Denna Delacruz and Barry Barger v. Paul Wittig

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

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 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.

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 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.

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[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 ….

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 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).

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[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[.]

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 (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).

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 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).

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 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.

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[15] Reversed and remanded.

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

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