May 12 2015, 9:36 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
James E. Ayers Gregory F. Zoeller
Wernle, Ristine & Ayers Attorney General of Indiana
Crawfordsville, Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christa Allen, May 12, 2015
Appellant-Plaintiff, Court of Appeals Case No.
61A01-1412-PL-542
v. Appeal from the Parke Circuit Court
The Honorable Samuel A. Swaim,
State of Indiana, Indiana Judge
Department of Correction,
Case No. 61C01-1108-PL-322
Appellees-Defendants
Crone, Judge.
Case Summary
[1] Christa Allen appeals the trial court’s order granting a motion for judgment on
the pleadings after she filed a complaint for personal injury damages against the
State of Indiana and the Indiana Department of Correction (collectively “the
DOC”). The sole restated issue presented for our review is whether the trial
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court erred when it granted judgment on the pleadings in favor of the DOC.
Finding no error, we affirm.
Facts and Procedural History
[2] The material facts alleged by Allen indicate that, in April 2007, she was a post-
surgery transgender prisoner incarcerated in the Rockville Correctional Facility
in Parke County. During her incarceration, the DOC denied Allen the
continued use of her vaginal stent and refused to provide a substitute device,
which caused atrophy, injury, and ruination of her previous surgery.
[3] On June 30, 2008, Allen filed a complaint against the DOC in the Marion
Superior Court seeking personal injury damages.1 The DOC filed a motion to
dismiss the complaint on August 15, 2008, arguing that Allen did not timely file
a notice of tort claim pursuant to the Indiana Tort Claims Act (“ITCA”). The
trial court granted the motion and dismissed the case on August 25, 2008.
Allen did not appeal that ruling.
[4] Three years later, on August 25, 2011, Allen filed the instant complaint against
the DOC in the Parke Circuit Court alleging the same conduct by the DOC and
again seeking personal injury damages. Allen argued that the Marion Superior
Court’s previous order dismissing her claim was erroneous and premised upon
1
We note that Allen also filed a medical malpractice claim against the prison physicians involved in her
medical care. The trial court entered summary judgment in favor of the physicians. On appeal, another
panel of this Court reversed that ruling. See Allen v. Hinchman, 20 N.E.3d 863 (Ind. Ct. App. 2014), trans.
pending.
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the application of an incorrect subsection of the ITCA. Because the two-year
personal injury statute of limitations had long since expired, Allen asserted that
this new complaint could proceed as a continuation of her previous claim
pursuant to the Journey’s Account Statute (“the JAS”), Indiana Code Section
34-11-8-1.
[5] The DOC filed a motion for judgment on the pleadings pursuant to Indiana
Trial Rule 12(C) asserting that Allen’s complaint for personal injury damages
was time-barred and that the JAS was inapplicable to save the claim. The trial
court granted the motion and entered judgment on the pleadings in favor of the
DOC. This appeal ensued.
Discussion and Decision
[6] We review de novo a trial court’s ruling on a Trial Rule 12(C) motion. Veolia
Water Indianapolis, LLC v. Nat’l Trust Ins. Co., 3 N.E.3d 1, 5 (Ind. 2014). We
accept as true the material facts alleged in the complaint and base our ruling
solely on the pleadings. Id. “A Rule 12(C) motion for judgment on the
pleadings is to be granted only where it is clear from the face of the complaint
that under no circumstances could relief be granted.” Id. (quoting Murray v.
City of Lawrenceburg, 925 N.E.2d 728, 731 (Ind. 2010)).
[7] It is undisputed that Allen’s current complaint against the DOC was filed well
outside the two-year statute of limitations applicable to personal injury claims.
See Ind. Code § 34-11-2-4 (providing that an action for “injury to person” must
be commenced within two years after the cause of action accrues). Allen
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maintains that the JAS, Indiana Code Section 34-11-8-1, applies to preserve her
original, timely-filed claim and save her current complaint from judgment on
the pleadings. The JAS provides:
(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 commenced under the
statute of limitations governing the original action;
and be considered a continuation of the original action commenced by
the plaintiff.
Ind. Code § 34-11-8-1.
[8] We have explained that the JAS, when applicable, “serves to resuscitate actions
that have otherwise expired under the statute of limitations.” Irwin Mortg. Corp.
v. Marion Cnty. Treasurer, 816 N.E.2d 439, 443 (Ind. Ct. App. 2004). The
statute’s typical use is to save an action originally filed in the wrong court. Id.
at 444. It has been interpreted to generally permit “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 (2012). The purpose of the JAS is to
ensure that a diligent suitor retains the right to a hearing in court until receiving
a judgment on the merits. Id. In other words, the JAS provides for
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continuation of the original action 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. Al-Challah v. Barger Packaging, 820
N.E.2d 670, 674 (Ind. Ct. App. 2005).
[9] “Thus, under some circumstances the JAS permits a filing after the applicable
limitation period to be deemed a ‘continuation’ of an earlier claim.” Eads v.
Cmty. Hosp., 932 N.E.2d 1239, 1243 (Ind. 2010). “The JAS is not an exception
to the statute of limitations; it merely allows the continuation of a previous suit
filed within the statute of limitations.” Hayes v. Westminster Village North, Inc.,
953 N.E.2d 114, 118 (Ind. Ct. App. 2011) (citing Vesolowski v. Repay, 520
N.E.2d 433, 435 (Ind. 1988)), trans. denied (2012). It is well settled that in order
for the saving power of the JAS to apply, the decision ending the previous suit
must not have been a decision on the merits. Vesolowski, 520 N.E.2d at 435.
[10] Here, the trial court dismissed Allen’s original complaint on grounds that she
failed to give proper tort claim notice to the DOC pursuant to the ITCA. This
Court has held that dismissal of a complaint for failure to comply with the
notice provisions of the ITCA constitutes an adjudication on the merits. Creech
v. Town of Walkerton, 472 N.E.2d 226, 228-29 (Ind. Ct. App. 1984); accord
Rodgers v. Martinsville Sch. Corp., 521 N.E.2d 1322, 1326 (Ind. Ct. App. 1988),
trans. denied. Accordingly, even assuming that the trial court’s dismissal of
Allen’s original claim was erroneous as she now alleges, such dismissal was still
a decision on the merits. Therefore, the JAS is not available to save Allen’s
current claim.
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[11] In sum, the JAS is inapplicable, and it is clear from the face of Allen’s
complaint that her claim is time-barred and that under no circumstances could
relief be granted. The trial court properly dismissed the action pursuant to
Indiana Trial Rule 12(C). Consequently, we affirm.
[12] Affirmed.
Brown, J., and Pyle, J., concur.
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