred by statute of limitations and did not relate back to date plaintiff filed action), review denied.
       5
         See, e.g., Doxey-Layton Co. v. Clark, 548 P.2d 902, 906 (Utah 1976) (holding that where counterclaim arises
       out of same transaction alleged in plaintiffs’ complaint is not barred by a running of the statute of limitations
       thereafter; rather, statute of limitations is suspended until counterclaim is filed); Unnever v. Stephens, 236
       S.E.2d 886, 888 (Ga. App. 1977) (applying view that institution of plaintiff’s action tolls or suspends running
       of statute of limitations governing a compulsory counterclaim); Armstrong v. Logsdon, 469 S.W.2d 342, 343
       (Ky. App. 1971) (holding that when plaintiff files timely action, he effectively tolls running of statute of
       limitations for that occurrence, meaning no justification for barring defendant’s counterclaim arising from
       that occurrence).

       Court of Appeals of Indiana | Opinion 67A04-1503-CT-127 | August 27, 2015                            Page 7 of 10
       Indiana’s statutes of limitation as legislated, concluding, “Our concern for strict

       adherence to the limitations statute by all claimants seeking relief and our

       recognition of the legislative prerogative override any justification asserted for

       extending the life of a counterclaim.” Id. at 1187. The Indiana Tax Court

       followed suit in Indiana Department of State Revenue, Inheritance Tax Division v.

       Estate of Daugherty, rejecting the counterclaimant’s argument that Trial Rule 13

       tolls the statute of limitations for a counterclaim seeking affirmative relief and

       affirming the probate court’s determination that the counterclaim was time-

       barred under the probate code’s statute of limitations. 938 N.E.2d 315, 320

       (Ind. T.C. 2010), review denied (2011).6


[13]   Wittig does not appear to dispute that his counterclaim accrued as of the date of

       the incident but rather asserts that his otherwise time-barred counterclaim is

       rescued by Indiana Trial Rule 13(J)(1). In other words, he maintains that his

       counterclaim diminishes or defeats the Deputies’ personal injury claims. We

       fail to see how. The undisputed facts indicate law enforcement personnel were

       assaulted while conducting their investigation and attending to an inebriated

       guest who was experiencing seizures. Wittig’s counterclaim of excessive force

       focuses on the Deputies’ alleged conduct during his arrest. Although both the



       6
         See also Barnard v. Knox/Winamac Cmty. Health Ctrs., Cause No. 3:13-CV-387 RLM, 2015 WL 1538820, slip
       op. at *2 (N.D. Ind. Apr. 7, 2015) (holding that counterclaims for defamation and tortious interference
       constituted distinct affirmative claims for relief, not claims for recoupment, and thus were time-barred under
       Indiana Trial Rule 13(J)(1)); Chauffeurs, Teamster, Warehousemen & Helpers Local Union No. 135 v. Jefferson
       Trucking Co., 473 F. Supp. 1255 (S.D. Ind. 1979) (applying federal decisional counterpart to Indiana Trial
       Rule 13(J)(1) and holding that although defendant did not designate its answer as counterclaim, it attempted
       to raise as defenses claims actually constituting requests for affirmative relief which were time-barred and not
       rescued by the trial rule).

       Court of Appeals of Indiana | Opinion 67A04-1503-CT-127 | August 27, 2015                          Page 8 of 10
       Deputies’ claim and his counterclaim arose during the same general occurrence,

       the party, Wittig never claimed self-defense to the assault itself, and he did not

       allege facts in his counterclaim to indicate how his success on his § 1983 claim

       of excessive force during arrest would diminish or defeat the Deputies’ ability to

       establish liability on their primary claim of assault. As discussed, he admits

       that he could have filed his counterclaim as an independent action but did not

       do so. Thus, the counterclaim is clearly an affirmative one and not one merely

       one that seeks recoupment or setoff. Yet, in his brief, he argues that any

       damages he recovers against the Deputies on his counterclaim will “diminish or

       defeat” the damage award on their assault claim. The same could be said

       concerning all counterclaims for recoupment. This is why the rule salvages

       counterclaims in recoupment and not counterclaims such as Wittig’s that seek

       affirmative relief. For affirmative counterclaims, Trial Rule 13(J)(1) simply

       does not operate to toll the statute of limitations. Crivaro, supra; Estate of

       Daugherty, supra.


[14]   In sum, Wittig’s counterclaim was untimely filed and does not otherwise

       qualify for exemption under Trial Rule 13(J)(1). As such, it was time-barred

       and subject to dismissal. Based on the foregoing, we conclude that the trial

       court erred in denying the Deputies’ motion to dismiss the counterclaim

       pursuant to Trial Rule 12(B)(6). Accordingly, we reverse and remand for

       proceedings consistent with this opinion.




       Court of Appeals of Indiana | Opinion 67A04-1503-CT-127 | August 27, 2015    Page 9 of 10
[15]   Reversed and remanded.


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




       Court of Appeals of Indiana | Opinion 67A04-1503-CT-127 | August 27, 2015   Page 10 of 10
