MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 28 2018, 8:31 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Gregory P. Gadson John C. Trimble
Noblesville, Indiana Neal Bowling
Lynsey F. David
Lewis Wagner, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Maynona Blackmon, September 28, 2018
Appellant-Plaintiff, Court of Appeals Case No.
49A02-1707-CT-1488
v. Appeal from the Marion Superior
Court
Mt. Zion Apostolic Church, Inc. The Honorable Gary Miller, Judge
Appellee-Defendant. Trial Court Cause No.
49D03-1602-CT-6040
Pyle, Judge.
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Statement of the Case
[1] Appellant-Plaintiff, Maynona Blackmon (“Blackmon”), appeals the trial court’s
grant of summary judgment to Appellee-Defendant, Mt. Zion Apostolic Church
(“Mt. Zion”). After Blackmon’s son died on Mt. Zion’s property, Blackmon
filed a complaint, containing one wrongful death claim and six survival claims
(Counts 1 through 7), and she alleged that she was raising these claims on
behalf of her son as his personal representative. She also filed an amended
complaint, adding two emotional distress claims (Counts 8 and 9) filed on her
own behalf. When Mt. Zion filed its answer, it addressed only Counts 1
through 7 and raised multiple affirmative defenses, including lack of standing.
Thereafter, Mt. Zion filed a motion for partial summary judgment, arguing that
it was entitled to summary judgment on Counts 1 through 7 as a matter of law
because Blackmon did not have the appropriate legal status within the relevant
statutory filing period to raise the wrongful death claim and the six survival
claims. More specifically, it argued that Counts 1 through 7 could only be
brought by a personal representative and that Blackmon was not the personal
representative within the two-year statutory period for the wrongful death claim
and the eighteen-month period for the survival claims. The trial court granted
partial summary judgment in favor of Mt. Zion relating to Counts 1 through 7,
the wrongful death claim and the survival claims, and its order included
language that there was no just reason for delay and that the judgment was
final.
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[2] On appeal, Blackmon does not dispute that she was not her son’s personal
representative within the relevant statutory period for filing the wrongful death
and survival claims. Instead, she argues that Mt. Zion waived any affirmative
defense to these seven claims and that it was precluded from raising the lack of
standing defense in its summary judgment motion.1 Concluding that
Blackmon’s argument is without merit, we affirm the trial court’s grant of
partial summary judgment to Mt. Zion on Blackmon’s wrongful death and
survival claims (Counts 1 through 7), and we remand this case for further
proceedings on the pending emotional distress claims (Counts 8 and 9).
[3] We affirm and remand.
Issue
Whether the trial court erred by granting Mt. Zion’s motion for
partial summary judgment on Blackmon’s wrongful death and
survival claims.
Facts
[4] On October 5, 2014, Blackmon’s twenty-five-year old son died in a retention
pond on Mt. Zion’s premises. On February 18, 2016, Blackmon filed a
1
Blackmon also argues that the trial court erred by granting summary judgment to Mt. Zion on Counts 8 and
9, the emotional distress claims that she brought on her own behalf. Mt. Zion acknowledges that it did not
move for summary judgment on Counts 8 and 9 and asserts that, accordingly, the trial court did not grant
summary judgment to Mt. Zion on Counts 8 and 9. Our review of the record reveals that the trial court
granted partial summary judgment to Mt. Zion on Counts 1 through 7 only and that Counts 8 and 9 are still
pending before the trial court.
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complaint against Mt. Zion.2 She raised seven claims (collectively, “Counts 1
through 7”), including one wrongful death claim under INDIANA CODE § 34-23-
1-2 (“wrongful death claim”) and six claims under the survival statute,
INDIANA CODE §§ 34-9-3-1 and 34-9-3-4 (“survival claims”).3 Blackmon also
alleged that she was raising these claims on behalf of her son as his personal
representative.
[5] A couple of weeks later, on February 29, 2016, Blackmon filed an amended
complaint, in which she added two additional claims to her prior seven claims.
Specifically, she raised claims for negligent infliction of emotion distress and
intentional infliction of emotion distress on her own behalf (“Counts 8 and 9”
or “emotional distress claims”).
[6] On April 13, 2016, Mt. Zion filed an answer and affirmative defenses. In its
answer, Mt. Zion addressed Blackmon’s original complaint, not her amended
complaint. Thus, Mt. Zion addressed only the allegations in Counts 1 through
7. As for affirmative defenses to Blackmon’s wrongful death and survival
claims, Mt. Zion alleged, in relevant part, that Blackmon “lacked standing to
bring any of the claims she [wa]s bringing.” (App. Vol. 2 at 55).
2
Blackmon also filed the complaint against “Does 1-25[,]” whom she alleged were “yet unnamed
Defendants” who were “complicit and culpable” with Mt. Zion. (App. Vol. 2 at 8).
3
Blackmon claims under the survival statute included the following: (1) battery; (2) assault; (3) intentional
infliction of emotional distress; (4) negligent infliction of emotional distress; (5) general negligence; and (6)
premises liability negligence.
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[7] Mt. Zion filed a motion for summary judgment on May 4, 2017. Mt. Zion
sought summary judgment on only Counts 1 through 7 and did not mention
Counts 8 and 9. Thus, its motion for summary judgment was technically a
motion for partial summary judgment. Mt. Zion requested the trial court to
enter a final judgment in its favor pursuant to Indiana Trial Rule 54(B). Mt.
Zion argued that it was entitled to summary judgment on the wrongful death
claim and survival claims because Blackmon lacked “proper legal status” to
bring these claims since she was not the personal representative of her son’s
estate and no estate had been opened for him. (App. Vol. 2 at 61). Citing to
caselaw in support of its argument, Mt. Zion also contended that even if
Blackmon were to open an estate and become the personal representative, it
was still entitled to summary judgment because the statutory filing period for a
personal representative to file a wrongful death claim (two years) and survival
claims (eighteen months) had already expired and this change in legal status
would not relate back. Thus, Mt. Zion argued that it was entitled to judgment
as a matter of law because Blackmon did not have the appropriate legal status
within the relevant statutory filing period.
[8] In her summary judgment response, Blackmon did not dispute the fact that she
was not the personal representative for her son’s estate. Nor did she contend
that she had opened an estate for her son. Instead, she argued that the trial
court should not grant summary judgment to Mt. Zion on Counts 1 through 7,
the wrongful death claim and the six survival claims, because Mt. Zion had
waived its right to assert an affirmative defense on summary judgment. She
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acknowledged that Mt. Zion had raised lack of standing as a defense in its
answer but argued that it should have been more specific when pleading the
defense in its answer. Blackmon also pointed out that Mt. Zion’s answer did
not address Counts 8 and 9 from her amended complaint. She argued that the
trial court should not grant summary judgment for Counts 8 and 9 because
these emotional distress claims related to harm to her and did not depend on
her status as a personal representative under the wrongful death and survival
statues.4
[9] Thereafter, the trial court issued an order in which it granted Mt. Zion’s partial
summary judgment motion. The trial court’s order provided that “there [wa]s
no just reason for delay” and that “final judgment” was entered for Mt. Zion.
(App. Vol. 2 at 11).5 Blackmon filed a motion to correct error, and the trial
court denied it.6 Blackmon now appeals.
4
On appeal, Mt. Zion alleged that Blackmon’s summary judgment response was untimely and should not be
considered. Mt. Zion, however, raised no such argument to the trial court.
5
Thus, the language of the trial court’s order reflected the “magic language” of Trial Rule 54(B), making it a
final, appealable order for the summary judgment entered on Counts 1 through 7. See Georgos v. Jackson, 790
N.E.2d 448, 452 (Ind. 2003), reh’g denied.
6
Blackmon also filed a motion for default judgment, which the trial court denied.
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Decision
[10] Blackmon argues that the trial court erred by granting summary judgment to
Mt. Zion on Counts 1 through 7, the wrongful death claim and the six survival
claims that she brought on behalf of her deceased son.
[11] Our standard of review for summary judgment cases is well settled. When we
review a trial court’s grant of a motion for summary judgment, our standard of
review is the same as it is for the trial court. Knighten v. E. Chi. Hous. Auth., 45
N.E.3d 788, 791 (Ind. 2015). Summary judgment is appropriate only where the
moving party has shown that there is no genuine issue of material fact and it is
entitled to judgment as a matter of law. Hughley v. State, 15 N.E.3d 1000, 1003
(Ind. 2014). Only after the moving party carries its burden is the non-moving
party then required to present evidence establishing the existence of a genuine
issue of material fact. Knighten, 45 N.E.3d at 791. Additionally, “[w]e construe
all factual inferences in favor of the non-moving party and resolve all doubts
regarding the existence of a material issue against the moving party.” Id.
[12] “The General Assembly has enacted legislation to provide causes of action
through various acts, such as the Survival Statute and the Wrongful Death
Act[,]” and these statutes “create a new right in favor of the legal representative
of the injured decedent.” Faris v. AC & S, Inc., 842 N.E.2d 870, 874 (Ind. Ct.
App. 2006), reh’g denied. However, “Indiana case law is . . . clear that the only
proper plaintiff in a wrongful death action is the one designated in the wrongful
death statute, i.e., the personal representative.” Gen. Motors Corp. v. Arnett, 418
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N.E.2d 546, 548 (Ind. Ct. App. 1981). See also I.C. § 34-23-1-1(b) (providing
that “only the personal representative of the adult person may maintain an
action against the person whose wrongful act or omission caused the death of
the adult person”); Goleski v. Fritz, 768 N.E.2d 889, 890 (Ind. 2002) (explaining
that under the wrongful death act, “the personal representative” of the deceased
may bring an action within two years); Hosler ex rel. Hosler v. Caterpillar, Inc., 710
N.E.2d 193, 196 (Ind. Ct. App. 1999) (explaining that a claim under the
wrongful death act must be commenced by the personal representative of the
decedent within two years), reh’g denied, trans. denied; South v. White River Farm
Bureau Co-op., 639 N.E.2d 671, 673 (Ind. Ct. App. 1994) (“Indiana’s wrongful
death statute grants the right to maintain a wrongful death action only to the
personal representative of the decedent), trans. denied. “Indeed, the bringing of
the action by one in the capacity of personal representative is a condition
precedent to the action.” South, 639 N.E.2d at 673 (citing Gen. Motors, 418
N.E.2d at 548).
[13] Similarly, the survival statute provides that a decedent’s personal representative
is the party who is to raise any survival claim on the decedent’s behalf. See I.C.
§ 34-9-3-4(b) (providing that “[t]he personal representative of the decedent who
was injured may maintain an action against the wrongdoer to recover all
damages resulting before the date of death from those injuries that the decedent
would have been entitled to recover had the decedent lived”); Faris, 842 N.E.2d
at 874 (explaining that “[u]nder the plain language of the Survival Statute, only
the personal representative of [the decedent’s] estate, not [the plaintiff] as an
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individual, could properly institute [a] lawsuit” for survival claims within
eighteen months after the death of the decedent). Additionally, a party who
does not have the appropriate legal status during the requisite time period for
initiating a wrongful death claim or a survival claim cannot save these claims by
filing an amended complaint. See Faris, 842 N.E.2d at 875 (setting forth a “rule
that an amended complaint will relate back if the claimant gains the appropriate
legal status within the statute of limitations and affirming the dismissal of the
plaintiff’s survival claims where she was not the personal representative of the
decedent’s estate within the requisite eighteen-month period); Hosler, 710
N.E.2d at 196 (explaining that Indiana Trial Rule 15(C) does not alter a party’s
legal status and cannot be used to save a wrongful death claim from dismissal);
Gen. Motors, 418 N.E.2d at 549 (holding that “[i]n an Indiana wrongful death
action neither the belated appointment [as personal representative] itself nor an
amended complaint can relate back to the date of the original filing” and
explaining that Indiana Trial Rules 15(C) and 17(A) could not save the
plaintiff’s wrongful death claim where she was not the personal representative
of the decedent’s estate within the requisite two-year period).
[14] On appeal, Blackmon does not dispute the fact that she was not the personal
representative during the relevant statutory filing period for the wrongful death
claim and the survival claims raised in Counts 1 through 7. Instead, she
contends that the trial court erred by granting summary judgment on Counts 1
through 7 because Mt. Zion waived its right to assert an affirmative defense
pursuant to Trial Rule 8(C).
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[15] Indiana Trial Rule 8(C) provides as follows:
(C) Affirmative defenses. A responsive pleading shall set forth
affirmatively and carry the burden of proving: accord and
satisfaction, arbitration and award, discharge in bankruptcy,
duress, estoppel, failure of consideration, fraud, illegality, injury
by fellow servant, laches, license, payment, release, res judicata,
statute of frauds, statute of limitations, waiver, lack of
jurisdiction over the subject-matter, lack of jurisdiction over the
person, improper venue, insufficiency of process or service of
process, the same action pending in another state court of this
state, and any other matter constituting an avoidance, matter of
abatement, or affirmative defense. A party required to
affirmatively plead any matters, including matters formerly
required to be pleaded affirmatively by reply, shall have the
burden of proving such matters. The burden of proof imposed by
this or any other provision of these rules is subject to the rules of
evidence or any statute fixing a different rule. If the pleading
mistakenly designates a defense as a counterclaim or a
counterclaim as a defense, the court shall treat the pleading as if
there had been a proper designation.
When discussing Trial Rule 8(C), our supreme court has explained that “[t]he
list of affirmative defenses contained in the Rule is not exhaustive” and that “a
party seeking the benefit of an affirmative defense must raise and specifically
plead that defense or it is waived.” Willis v. Westerfield, 839 N.E.2d 1179, 1185
(Ind. 2006).
[16] Here, when Mt. Zion filed its answer, it alleged, as one of its affirmative
defenses against Blackmon’s wrongful death and survival claims, that
Blackmon “lacked standing to bring any of the claims she [wa]s bringing.”
(App. Vol. 2 at 55). Blackmon acknowledges that Mt. Zion raised lack of
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standing as a defense in its answer, but she contends that this defense was not
specific enough or was not “specifically plead.” (Blackmon’s Br. 13). She
suggests that “[m]ore appropriate or acceptable examples” would include the
following: (1) “the Plaintiff is not (or is not known to be) the Personal
Representative of the decedent, and therefore lacks standing under the wrongful
death and survival statutes to bring and maintain the current action[;]” or (2)
“the Plaintiff lacks the standing required under the wrongful death and survivor
statutes to bring claims on behalf of the decedent.” (Blackmon’s Br. 12). She
contends, without citation to relevant authority, that the lack of extra detail
resulted in waiver of the defense and precluded Mt. Zion from raising the
affirmative defense in its summary judgment motion.
[17] Mt. Zion raised and specifically plead a lack of standing defense in its answer.
It did not raise this defense for the first time in summary judgment. Thus, we
conclude that Blackmon’s argument is without merit. 7 Accordingly, we affirm
the trial court’s grant of partial summary judgment to Mt. Zion on Blackmon’s
wrongful death and survival claims (Counts 1 through 7), and we remand this
case for further proceedings on the pending emotional distress claims (Counts 8
and 9).
7
We also reject Blackmon’s contention that Mt. Zion waived its lack of standing affirmative defense to her
wrongful death and survival claims (Counts 1 through 7) because its answer did not specifically address her
emotional distress claims (Count 8 and 9) in her amended complaint. She makes no cogent argument to
support this contention, and we will not address it further. See Ind. App. R. 46(A)(8).
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[18] Affirmed and remanded for further proceedings.
Kirsch, J., and Bailey, J., concur.
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