                                                                         FILED
                                                                     Oct 20 2016, 9:45 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Robert F. Ahlgrim, Jr.                                     Kelly Thompson
State Farm Litigation Counsel                              Thompson Legal Services, LLC
Indianapolis, Indiana                                      Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

James A. McGee,                                            October 20, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A04-1605-CT-1076
        v.                                                 Appeal from the Marion Superior
                                                           Court
Shanna Kennedy,                                            The Honorable Gary Miller, Judge
Appellee-Plaintiff.                                        Trial Court Cause No.
                                                           49D03-1603-CT-9765



Bailey, Judge.




Court of Appeals of Indiana | Opinion 49A04-1605-CT-1076 | October 20, 2016                  Page 1 of 9
                                           Case Summary
[1]   Shanna Kennedy (“Kennedy”) and James McGee (“McGee”) were involved in

      an automobile accident and litigation ensued. McGee filed an Indiana Trial

      Rule 12(B)(6) motion to dismiss on statute of limitations grounds and Kennedy

      filed an Indiana Trial Rule 59 Motion to Correct Error in order to amend the

      filing date of her complaint. The trial court granted the Trial Rule 59 motion,

      McGee filed a motion to reconsider, the motion to dismiss was set for hearing,

      and McGee initiated an appeal. While the appeal was pending, the trial court

      purportedly granted the motion to dismiss. Lacking jurisdiction, we dismiss the

      interlocutory appeal.



                                                       Issue
[2]   McGee presents a single, consolidated issue: whether the trial court properly

      granted Trial Rule 59 relief. Kennedy presents a single, consolidated issue:

      whether the trial court properly granted McGee’s Trial Rule 12(B)(6) motion to

      dismiss. We address the procedural and substantive allegations of the parties to

      the extent necessary to resolve an issue that we raise sua sponte: whether there

      is subject matter jurisdiction to hear the appeal.



                             Facts and Procedural History
[3]   On March 12, 2014, Kennedy was driving southbound on Interstate 65 in

      Marion County, Indiana, when her vehicle struck a large pothole and became

      disabled. She pulled her vehicle to the far right and activated her emergency
      Court of Appeals of Indiana | Opinion 49A04-1605-CT-1076 | October 20, 2016   Page 2 of 9
      flashers. McGee, allegedly intoxicated, crashed his vehicle into Kennedy’s

      vehicle.


[4]   Kennedy filed a Complaint for Damages, which was file stamped on March 18,

      2016 by the Clerk of the Marion Circuit Court. McGee’s answer to the

      complaint admitted that he had negligently caused the vehicle collision.


[5]   On April 5, 2016, McGee filed a Motion to Dismiss, contending that Kennedy’s

      complaint had been filed six days past the two-year statute of limitations of

      Indiana Code Section 34-11-2-4(a), applicable to personal injury and injury to

      personal property. On the same day, Kennedy filed a Motion to Correct Error

      with reference to Indiana Trial Rule 59. Therein, she alleged that her counsel

      had timely filed the complaint for damages by depositing it with a third-party

      commercial carrier. She requested that the trial court “order the Chronological

      Case Summary and the original filings be revised to reflect the appropriate filing

      date of three (3) days after the Complaint was deposited with a third-party

      carrier, March 11, 2016.” (App. at 11.) Kennedy attached an affidavit

      executed by her attorney’s paralegal, averring that she had deposited the

      complaint in a United States Postal mailbox on March 9, 2016, and that

      negotiations had been ongoing at that time between Kennedy’s counsel and a

      representative of McGee’s insurance carrier.


[6]   On April 18, 2016, Kennedy responded to the motion to dismiss, reiterating

      that the complaint was mailed on March 9, 2016, admitting that she had no

      explanation for a nine-day delay in delivery or file-stamping, and arguing that


      Court of Appeals of Indiana | Opinion 49A04-1605-CT-1076 | October 20, 2016   Page 3 of 9
      the ongoing negotiations had rendered the doctrine of equitable estoppel

      applicable. On the same day, McGee responded to the motion to correct error,

      claiming that depositing a complaint via regular first-class mail did not satisfy

      the requirements of Indiana Trial Rule 5(F),1 and that Kennedy could not avoid

      a statute of limitations based upon equitable estoppel. McGee attached, as

      Exhibit A, a letter of January 4, 2016 from Kennedy’s counsel to a State Farm

      Insurance representative, purportedly submitting a “final counteroffer” open for

      ten days. (App. at 25.) (emphasis in original.)


[7]   On April 19, 2016, the trial court granted Kennedy’s motion to correct error

      and ordered that the Chronological Case Summary reflect a filing date of

      March 11, 2016. On April 22, 2016, McGee filed a “Motion to Reconsider

      Order Granting Plaintiff’s Motion to Correct Error.” (App. at 27.) Therein,

      McGee alleged that the motion to correct error had not been properly served

      and that the trial court’s pre-trial, pre-judgment order failed to comply with the

      specificity requirement of Trial Rule 59(J).2




      1
        Trial Rule 5(F) requires that filing of pleadings with the court shall be made by: (1) delivery to the clerk of
      the court; (2) sending by electronic transmission; (3) mailing to the clerk by registered, certified or express
      mail return receipt requested; depositing with a third-party commercial carrier for delivery to the clerk within
      three days; (5) filing with the judge, if permitted, for transmission to the clerk; or electronic filing. The Rule
      provides that filing by registered or certified mail and by third-party commercial carrier shall be complete
      upon mailing or deposit. Finally, the Rule requires that a party filing any paper by any method other than
      personal delivery to the clerk shall retain proof of filing.
      2
        Rule 59(J) provides, in relevant part: “If corrective relief is granted, the court shall specify the general
      reasons therefor.”

      Court of Appeals of Indiana | Opinion 49A04-1605-CT-1076 | October 20, 2016                              Page 4 of 9
[8]    At the same time, McGee also requested a hearing on his motion to dismiss.

       On May 2, 2016, the trial court set the matter for hearing on June 30, 2016. On

       May 3, 2016, Kennedy filed a response to the motion to reconsider, contending

       that there was proper service, and that the “non-traditional” Trial Rule 59

       motion was appropriate to address harmful error, but the “Motion should have

       been treated as a Motion to Correct a Clerical Error.” (App. at 31.)


[9]    On May 18, 2016, McGee filed his Notice of Appeal. On May 19, 2016, the

       trial court denied the motion to reconsider. McGee filed his Appellant’s Brief

       in this Court on June 27, 2016. On June 30, the trial court conducted a hearing

       on the motion to dismiss. On July 6, 2016, the trial court entered an order

       purportedly granting the motion to dismiss and setting aside the order of April

       19, 2016 on Kennedy’s motion to correct error. In so doing, the trial court

       made a factual finding as to the method of mailing: “the complaint was NOT

       mailed certified nor was it otherwise timely filed before the two year statute of

       limitations ran.” (Appellee’s App. Vol. 2 at 2.) In August, Kennedy filed her

       Appellee’s brief with this Court, attempting to challenge on cross-appeal the

       dismissal of her complaint.



                                   Discussion and Decision
                                      Motion to Correct Error
[10]   The trial court granted Kennedy’s motion to correct error without elaboration.

       According to McGee, Trial Rule 59 does not provide an avenue for relief from a


       Court of Appeals of Indiana | Opinion 49A04-1605-CT-1076 | October 20, 2016   Page 5 of 9
       litigant’s own error and, moreover, corrective relief was given without a specific

       reason as contemplated by Trial Rule 59(J).


[11]   Generally, we review a trial court’s ruling on a motion to correct error for an

       abuse of discretion. City of Indianapolis v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct.

       App. 2010), trans. denied. However, to the extent the issues raised on appeal are

       purely questions of law, our review is de novo. Id. Whether an appellate court

       has subject matter jurisdiction presents a question of law reviewed de novo.

       Ramsey v. Moore, 959 N.E.2d 246, 250 (Ind. 2012).


[12]   Here, the Chronological Case Summary indicates that the Trial Rule 59 motion

       to correct error was filed and granted as a pre-trial motion. The authority of

       this Court to exercise appellate jurisdiction is generally limited to appeals from

       final judgments. Ramsey, 959 N.E.2d at 251.


[13]   Indiana Appellate Rule 2(H) defines final judgments. In relevant part, the rule

       provides:

               A judgment is a final judgment if:


               (1) it disposes of all claims as to all parties;


               (2) the trial court in writing expressly determines under Trial
                  Rule 54(B) or Trial Rule 56(C) that there is no just reason for
                  delay and in writing expressly directs the entry of judgment (i)
                  under Trial Rule 54(B) as to fewer than all the claims or
                  parties, or (ii) under Trial Rule 56(C) as to fewer than all the
                  issues, claims or parties[.]


       Court of Appeals of Indiana | Opinion 49A04-1605-CT-1076 | October 20, 2016   Page 6 of 9
[14]   Here, there is no Trial Rule 54(B) or Trial Rule 56(C) certification; subsection

       (1) is implicated. “To fall under Appellate Rule 2(H)(1), an order must dispose

       of all issues as to all parties, ending the particular case and leaving nothing for

       future determination.” Ramsey, 959 N.E.2d at 251. McGee argues that his

       appeal is from a final judgment and not interlocutory, directing our attention to

       Appellate Rule 2(H)(4), which provides that a final judgment includes “a ruling

       on either a mandatory or permissive Motion to Correct Error which was timely

       filed[.]” He also asserts that Kennedy having obtained an order which altered

       the filing date of the complaint “effectively denied McGee’s [Rule 12(B)(6)]

       Motion to Dismiss.” Appellant’s Br. at 9.


[15]   A Trial Rule 12(B)(6) motion to dismiss for failure to state a claim upon which

       relief can be granted tests the legal sufficiency of a claim rather than the

       supporting facts. Chenore v. Plantz, 56 N.E.3d 123, 125-26 (Ind. Ct. App. 2016).

       A motion to dismiss for failure to state a claim on which relief may be granted

       may be an appropriate means of raising the statute of limitations. Id. at 126.

       When the complaint shows on its face that the statute of limitations has run, the

       defendant may file a Trial Rule 12(B)(6) motion. Id. The plaintiff may then

       amend to plead facts in avoidance. Id. Dismissal under Trial Rule 12(B)(6) is

       seldom appropriate. Id.


[16]   The accident took place on March 12, 2014. The complaint for damages was

       file-stamped March 18, 2016. Although McGee could file a Trial Rule 12(B)(6)

       motion in light of the greater-than two-year time lapse, he could not deprive

       Kennedy of the opportunity to amend her complaint to plead facts in avoidance

       Court of Appeals of Indiana | Opinion 49A04-1605-CT-1076 | October 20, 2016    Page 7 of 9
       of the statute of limitations. Additionally, Trial Rule 12(B) provides in relevant

       part:


                If, on a motion, asserting the defense number (6), to dismiss for
                failure of the pleading to state a claim upon which relief can be
                granted, matters outside the pleading are presented to and not
                excluded by the court, the motion shall be treated as one for
                summary judgment and disposed of as provided in Rule 56. In
                such case, all parties shall be given reasonable opportunity to
                present all material made pertinent to such a motion by Rule 56.


[17]   In essence, Kennedy sought a summary means to amend her complaint by

       presenting an affidavit and asking the trial court to correct error with reference

       to Trial Rule 59. McGee, in turn, filed an “exhibit.” (App. at 25.) Kennedy

       could not, however, simply circumvent summary judgment proceedings by

       referencing Trial Rule 59 and obtaining a generic ruling thereon. We do not

       consider her pre-trial motion to be a “timely” filing of a Motion to Correct

       Error defined as a final judgment by Appellate Rule 2(H)(4).3 Likewise, McGee

       could not deprive Kennedy of the opportunity to amend her complaint and

       obtain a final disposition by means of a dismissal while an appeal pended. 4




       3
        Appellate Rule 2(H)(4) provides that a judgment is a final judgment if “it is a ruling on either a mandatory
       or permissive Motion to Correct Error which was timely filed under Trial Rule 59 or Criminal Rule 16[.]”
       4
        An order is void where the trial court lacks authority to act. Kitchen v. Kitchen, 953 N.E.2d 646, 651 (Ind.
       Ct. App. 2011).

       Court of Appeals of Indiana | Opinion 49A04-1605-CT-1076 | October 20, 2016                         Page 8 of 9
[18]   In short, the procedures employed did not result in a final judgment, that is, one

       which disposes of all claims as to all parties. With no final judgment before us,

       we dismiss the interlocutory appeal.


[19]   Dismissed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 49A04-1605-CT-1076 | October 20, 2016   Page 9 of 9
