Israel Munoz v. Jerome Woroszylo

Apr 13 2015, 6:18 am

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
W. Brent Threlkeld John P. Schafer
Paul A. Jansen Michael J. Stapleton
Threlkeld & Associates Ball Eggleston PC
Indianapolis, Indiana Lafayette, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Israel Munoz, April 13, 2015

Appellant-Defendant, Court of Appeals Case No.
79A02-1409-CT-679
v. Appeal from the Tippecanoe County
Superior Court
The Honorable Thomas H. Busch,
Jerome Woroszylo, Judge
Appellee-Plaintiff Cause No. 79D02-1406-CT-13

Bailey, Judge.

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 Case Summary
[1] After a car accident, Israel Munoz (“Munoz”), an Indiana resident, was sued by

Jerome Woroszylo (“Woroszylo”), an Illinois resident, in a federal court in

Illinois. Woroszylo filed his case in the federal court shortly before the

limitations period for a suit expired. Concluding that it lacked personal

jurisdiction over Munoz, the federal court in Illinois dismissed Woroszylo’s

action.

[2] Woroszylo subsequently filed suit in Tippecanoe County, relying upon the

Journey’s Account Statute1 to preserve his action. Munoz moved to dismiss,

contending that the statute did not operate to preserve Woroszylo’s claim. The

trial court denied Munoz’s motion to dismiss. Munoz sought leave to pursue a

discretionary interlocutory appeal of the trial court’s order; we granted Munoz’s

motion.

[3] We affirm.

Facts and Procedural History
[4] Our statement of the facts in this case follows the standard of review for appeals

from a motion to dismiss; we accordingly take as true uncontroverted facts as

alleged in the complaint.

1
See Ind. Code § 34-11-8-1.

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[5] On November 29, 2011, Munoz, a resident of Lafayette, and Woroszylo, a

resident of Chicago, Illinois, were involved in a car accident in Clinton County,

Indiana. Woroszylo was injured.

[6] On November 11, 2013, Woroszylo filed a complaint for damages against

Munoz in the U.S. District Court for the Northern District of Illinois. Munoz

filed a motion to dismiss the case.

[7] On April 4, 2014, the federal court granted Munoz’s motion, observing that

Woroszylo conceded that the U.S. District Court for the Northern District of

Illinois lacked personal jurisdiction over Munoz. Rather than order

Woroszylo’s action transferred to the U.S. District Court for the Northern

District of Indiana, which had personal jurisdiction over Munoz, the federal

court instead dismissed Woroszylo’s action.

[8] After this, on April 15, 2014, Woroszylo filed a complaint in Tippecanoe

County, alleging that Munoz was negligent and that this negligence caused

Woroszylo’s injuries on November 29, 2011.

[9] On June 12, 2014, Munoz filed his motion to dismiss, in which he alleged that

Woroszylo’s complaint was not timely filed within the two-year statute of

limitation applicable to personal injury claims.2 In response, Woroszylo argued

that his claim had been properly preserved and was not time barred under the

2
See Ind. Code § 34-11-2-4(a), providing that an action for injury to a person must be commenced within two
years after the claim has accrued.

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 Journey’s Account Statute. Munoz replied, arguing that the circumstances of

the dismissal of Woroszylo’s action in the federal court amounted to negligence

under the terms of the Journey’s Account Statute, as a result of which the

statute did not operate to save Woroszylo’s claim from dismissal under the

applicable statute of limitation.

[10] On July 31, 2014, after a hearing featuring only argument of the parties, the

trial court denied Munoz’s motion to dismiss.

[11] On August 29, 2014, Munoz sought this Court’s discretionary interlocutory

review of the order. On September 3, 2014, the trial court certified for

interlocutory appeal its denial of the motion to dismiss. This Court accepted

jurisdiction over this appeal on October 31, 2014.

[12] This appeal ensued.

Discussion and Decision
Standard of Review
[13] Munoz appeals the trial court’s denial of his motion to dismiss for failure to

state a claim, as provided by Trial Rule 12(B)(6). A motion to dismiss for

failure to state a claim tests the legal sufficiency of the claim, but not the

supporting facts. Charter One Mortg. Corp. v. Condra, 865 N.E.2d 602, 604 (Ind.

2007).

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[14] However, the parties submitted additional materials for the trial court’s

consideration. Where a party designates matters outside the pleadings, a

motion to dismiss under Rule 12(B)(6) is treated as a motion for summary

judgment under Rule 56. Ind. Trial Rule 12(B). We accordingly review this

matter as an appeal from the denial of summary judgment, with Munoz as the

movant.

[15] Our standard of review upon appeal from a trial court’s ruling at summary

judgment is well settled. Summary judgment is appropriate only where there is

no genuine issue of material fact and the moving party is entitled to judgment as

a matter of law. T.R. 56(C); Shi v. Yi, 921 N.E.2d 31, 39 (Ind. Ct. App. 2010).

Our review of an order upon a motion for summary judgment is limited to the

materials designated to the trial court. Shi, 921 N.E.2d at 39. We draw all facts

and reasonable inferences therefrom in favor of the nonmovant, and we review

summary judgment decisions carefully to ensure a party was not improperly

denied its day in court. Id.

The Journey’s Account Statute
[16] At the trial court, Munoz sought to dismiss Woroszylo’s complaint on the

theory that the statute of limitation had run, and thus Woroszylo’ complaint

was not timely filed. Woroszylo defended the action by claiming that his claim

had been preserved under the Journey’s Account Statute (“the Statute”), and

the trial court agreed, denying Munoz’s motion to dismiss.

[17] The Statute provides:

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 (a) This section applies if a plaintiff commences an action and:
(1) the plaintiff fails in the action from any cause except
negligence in the prosecution of the action;
(2) the action abates or is defeated by the death of a party; or
(3) a judgment is arrested or reversed on appeal.
(b) If subsection (a) applies, a new action may be brought not later
than the later of:
(1) three (3) years after the date of the determination under
subsection (a); or
(2) the last date an action could have been commenced under
the statute of limitations governing the original action;
and be considered a continuation of the original action commenced by
the plaintiff.
I.C. § 34-11-8-1.

[18] The Statute is a legislative enactment that takes the place of common law

remedies intended to permit lawsuits to continue after dismissals on technical

grounds. See Al-Challah v. Barger Packaging, 820 N.E.2d 670, 674 (Ind. Ct. App.

2005) (citing Vesolowski v. Repay, 520 N.E.2d 433, 434 (Ind. 1988)). The

Statute’s purpose “is to provide for continuation when a plaintiff fails to obtain

a decision on the merits for some reason other than his own neglect and the

statute of limitations expires while his suit is pending.” Id. The Statute

“generally permits a party to refile an action that has been dismissed on

technical grounds.” Dempsey v. Belanger, 959 N.E.2d 861, 865 (Ind. Ct. App.

2011), trans. denied. To successfully invoke the Statute, “the claimant must have

commenced a timely action that failed for reasons other than ‘negligence in the

prosecution.’” Id. at 866 (quoting Eads, 932 N.E.2d at 1243). The Statute “‘is

designed to ensure that the diligent suitor retains the right to a hearing in court

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 until he receives a judgment on the merits.’” McGill v. Ling, 801 N.E.2d 678,

684 (Ind. Ct. App. 2004) (quoting Vesolowski, 520 N.E.2d at 434). Thus, the

Statute “is to be construed liberally to protect such diligent suitors.” Id.

[19] The Indiana Supreme Court has observed that “negligence in the prosecution”

as set forth in the Statute “is broader than its origin in ‘failure to … prosecute as

required by Indiana Trial Rule 41(E),’ and the term has been said to apply to

‘any failure of the action due to negligence in the prosecution.’” Eads, 932

N.E.2d at 1244. Thus, negligence in the prosecution has been held to include

failure to pay filing fees and naming improper parties. Id. (citing Parks v.

Madison Cnty., 783 N.E.2d 711, 721 (Ind. Ct. App. 2002); Zambrana v. Anderson,

549 N.E.2d 1078, 1081 (Ind. Ct. App. 1990)).

[20] But Indiana courts have also held that the Journey’s Account Statute operates

to save an action from the statute of limitations bar even when the initial suit in

another jurisdiction failed for lack of personal jurisdiction. Basham v. Penick,

849 N.E.2d 706, 713 (Ind. Ct. App. 2006) (citing Ullom v. Midland Indus., Inc.,

663 F. Supp. 491 (S.D. Ind. 1987)). Thus, in Basham, another panel of this

Court concluded that Indiana’s limitations period applied to a motorist’s suit

that was initially filed, incorrectly, in Kentucky. The Basham Court went on to

conclude that even though the Kentucky court lacked personal jurisdiction over

the defendant, Basham could pursue her claim in Indiana’s courts under the

Journey’s Account Statute where the Kentucky court decided “there is no clear

cut tip of the scales in favor of either side.” Id. at 713 (citations and quotations

omitted).

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[21] In response to Woroszylo’s contention that the Statute preserved his claim

beyond the two-year term of the statute of limitation for negligence actions,

Munoz argued that Woroszylo’s initiation of an action in the U.S. District

Court for the Northern District of Illinois was “negligence in the prosecution of

the action.” I.C. § 34-11-8-1(a)(1). Munoz also argued that Woroszylo’s filing

in Tippecanoe County failed to meet a good faith requirement held by Indiana

courts to apply implicitly to cases under the Statute. See Eads v. Community

Hosp., 932 N.E.2d 1239, 1244 (Ind. 2010).

[22] While Woroszylo’s pursuit of his claim in the U.S. District Court for the

Northern District of Illinois was plainly a poor decision, we cannot agree with

Munoz that it amounts to negligence in the prosecution of the action under the

Statute. Woroszylo filed suit in the federal court before the expiration of the

Indiana statute of limitations for a personal injury claim. Nor was Woroszylo

dilatory in filing suit in Indiana after his claim was dismissed from federal

court: Woroszylo’s original suit was dismissed on April 4, 2014, and he filed

his claim in Indiana less than two weeks later, on April 15, 2014. Indeed, there

is no record before us that Woroszylo made any efforts to appeal the federal

court’s order. At no point did any of this fail to satisfy other statutory bars to

Woroszylo’s suit, and Munoz’s defense of the suit in the federal court

demonstrates that he had notice of the claim. See Eads, 932 N.E.2d at 1244

(observing that failure to pay filing fees and failure to name necessary parties

have been held as negligent pursuit of litigation under the Statute).

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[23] Munoz contends that, even if Woroszylo’s pursuit of the instant action was not

negligent, nevertheless Woroszylo cannot meet the good-faith requirement

imputed to the Statute by case law. Munoz is correct that Woroszylo’s decision

to file suit in the Northern District of Illinois was a poor one. Indeed, the

federal court made the following observations in its order:

Absent any indication that [Munoz] would consent to proceed in this
district prior to the filing of the Complaint, [Woroszylo] could have
and should have “predicted” that the opposing party in this adversary
proceeding would refuse to consent [to personal jurisdiction and venue
in the Northern District of Illinois].
***
Plaintiff’s elementary mistake and ill-advised strategy do not implicate
the interest of justice, and thus the Court declines the Plaintiff’s
invitation to transfer the case [to the Northern District of Indiana].
App’x at 28.

[24] The federal court clearly did not consider Woroszylo’s decision to file suit in

the Northern District of Illinois to be well-advised; indeed, it considered the

decision to be an “elementary mistake” that Woroszylo’s Illinois counsel

should have avoided. App’x at 28. The federal court’s decision rejects

Woroszylo’s proffered rationale of convenience in pursuit of the litigation,

namely, that Woroszylo and his treating physicians all reside in Illinois and that

would constitute the most convenient forum for the litigation.

[25] That such an argument would not prevail against a motion to dismiss for lack of

personal jurisdiction is, as the federal court observed, an elementary

proposition. But hairsplitting distinctions between “in good faith” and “not in

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 bad faith” aside, there is no evidence that Woroszylo filed suit in federal court

with intent to abuse judicial process or create undue delay. As the Indiana

Supreme Court observed in interpreting a prior version of the Indiana statute

that provides for shifting attorney’s fees as a result of bad faith in litigation:

bad faith is not simply bad judgment or negligence. Rather, it implies
the conscious doing of a wrong because of dishonest purpose or moral
obliquity. It is different from the negative idea of negligence in that it
contemplates a state of mind affirmatively operating with furtive
design or ill will.
Mitchell v. Mitchell, 695 N.E.2d 920, 924 (Ind. 1998) (citations and quotations

omitted).

[26] Woroszylo’s decision to file suit in the Northern District of Indiana was bad

judgment. Bad judgment is not, however, bad faith. Id. Indeed, we note that

while the federal court had discretionary authority to decline Woroszylo’s

request that his case be transferred into the U.S. District Court for the Northern

District of Indiana, see 28 U.S.C. § 1404(a), if Woroszylo had brought suit in an

improper venue in an Indiana state court, transfer to an Indiana court with

proper venue would have been mandatory under Indiana’s venue rules. See

T.R. 75(B). This reflects Indiana courts’ general preference for deciding cases

on their merits and for avoiding the construction of procedural obstacles to the

presentation of such cases. Lindsey v. De Groot Dairy LLC, 867 N.E.2d 602, 606

(Ind. Ct. App. 2007), trans. denied. Indeed, the very same policy is served by the

Journey’s Account Statute.

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[27] For all the foregoing reasons, we find no reversible error in the trial court’s

denial of Munoz’s motion to dismiss.

[28] Affirmed.

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

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