FILED
Apr 30 2018, 7:45 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES
Stacy L. Kelley Aimée Rivera Cole
Glaser & Ebbs Travelers Staff Counsel Indiana
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Pamela Webb, April 30, 2018
Appellant-Plaintiff, Court of Appeals Case No.
29A05-1710-CT-2420
v. Appeal from the
Hamilton Superior Court
City of Carmel, Carmel Clay The Honorable
Parks Building Corporation, and William J. Hughes, Judge
Carmel/Clay Board of Parks & The Honorable
Recreation, William P. Greenaway, Magistrate
Appellees-Defendants. Trial Court Cause No.
29D03-1605-CT-4530
Kirsch, Judge.
[1] Pamela Webb (“Webb”) appeals the trial court’s grant of summary judgment in
favor of City of Carmel (“Carmel”), Carmel Clay Parks Building Corporation
(“the Corporation”), and Carmel/Clay Board of Parks & Recreation (“the Park
Board”) (collectively, “the Appellees”) in her action against the Appellees for
negligence. She raises the following restated issues for our review on appeal:
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I. Whether the trial court abused its discretion in granting the
Appellees’ motion to strike portions of Webb’s response in
opposition to the motion for summary judgment; and
II. Whether the trial court erred in granting summary
judgment in favor of the Appellees.
[2] We affirm.
Facts and Procedural History
[3] This case arises from an incident that occurred on June 20, 2014 at the Monon
Community Center located at 1235 Central Park Drive East, Carmel, Indiana
(“the Property”). Webb alleges that as she was walking down the gymnasium
bleacher steps, the bottom step of the bleachers slid causing her to fall to the
floor. Webb contends that the Property is “owned, operated, managed and/or
maintained by” the Appellees. Appellant’s App. Vol. II at 169. Webb alleges that
the Appellees were negligent for failure to keep the entry/exit of the bleacher
steps in a reasonably safe condition, failing to warn guests of the unsafe
condition of the steps, failure to exercise reasonable care in the design,
operation and maintenance of the steps, failure to provide adequate lighting,
and/or failure to design a safe entryway for guests. Id. at 169-70.
[4] The Corporation is the sole owner of the Property. Id. at 81-108. The
Corporation and Clay Township entered into a Sublease and Management
Agreement with the Park Board granting the Park Board the exclusive right,
power, and authority to access, occupy, improve, and operate the
approximately 161 acres comprising Central Park in Carmel, Indiana, which
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includes the Property. Id. at 55-61, 141. Williams and Associates, Ltd.
designed the Property. Id. at 141. Neither the Corporation nor Carmel
developed, constructed, operated, designed, or maintained the Property.
Appellees’ App. Vol. II at 92. Carmel never owned the Property. Id. at 181.
Carmel has no knowledge of the inspection practices of the Property. Id. at
183. The Park Board operates as a political subdivision on its own behalf and,
pursuant to Article IV, Section 4.2(i) of the Interlocal Agreement,1 has the right
to sue and be sued by or in its legal name as the “Carmel/Clay Board of Parks
and Recreation” with service of process being had upon the President of the
Board. Id. at 91, 96-126.
[5] On or about July 7, 2014, Webb served the Mayor of Carmel with a Tort Claim
Notice. Carmel acknowledged receipt of Webb’s Tort Claim Notice and
referred the notice to their liability insurance carrier, Travelers Insurance
(“Travelers”), and Travelers subsequently requested further documentation of
Webb’s medical records and billing statements. On May 25, 2016, almost two
years after filing the Tort Claim Notice, Webb filed a Complaint for Damages
1
“Generally, ‘Interlocal Agreements,’ also referred to as ‘Interlocal Cooperation Agreements,’ are formal
vehicles through which municipalities or political subdivisions may eliminate barriers imposed by
jurisdictional lines in order to offer public services more efficiently.” City of Carmel v. Steele, 865 N.E.2d 612,
620 (Ind. 2007) (citing Osborne M. Reynolds, Jr., Local Government Law 43 (1982); see also Ind. Code § 36-1-7-
1 to -15 (providing for Interlocal Cooperation Agreements)). The primary types of agreements are service
contracts, under which “one local government provides services to another, and joint enterprise contracts,
under which two or more local units jointly undertake a project.” Id.
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against Carmel and the Indiana Parks and Recreation Association. 2 On June
16, 2016, counsel for Carmel advised counsel for Webb that Carmel did not
have any ownership interest in the Property. Id. at 187. On June 20, 2016,
counsel for the City provided counsel for Webb with documents, confirming
that the owner of the Property was the Corporation and the manager of the
Property was the Park Board. Id. On September 13, 2016, Carmel served its
responses to Webb’s discovery, which included the same documents provided
on June 20, 2016 by Carmel’s counsel showing the Corporation as the owner
and the Park Board as the operator of the Property and the lack of any role by
the City in the development, construction, ownership, operation, design or
maintenance thereof. Id. at 179-85, 188-94. Carmel filed a motion for
summary judgment on November 4, 2016 on the basis that it did not own,
manage, or control the Property. Id. at 6-14.
[6] On December 28, 2016, Webb filed a motion seeking leave to file an amended
complaint naming the Corporation and the Park Board as defendants (“the
Amended Complaint”). Along with the motion seeking leave to file the
Amended Complaint, Webb filed a proposed summons for both the
Corporation and for the Park Board. The trial court made a notation on the
summonses that service was to be done by the attorney. Id. at 25-28. Webb’s
motion was granted on December 29, 2016. The Amended Complaint was
2
Indiana Park & Recreation Association was later dismissed from the action through a “Stipulation of
Dismissal” filed by the parties on March 28, 2017. Appellees’ App. Vol. II at 35.
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filed December 30, 2016. The Park Board was not served with the summons or
the Amended Complaint, nor was it served with a Notice of Tort Claim. Id. at
92. The Corporation was not served with the summons or the Amended
Complaint. Id. at 195. On January 10, 2017, the trial court ordered that
Carmel’s motion for summary judgment was rendered moot by the filing of the
Amended Complaint. On June 6, 2017, the Appellees filed a motion for
summary judgment on the basis that the complaint against the Corporation and
the Park Board was not filed within the statute of limitation and on the basis
that Carmel was not the owner or operator of the Property, and Webb later filed
her response in opposition to the summary judgment motion and designated
evidence. Id. at 36-53, 196-212. The Appellees filed their reply to Webb’s
response as well as a motion to strike various purported representations of fact
contained in Webb’s response in opposition to the Appellees’ motion for
summary judgment. A hearing was held on the Appellees’ motion for summary
judgment and the motion to strike, and on September 25, 2017, the trial court
entered an order granting the Appellees’ motion to strike and motion for
summary judgment. Appellant’s App. Vol. II at 12-18. Webb now appeals.
Discussion and Decision
I. Motion to Strike
[7] Webb initially contends that the trial court abused its discretion in granting the
Appellees’ motion to strike several statements contained in her response in
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opposition to the Appellees’ motion for summary judgment. 3 A trial court has
broad discretion in ruling on the admissibility of evidence. Morris v. Crain, 71
N.E.3d 871, 877 (Ind. Ct. App. 2017). Such discretion extends to rulings on
motions to strike affidavits on the grounds that they fail to comply with the
summary judgment rules. Id. “We will determine that a trial court has abused
its discretion when the trial court’s decision is clearly against the logic and effect
of the facts and circumstances before it.” Id.4
[8] Affidavits in support of or in opposition to a motion for summary judgment are
governed by Indiana Trial Rule 56(E), which provides, in relevant part:
3
The Appellees assert that the trial court’s order granting their motion to strike and motion for summary
judgment should be affirmed on the basis that Webb failed to include necessary documents in her Appellant’s
Appendix. The Appellees note that Webb’s appendix does not contain the Appellees’ motion for summary
judgment and designated evidence in support of the motion, nor does it contain Webb’s response in
opposition to the summary judgment motion, which all are documents necessary in determining the issues
raised on appeal. The purpose of the appendix in civil appeals is to provide us “only those parts of the record
on appeal that are necessary for the Court to decide the issues presented.” Ind. Appellate Rule 50(A)(1). The
appellant’s appendix shall contain . . . copies of the following documents . . . (f) pleadings and other
documents from the Clerk’s Record in chronological order that are necessary for resolution of the issues
raised on appeal.” App. R. 50(A)(2)(f). Therefore, “when appealing the grant or denial of a motion for
summary judgment, it is not sufficient for the appellant to include in the appendix only those documents
designated by it to the trial court.” Kelly v. Levandoski, 825 N.E.2d 850, 856 (Ind. Ct. App. 2005) (quotation
omitted), trans. denied. Rather, appellants should include in their appellant’s appendix all documents relating
to the disposition of the motion for summary judgment, including any documents that the appellee
designated. Id. Although an appellant’s claim may be deemed waived on appeal for failure to include
documents designated to the trial court in its appendix, we prefer to decide issues on their merits when
possible. Id. (citing Hughes v. King, 808 N.E.2d 146, 148 (Ind. Ct. App. 2004) (dismissing appeal of grant of
summary judgment when appellant failed to include all designated evidence in the appendix)). Despite
Webb’s failure to provide the Appellees’ motion for summary judgment and the designated evidence
supporting the motion and her own response in opposition to the summary judgment motion, the Appellees
provided the documents in their Appellees’ Appendix. Accordingly, we may decide the issue on the merits.
4
Webb argues for the first time on appeal that the Appellees’ motion to strike was not permissible under the
Indiana Trial Rules. Issues that are not raised before the trial court on summary judgment cannot be argued
for the first time on appeal and are therefore waived. Hrezo v. City of Lawrenceburg, 81 N.E.3d 1146, 1156-57
(Ind. Ct. App. 2017). Webb has, therefore, waived this issue because she is raising it for the first time on
appeal.
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“Supporting and opposing affidavits shall be made on personal knowledge,
shall set forth such facts as would be admissible in evidence and shall show
affirmatively that the affiant is competent to testify to the matters stated
therein.” The requirements of Trial Rule 56(E) are mandatory; hence, a court
considering a motion for summary judgment should disregard inadmissible
information contained in supporting or opposing affidavits. Reed v. City of
Evansville, 956 N.E.2d 684, 695-96 (Ind. Ct. App. 2011), trans. denied. Further,
the party offering the affidavit into evidence bears the burden of establishing its
admissibility. Id. at 696. A party may not rest on the mere allegations of his or
her pleadings. T.R. 56(E). Unsupported factual assertions or bare factual
allegations should be excluded from consideration.
[9] In their motion to strike, the Appellees sought to have six statements stricken
from Webb’s response in opposition to the Appellees’ motion for summary
judgment, and the trial court granted the motion to strike as to all six
statements.
[10] First, the Appellees moved to strike the following statements: (1)“The City of
Carmel approved and acknowledged receipt of Ms. Webb’s Tort Claim Notice
and referred the notice to their liability insurance carrier, Travelers, to handle
Ms. Webb’s personal injury claim and requested further documentation of Ms.
Webb’s medical records and billing statements”; and (2) “It is undisputed that
the City of Carmel approved and acknowledged receipt of Plaintiff’s Tort Claim
Notice.” Appellant’s App. Vol. II at 184-185. The trial court granted the motion
in part by striking the word “approved” from each sentence reasoning that no
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properly designated evidence supported the assertion that Carmel “approved”
Webb’s Tort Claim Notice. Id. at 13. Indiana Code section 34-13-3-11
provides that a claim is denied if the governmental entity fails to approve the
claim in its entirety within ninety days, unless the parties have reached a
settlement before the expiration of that period. Webb argues that the repeated
requests by Travelers for her medical records and billing statements “suggests”
that Carmel approved her claim and requested the documents to assess
damages in preparation for settlement negotiations. Appellant’s Br. at 19. This
argument acknowledges that settlement discussions had not even begun. While
Webb relies upon the Tort Claim Notice, the certified mail return receipt of the
Tort Claim Notice, and correspondence related to the routine request by
Travelers for Webb’s medical records and itemized billing statements, id. at 19,
those documents merely reflect a request for information and in no way support
her argument that her Tort Claim Notice was approved by anyone. Appellant’s
App. Vol. II at 155-57. On the contrary, by operation of law pursuant to Indiana
Code section 34-13-3-11, the Tort Claim Notice was deemed denied when
Carmel failed to approve the claim in its entirety within ninety days and no
settlement was reached. The trial court did not abuse its discretion in striking
this portion of the statements as no evidence was presented to support it.
[11] Second, the trial court granted the Appellees’ motion to strike the following
statements: (1) “The Interlocal Cooperation Agreement verified that on June
20, 2014, Defendant City of Carmel owned, operated, managed, and/or
maintained the Monon Community Center pursuant to the Interlocal
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Cooperation Agreement”; and (2) “It is undisputed that Defendant City of
Carmel through the Interlocal Cooperation Agreement operated, managed and
maintained the Monon Community Center located at 1235 Central Park Drive
East, Carmel, IN as a recreation, fitness and nature center for the City of
Carmel.” Id. at 13-14. In her challenge to the trial court’s striking of these
statements, Webb relies solely on her original complaint and on the Amended
Complaint as support for those statements. Appellant’s Br. at 20. However,
Webb had the burden to present sufficient evidence to demonstrate that a
genuine issue of fact existed, and the factual allegations in her complaints were
insufficient to meet this burden. See Abbott v. Bates, 670 N.E.2d 916, 923 (Ind.
Ct. App. 1996) (stating that when the moving party files materials establishing
the lack of any issues of material fact, the nonmovant may not rely upon his
pleadings, but must bring forth specific facts, by affidavit or otherwise, to show
a genuine issue for trial). Webb also asserts for the first time on appeal that the
Interlocal Agreement fails to reference, mention, or identify the Property.
Therefore, this argument is waived since it is being raised for the first time on
appeal. Hrezo v. City of Lawrenceburg, 81 N.E.3d 1146, 1156-57 (Ind. Ct. App.
2017). Additionally, this argument directly contradicts the very statements
Webb challenges as being improperly stricken by the trial court. Webb urges
that the Interlocal Agreement fails to reference, mention, or identify the
Property, so it cannot logically follow that the Interlocal Agreement also
verified that Carmel owned, operated, managed, and/or maintained the
Property. Therefore, the trial court correctly determined that these statements
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were not supported by any properly designated evidence, and it did not abuse
its discretion when it struck them.
[12] Third, the trial court granted the Appellees’ motion to strike the following
statement, “It was not until November 4, 2016 when Defendant City of Carmel
filed a Motion for Summary Judgment arguing and identifying additional
parties who may be necessary for proper adjudication of Plaintiff’s claims.”
Appellant’s App. Vol. II at 15-16. In doing so, the trial court held that this
statement was contradicted by evidence that was already before the trial court,
reasoning that the Appellees’ designated evidence showed: (1) on May 25,
2016, Webb filed a complaint against Carmel, and on June 16, 2016, counsel
for Carmel advised Webb that Carmel did not have any ownership interest in
the Property; (2) on June 20, 2016, Carmel’s counsel provided Webb with
documents to confirm the owner and manager of the Property; (3) on
September 13, 2016, Carmel served its responses to Webb’s discovery, which
included the same source documents provided on June 20, 2016. Id. In
challenging the striking of this statement, Webb makes no argument or cites to
any facts to support her contention that it was not until November 4, 2016
when she learned of the additional parties necessary for the adjudication of her
claims. Instead, she again cites only to the Amended Complaint, in which she
alleges that Carmel owns the Property. The nonmovant may not rest upon the
allegations or denials of her pleadings, but must respond with affidavits or other
evidence setting forth specific facts showing there is a genuine issue in dispute.
Abbott, 670 N.E.2d at 923. Thus, Webb failed to present any evidence beyond
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her complaint and fails to offer any argument to support her claim that she did
not learn of the parties necessary for proper adjudication until November 4,
2016, when, in fact, the evidence clearly showed that she was made aware of
this information as early as June 16, 2016. The trial court properly granted the
motion to strike.
[13] Fourth, the trial court granted the Appellees’ motion to strike Webb’s statement
“All remaining Defendants have the same insurance carrier, Travelers,” holding
that this assertion was not supported by any properly designated evidence
before the trial court. Appellant’s App. Vol. II at 16. Webb contends that it “is
disingenuous, misleading and a misrepresentation for defense counsel to even
suggest that all remaining defendants do not have the same insurance carrier”
because all of the defendants are represented by an attorney from Travelers Staff
Counsel Indiana. Appellant’s Br. At 22. There is nothing in the record to
support Webb’s claim that parties represented by the same attorney must
therefore also be represented by the same insurance carrier. Therefore, the trial
court did not abuse its discretion when it granted the Appellees’ motion to
strike.
[14] Fifth, the trial court granted Appellees’ Motion to Strike the statement
“Defendants[’] Interlocal Agreement is a private agreement between the
Defendants. The public, including Plaintiff, were not privy to any of the
relationships and/or agreements between the Defendants and thereby not privy
to any other potential liable/responsible parties until after litigation commenced
despite the City of Carmel having received, approved and acknowledged
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Plaintiff’s Tort Claim Notice on or about July 7, 2014.” Appellant’s App. Vol. II
at 16-17. In granting the motion to strike, the trial court held that the Interlocal
Agreement is a public record and was filed with the Hamilton County Recorder
on July 31, 2002. Id. Webb argues that this finding was not sufficient grounds
to strike the statement. Appellant’s Br. at 23. However, the stamp on the first
page of the Interlocal Agreement is proof that it was filed for record on July 31,
2002. Appellant’s App. Vol. II at 31. Furthermore, the Interlocal Agreement was
provided by Carmel to Webb within the statute of limitations and more than six
months prior to the filing of the Amended Complaint. Id. at 187; Appellees’ App.
Vol. II at 187. The trial court did not abuse its discretion in granting the motion
to strike as to these statements.
[15] Lastly, the trial court granted the Appellees’ motion to strike the statement,
“Defendant’s motion fails to designate any affidavits or other admissible
evidence in support of the argument that the City of Carmel did not own,
operate, manage and/or maintain the Monon Community Center on June 20,
2014.” Appellant’s App. Vol. II at 6-7. In doing so, the trial court noted that the
Appellees provided the following evidence of ownership and management of
the Monon Community Center: (1) Certified Lease Agreement and Option to
Purchase between Clay Township and the Corporation; (2) the affidavit of
Mark Westermeier, who oversaw the operations of the Carmel Clay
Department of Parks and Recreation on behalf of the Park Board; (3) the
Interlocal Agreement between Carmel and the Township; (4) Sublease and
Management Agreement between the Township, the Corporation, and the Park
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Board; (5) Carmel’s verified responses to Webb’s interrogatories; and (6)
Carmel’s responses to Webb’s Request for Production. Id. at 17-18. Webb
argues that the trial court erred in striking this statement but does not offer any
factual or legal citation for her argument and, instead, solely relies on her
complaint and the Amended Complaint which is not sufficient to defeat a
motion for summary judgment. Abbott, 670 N.E.2d at 923. We, therefore,
conclude that the trial court properly struck this statement and did not abuse its
discretion in granting the Appellees’ motion to strike.
II. Summary Judgment
[16] When reviewing the grant of summary judgment, our standard of review is the
same as that of the trial court. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d
1167, 1173 (Ind. Ct. App. 2012) (citing Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of
Ind., Inc., 832 N.E.2d 559, 562 (Ind. Ct. App. 2005)), trans. denied. We stand in
the shoes of the trial court and apply a de novo standard of review. Id. (citing
Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind. Ct. App. 2006)). Our
review of a summary judgment motion is limited to those materials designated
to the trial court. Ind. Trial Rule 56(H); Robson v. Tex. E. Corp., 833 N.E.2d
461, 466 (Ind. Ct. App. 2005), trans. denied. Summary judgment is appropriate
only where the designated evidence shows there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law.
T.R. 56(C). For summary judgment purposes, a fact is “material” if it bears on
the ultimate resolution of relevant issues. FLM, 973 N.E.2d at 1173. We view
the pleadings and designated materials in the light most favorable to the non-
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moving party. Id. Additionally, all facts and reasonable inferences from those
facts are construed in favor of the non-moving party. Id. (citing Troxel Equip.
Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct. App. 2005), trans.
denied).
[17] A trial court’s grant of summary judgment is clothed with a presumption of
validity, and the party who lost in the trial court has the burden of
demonstrating that the grant of summary judgment was erroneous. Henderson v.
Reid Hosp. and Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans.
denied. Where a trial court enters specific findings and conclusions, they offer
insight into the rationale for the trial court’s judgment and facilitate appellate
review, but are not binding upon this court. Id. We will affirm upon any
theory or basis supported by the designated materials. Id. When a trial court
grants summary judgment, we carefully scrutinize that determination to ensure
that a party was not improperly prevented from having his or her day in court.
Id.
A. The Corporation and the Park Board
[18] Webb argues that the trial court erred when it found that her claims against the
Corporation and the Park Board were not timely filed, and it granted summary
judgment in favor of the two parties on that basis. Initially, she asserts the issue
of whether the Amended Complaint related back is moot because the trial court
granted her motion for leave to amend her complaint on December 30, 2016,
presumably considering her contentions supporting the filing of the Amended
Complaint, and the Appellees did not object at that time. Webb also contends
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that the Amended Complaint, which named the Corporation and the Park
Board as defendants, was timely filed and related back to the date the original
complaint was filed pursuant to Indiana Trial Rule 15. Webb maintains that
she met all of the requirements of Trial Rule 15(C) because the Amended
Complaint alleged identical contentions as the original complaint and merely
added parties identified by Carmel as being necessary parties. Webb further
claims that her Tort Claim Notice served on Carmel on July 7, 2014 sufficiently
put the Corporation and the Park Board on notice of her claims because, after
being served with the Tort Claim Notice, Carmel referred it to Travelers and,
later, after the Amended Complaint was filed, the same Travelers attorney who
already represented Carmel entered an appearance on January 17, 2017 to
represent the Corporation and the Park Board. Webb also asserts that her
mistake in believing that Carmel owned and operated the Property was
reasonable and the Corporation and the Park Board knew or should have
known that, but for a mistake in the identity of all proper parties, they would
have been named in the original complaint.
[19] The Amended Complaint alleged that the incident in which Webb was injured
occurred on June 20, 2014. Appellant’s App. Vol. II at 169. In Indiana, a claim
for personal injury must be commenced within two years after the cause of
action accrues. Ind. Code § 34-11-2-4. Therefore, the statute of limitations
expired on June 20, 2016. “The onus of bringing suit against the proper party
within the statute of limitation is upon the claimant.” Brown v. Vanderburgh
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Cnty. Sheriff’s Dep’t, 85 N.E.3d 866, 869 (Ind. Ct. App. 2017) (citing Rieth–Riley
Constr. Co. v. Gibson, 923 N.E.2d 472, 478 (Ind. Ct. App. 2010)).
[20] Webb does not dispute that the Amended Complaint was filed after the statute
of limitations expired as to her initial claim. Rather, she argues that the
Amended Complaint relates back pursuant to Trial Rule 15(C). Generally, a
new defendant to a claim must be added prior to the running of the statute of
limitations; however, Trial Rule 15(C) provides an exception to that rule by
allowing the amendment to relate back to the date of the original complaint
under certain circumstances. Raisor v. Jimmie’s Raceway Pub, Inc., 946 N.E.2d
72, 76 (Ind. Ct. App. 2011). Under Trial Rule 15(C):
Whenever the claim or defense asserted in the amended pleading
arose out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, the amendment
relates back to the date of the original pleading. An amendment
changing the party against whom a claim is asserted relates back
if the foregoing provision is satisfied and, within one hundred
and twenty (120) days of commencement of the action, the party
to be brought in by amendment:
(1) has received such notice of the institution of the action that he
will not be prejudiced in maintaining his defense on the merits;
and
(2) knew or should have known that but for a mistake concerning
the identity of the proper party, the action would have been
brought against him.
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Ind. Trial Rule 15(C). Therefore, in order for an amended complaint changing
the party against whom the claim is brought to relate back it must meet the
following requirements: (1) the claim in the amended complaint must have
arisen out of the conduct, transaction, or occurrence set forth or attempted to be
set forth in the original complaint; (2) within 120 days after the commencement
of the action, the party to be brought into the action must have received notice
of the institution of the action that it will not be prejudiced in maintaining a
defense on the merits; and (3) within 120 days after commencement of the
action, the party knew or should have known that but for a mistake concerning
the identity of the proper party, the action would have been brought against the
party to be brought in by the amendment. “The party who seeks the benefit of
the relation back doctrine bears the burden of proving that the conditions of
Trial Rule 15(C) are met.” Raisor, 946 N.E.2d at 76.
[21] Initially, Webb contends that the trial court erred in granting summary
judgment as to the Corporation and the Park Board because the Amended
Complaint related back based on the language of the order granting her leave to
amend her complaint, and the Corporation’s and the Park Board’s arguments
for summary judgment were untimely. However, at the time of the December
30, 2016 order granting Webb leave to amend her complaint, only Carmel was
a party to the action, and Carmel did not base its argument for summary
judgment on the Amended Complaint being untimely filed as to it. On
December 30, 2016, when the order was entered, neither the Corporation nor
the Park Board were parties to this action, and pursuant to Indiana Trial Rule 4,
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the trial court did not have jurisdiction over them because they had not yet been
served with a summons or complaint and had not yet entered an appearance. 5
Webb’s argument that the Amended Complaint related back based on the
December 30 order fails, and the Corporation’s and Park Board’s motion for
summary judgment were not untimely.
[22] The Corporation and the Park Board do not dispute that the claims asserted by
Webb in the Amended Complaint arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the original complaint.
However, the Corporation and the Park Board assert that Webb has failed to
satisfy the additional conditions of the rule governing relation back of
amendments. That is, Webb failed to prove that, within 120 days after the
original complaint was filed, the Corporation and the Park Board were on
notice of the institution of the action against Carmel and that they knew or
should have known that but for a mistake concerning the identity of the proper
party, the action should have been brought against them.
[23] Here, the 120-day period from the date of the original complaint extended to
September 22, 2016. Prior to that date, there was no evidence to suggest that
the Corporation and the Park Board had any notice, actual or constructive, of
Webb’s legal action filed against Carmel. Although Trial Rule 15(C) does not
5
Trial Rule 4(A) provides: “The court acquires jurisdiction over a party or person who under these rules
commences or joins in the action, is served with summons or enters an appearance, or who is subjected to the
power of the court under any other law.”
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require service of process on the new defendant, “notice of the pending of the
claim must be such that the added party received either actual or constructive
notice of the legal action.” Porter Cnty. Sheriff Dep’t v. Guzorek, 857 N.E.2d 363,
368 (Ind. 2006). The defendant to be added must have received notice of the
institution of the action that the defendant will not be prejudiced in maintaining
a defense on the merits. Id. It is not sufficient that the party is on notice that an
injury has occurred or that the plaintiff has retained counsel. Id. at 368-69.
Here, there was no evidence that the Corporation and the Park Board received
any actual or constructive notice of Webb’s original complaint against Carmel
within the 120-day time period.
[24] Moreover, there was no showing of a basis to impute knowledge of the filing of
Webb’s original complaint to the Corporation and the Park Board. “Notice of
the lawsuit may be actual notice or constructive notice, which may be inferred
based on either the identity of interest between the old and new parties or the
fact that they share attorneys.” Id. at 369. “An identity of interest may permit
notice to be imputed to the added party when the original and added party are
so closely related in business or other activities that it is fair to presume that the
added part[y] learned of the institution of the action shortly after it was
commenced.” Id. (citation and quotation marks omitted). No evidence was
presented to show that Carmel and the Corporation and the Park Board were so
closely related in business or other activities that it would be fair to presume
that the Corporation and the Park Board learned of the action against Carmel in
the 120-day time period.
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[25] Notice may also be imputed based on shared legal counsel if it is reasonable to
infer that the attorney for the initial party will have communicated to the added
party that it may be joined in the action. Id. Webb argues that the Corporation
and the Park Board received sufficient notice of the institution of the action
against Carmel because they shared counsel with Carmel, and therefore, notice
may be imputed because it is reasonable to infer that Carmel’s attorney would
have communicated to the Corporation and the Park Board that they may be
joined in Webb’s action against Carmel. However, there was no designated
evidence presented that supported Webb’s contention that parties shared legal
counsel prior to the end of the 120-day period. The evidence most favorable to
Webb reveals that counsel for Carmel entered an appearance on June 13, 2016.
Webb designated evidence that an appearance was filed on behalf of the
Corporation and the Park Board on January 17, 2017 by the same attorney
representing Carmel. Although this evidence indicates that the parties were
represented by the same attorney on January 17, 2017, it does not establish that
they shared the same counsel at any time prior, specifically during the 120-day
period after the original complaint was filed. No evidence was presented that
the parties shared counsel prior to the filing of the Amended Complaint or
during the 120-day period such that the Corporation and the Park Board can be
said to have received such notice of the institution of the action against Carmel
that the added parties will not be prejudiced in maintaining a defense on the
merits. Therefore, there was no basis to impute knowledge of the filing of
Webb’s original complaint to the Corporation and the Park Board.
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[26] Because Webb has failed to show that the Corporation and the Park Board had
notice of her lawsuit prior to the expiration of the 120-day period, we need not
reach the question of whether the Corporation and the Park Board “knew or
should have known that but for a mistake concerning the identity of the proper
party, the action would have been brought against [them].” Ind. Trial Rule
15(C)(2); Brown, 95 N.E.2d at 871. Pursuant to the requirements of Indiana
Trial Rule 15(C), Webb’s Amended Complaint did not relate back to the date of
the original complaint. We, therefore, conclude that the trial court did not err
in granting summary judgment in favor of the Corporation and the Park Board. 6
B. Carmel
[27] Webb contends that the trial court erred in granting summary judgment in favor
of Carmel based on the trial court’s finding that Carmel had no ownership
interest in the Property. She asserts that Carmel failed to designate any
evidence in support of its contention that it did not own or manage the
6
Although Webb maintains that the Corporation and the Park Board had notice of the action against Carmel
such that the Amended Complaint should relate back to the date of the original complaint, evidence was
presented that Carmel actually provided notice to Webb prior to the statute of limitations running that
Carmel did not own, maintain, or manage the Property in an email dated June 17, 2016. See Appellees’ App.
Vol. II at 187. On June 20, 2016, counsel for Carmel advised Webb’s counsel of the identity of the parties
who owned and managed the Property and provided the supporting documentation. Id. Carmel served
discovery responses to Webb on September 13, 2017, which again provided documentation of the ownership
and operation of the Property, the very same documents previously provided on June 20. Id. 179-86, 188-94.
Additionally, Carmel filed its first motion for summary judgment in November 2016 on the basis that the
Property was owned and/or operated by either the Park Board or the Corporation, but not Carmel. Id. at 6-
14. Despite these repeated notices of the proper parties to the action, Webb did not file the Amended
Complaint until December 30, 2016, 193 days after the statute of limitations had run.
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Property. Webb further argues that the trial court failed to consider her
designated materials.
[28] Under Indiana’s summary judgment procedure, the party moving for summary
judgment has the burden of establishing that no genuine issue of material fact
exists. Lacy-McKinney v. Taylor Bean & Whitaker Mortg. Corp., 937 N.E.2d 853,
865-66 (Ind. Ct. App. 2010) (citing Jarboe v. Landmark Cmty. Newspapers, 644
N.E.2d 118, 123 (Ind. 1994)). Only after the moving party has met this burden
with a prima facie showing that no genuine issue of material fact exists does the
burden then shift to the non-moving party to establish that a genuine issue of
material fact does in fact exist. Id. at 866.
[29] Here, Carmel had the burden to affirmatively negate Webb’s claim that it
owned and operated the Property. Carmel designated the following evidence to
the trial court in support of its motion for summary judgment: the Interlocal
Agreement; the Certified Lease Agreement and Option to Purchase between
Clay Township and the Corporation; the affidavit of Mark Westermeier; a
Certified Copy of Interlocal Agreement between Carmel and Clay Township;
the Sublease and Management Agreement between Clay Township, the
Corporation, and the Park Board; Carmel’s Verified Responses to Webb’s
Interrogatories; and Carmel’s responses to Webb’s Request for Production.
Appellees’ App. Vol. II at 36-37. This evidence established that: the Corporation
is the sole owner of the Property, Id. at 59-89, 179; the Corporation and Clay
Township entered into a Sublease and Management Agreement with the Park
Board granting the Park Board the exclusive right, power, and authority to
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access, occupy, improve and operate the approximately 161 acres comprising
Central Park in Carmel, Indiana, which includes the Property, Id. at 90-93, 127-
78; Williams and Associates, Ltd. designed the Property, Id. at 90-93; neither
the Corporation nor Carmel developed, constructed, operated, designed or
maintained the Property, Id. at 90-93; Carmel never owned the Property, Id. at
181; Carmel has no knowledge of the inspection practices of the Property, Id. at
183. Therefore, Carmel designated evidence to make a prima facie showing
that it was not the owner or operator of the Property. The burden then shifted
to Webb to designate evidence establishing a genuine issue of fact that Carmel
owned or operated the Property, which she failed to do. We conclude that the
trial court properly granted summary judgment in favor of Carmel.
[30] Affirmed.
[31] Baker, J., and Bradford, J., concur.
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