Brugh v. Milestone Contractors, LP

202 N.E.3d 1091

Aaron BRUGH, Appellant-Plaintiff,

v.MILESTONE CONTRACTORS, LP, Appellee-Defendant.

Court of Appeals Case No. 22A-CT-845

Court of Appeals of Indiana.

Filed January 11, 2023

Attorneys for Appellant: Glen E. Koch, II, Martinsville, Indiana, Bryan H. Babb, Bradley M. Dick, Seema R. Shah, Bose McKinney & Evans, Indianapolis, Indiana

Attorneys for Appellee: John W. Mervilde, Neil A. Davis, Davis Mervilde Sumerford Dietz, Indianapolis, Indiana

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Plaintiff, Aaron Brugh (Aaron), by and through surviving spouse, Rachelle Brugh (Brugh), appeals the trial court's entry of Orders and Judgment, in which the trial court denied Brugh's motion to substitute real party in interest and granted Appellee-Defendant's, Milestone Contractors LP (Milestone), motion to strike appearance of nonparty and motion for judgment on the pleadings, thereby terminating Brugh's wrongful death action against Milestone.

[2] We reverse and remand for further proceedings.

ISSUE

[3] Brugh presents two issues on appeal, which we consolidate and restate as: Whether Brugh timely substituted herself as the real party of interest in light of our supreme court's tolling of time limits in response to the COVID-19 pandemic.

FACTS AND PROCEDURAL HISTORY

[4] On October 9, 2019, Aaron died in a rear-end collision on State Road 67 in Morgan County, Indiana. On January 26, 2021, Brugh, as Aaron's surviving spouse, filed a wrongful death Complaint against Milestone, alleging that Milestone's backup in construction traffic due to lane closures, funneling of traffic, and warning practices caused or contributed to Aaron's death. Between Aaron's death and the filing of the wrongful death action on January 26, 2021, the Indiana Supreme Court issued multiple orders concerning the COVID-19 pandemic after Governor Holcomb declared a public health emergency in Indiana.

[5] On March 16, 2020, the supreme court issued its first of several COVID-19 orders, in which the court invited the trial courts to "consider" petitioning for "[t]olling for a limited time all laws, rules, and procedures setting time limits for speedy trials [ ]; and in all other civil and criminal matters before all State of Indiana trial courts." (Appellant's App. Vol. II, p. 92). The Morgan County courts accepted the supreme court's invitation the following day and filed a "petition for relief under Indiana Administrative Rule 17," in which they proposed to toll various deadlines and time limits through April 10, 2020. (Appellant's App. Vol. II, pp. 95-96). On March 18, the Indiana Supreme Court approved Morgan County's emergency plan retroactively to March 17, 2020.

[6] Over the subsequent weeks, the Indiana Supreme Court issued various orders, extending the relief it had previously granted. On April 3, 2020, the supreme court extended "the effective date of all orders granting emergency relief to trial courts under Administrative Rule 17, including but not limited to tolling of time limits," to May 4, 2020. (Appellant's App. Vol. II, p. 102). The Indiana Supreme Court's April 24, 2020 order, using similar language, extended the emergency relief granted to trial courts until May 17, 2020. On May 13, 2020, the supreme court again extended emergency relief to trial courts until May 30, 2020, and for the final time reiterated that all existing orders "under Administrative Rule 17 remain in full force and effect." (Appellant's App. Vol. II, p. 112).

[7] On May 29, 2020, the Indiana Supreme Court, without mentioning statutory time limitations, authorized "the tolling, through August 14, 2020, of all laws, rules, and procedures setting time limits for speedy trials in criminal and juvenile proceedings; public health and mental health matters; all judgments, support, and other orders; and in all other civil and criminal matters before Indiana trial courts." (Appellant's App. Vol. II, p. 113). At the same time, the Morgan County courts filed their "amended transition plan for expanded operations," pursuant to which all provisions of the Administrative Rule 17 emergency plan would terminate on July 6, 2020. (Appellant's App. Vol. II, p. 121). The supreme court approved Morgan County's amended transition plan retroactive to May 29, 2020.

[8] On January 11, 2022, approximately a year after she commenced the wrongful death action, Brugh filed a petition for appointment of personal representative of Aaron's estate and was appointed to this capacity by the court on January 18, 2022. On January 24, 2022, Milestone filed its motion for judgment on the pleadings, alleging in its supporting brief that the wrongful death action had not been instituted by the personal representative of the estate within two years of Aaron's passing, as required by statute. On February 8, 2022, Brugh filed a motion to substitute real party in interest, to which Milestone responded on the same day by moving to strike Brugh's appearance as personal representative for Aaron's estate. On February 22, 2022, Milestone filed a brief in opposition to the motion to substitute. On March 3, 2022, the trial court conducted a hearing on the parties’ pending motions. On March 18, 2022, the trial court issued its entry of Orders and Judgment, in which it concluded that Brugh's motion to substitute real party in interest was untimely, and granted Milestone's motion to strike Brugh's appearance as personal representative of the estate and motion for judgment on the pleadings.

[9] Brugh now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

[10] Contending that in light of the tolled time limitations due to the COVID-19 pandemic, she timely filed her motion to substitute real party in interest in which she requested to appear as personal representative of Aaron's estate, Brugh challenges the trial court's dismissal of the wrongful death action pursuant to Indiana Trial Rule 12(C).

I. Standard of Review

[11] A motion for judgment on the pleadings pursuant to Indiana Trial Rule 12(C) attacks the legal sufficiency of the pleadings. Davis ex rel. Davis v. Ford Motor Co. , 747 N.E.2d 1146, 1149 (Ind. Ct. App. 2001), trans. denied. In reviewing a trial court's decision on a motion for judgment on the pleadings, this court conducts a de novo review. Id. The test to be applied when ruling on an Ind. T.R. 12(C) motion is whether, in the light most favorable to the non-moving party and with every intendment regarded in his favor, the complaint is sufficient to constitute any valid claim. Id. This court will affirm the trial court's grant of a T.R. 12(C) motion for judgment on the pleadings when it is clear from the face of the pleadings that one of the parties cannot in any way succeed under the operative facts and allegations made therein. Id.

[12] Brugh initially contended that the trial court should have characterized Milestone's motion on the pleadings as a motion for summary judgment because the trial court, in reaching its conclusion, considered matters outside the pleadings. See Steele v. McDonald's Corp. , 686 N.E.2d 137, 141 (Ind. Ct. App. 1997) (when "a motion for judgment on the pleadings is predicated upon matters extraneous to the pleadings, the motion should be treated in the same manner as a motion for summary judgment"), trans. denied. In applying T.R. 12(C), "the court may look only at the pleadings, with all well-pleaded material facts alleged in the complaint taken as admitted, supplemented by any facts of which the court will take judicial notice." Davis , 747 N.E.2d at 1149. Pursuant to Indiana Evidence Rule 201, a court may take judicial notice of a fact that "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned" or that is contained in "records of a court of this state." Mindful of this evidentiary rule, Brugh conceded—and we agree—that the trial court was entitled to take judicial notice of the Indiana Supreme Court's COVID-19 orders. In her reply brief, and after reflection, Brugh likewise admitted that the trial court was allowed to take judicial notice of the docket in Aaron's estate case. Accordingly, we shall analyze the trial court's entry of Orders and Judgment de novo within the confines of a T.R. 12(C) review.

II. Analysis

A. Indiana's Wrongful Death Statute

[13] Indiana's Wrongful Death Statute (IWDS) provides that

[w]hen the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he or she, as the case may be, lived, against the latter for an injury for the same act or omission. When the death of one is caused by the wrongful act or omission of another, the action shall be commenced by the personal representative of the decedent within two (2) years[.]

Ind. Code § 34-23-1-1. The right to maintain an action for wrongful death did not exist at common law and is therefore purely statutory. Gen. Motors Corp. v. Arnett , 418 N.E.2d 546, 548 (Ind. Ct. App. 1981). Because this is a statutory right, the two-year time period within which the action must be commenced by the personal representative is a "condition attached to the right to sue." Id. (citing Bocek v. Inter-Insurance Exchange of Chicago Motor Club, 175 Ind.App. 69, 369 N.E.2d 1093, 1097 (1977) ). As the IWDS creates an enforceable right of action, "unknown to the common law," only if commenced within the prescribed timeframe, the statute is regarded as a non-claim statute. Blackford v. Welborn Clinic , 172 N.E.3d 1219, 1224 (Ind. 2021). While "statutes of limitation create defenses that must be pleaded and may be waived," a non-claim statute is self-executing and "imposes a condition precedent to the enforcement of a right of action." Id. (citing Bahr v. Zahm , 219 Ind. 297, 37 N.E.2d 942, 944 (1941) ). Unless a party files a claim within the prescribed time, "no enforceable right of action is created."...