Connie Davis-Brumley v. Fair Oaks Farms, LLC ( 2024 )

IN THE
Court of Appeals of Indiana
Connie Davis-Brumley, as Mother of Decedent, FILED
Appellant-Plaintiff, Feb 29 2024, 8:50 am
CLERK
Indiana Supreme Court
v. Court of Appeals
and Tax Court
Fair Oaks Farms, LLC; Fair Oaks Hospitality, LLC, and
Farmhouse Restaurant, LLC,
Appellants-Defendants.
February 29, 2024
Court of Appeals Case No.
23A-CT-1610
Appeal from the Lake Superior Court
The Honorable Rehana R. Adat-Lopez, Judge
Trial Court Cause No.
45D10-2210-CT-982
Opinion by Judge Tavitas
Judges Mathias and Weissmann concur.
Court of Appeals of Indiana | Opinion 23A-CT-1610 | February 29, 2024 Page 1 of 12
Tavitas, Judge.
Case Summary
[1] Connie Davis-Brumley filed a wrongful death action against Fair Oaks Farms,
LLC; Fair Oaks Hospitality, LLC; Farmhouse Restaurant, LLC (collectively
“Fair Oaks”); and Samantha Kunkel (all collectively “Defendants”) based on
the death of her son, Justin M. Davis (“Justin”). Davis-Brumley originally filed
the action as natural mother of Justin, and she petitioned the probate court to
be appointed as special administratrix of Justin’s estate (“the Estate”) the same
day that she filed her wrongful death complaint. The next day, one day after
the two-year period for the filing of the wrongful death action elapsed, the
probate court granted Davis-Brumley’s petition to be appointed as special
administratrix. Thereafter, in the wrongful death action, Davis-Brumley filed a
motion to substitute the Estate as plaintiff. Fair Oaks then filed a motion to
dismiss the complaint on the grounds that the wrongful death action was not
brought by the personal representative of the Estate within the statutory two-
year filing period of the Wrongful Death Act.
[2] The trial court entered an order granting the motion to dismiss and denying the
motion to substitute. Davis-Brumley appeals and argues: (1) the wrongful
death action was timely filed because Davis-Brumley petitioned to be appointed
as special administratrix of the Estate within the two-year filing period, and
therefore, the trial court erred by granting the motion to dismiss; and (2) the
trial court erred by denying the motion to substitute because the trial court’s
Court of Appeals of Indiana | Opinion 23A-CT-1610 | February 29, 2024 Page 2 of 12
ruling thereon was based on its allegedly erroneous ruling on the motion to
dismiss. We are not persuaded by these arguments. Accordingly, we affirm.
Issue
[3] Davis-Brumley raises two issues on appeal, which we consolidate and restate as
whether Davis-Brumley’s wrongful death action was timely filed when she
petitioned to be appointed as special administratrix of the Estate within the two-
year filing period of the Wrongful Death Act but the petition was not granted
until after that period elapsed.
Facts
[4] On October 3, 2020, Justin was involved in an automobile accident with
Kunkel in Lake County. Justin died as a result of the accident, and Kunkel was
seriously injured. In June 2021, a supervised estate was opened for the limited
purpose of accepting service of Kunkel’s claims against the Estate, and an
employee of Kunkel’s attorney was named as the special administratrix at that
time. Kunkel then filed a personal injury lawsuit against the Estate and Fair
Oaks.
[5] On October 3, 2022, Davis-Brumley filed a wrongful death action against
Defendants “as natural mother of” Justin. Appellant’s App. Vol. II p. 11.
According to the complaint, on October 3, 2020, Justin was a “visitor,
customer, and/or business invitee” of Fair Oaks, and Fair Oaks “knew or
should have known that [Justin] was intoxicated, furnished him alcoholic
Court of Appeals of Indiana | Opinion 23A-CT-1610 | February 29, 2024 Page 3 of 12
beverages, and allowed him to operate a motor vehicle leaving the premises.”
Id. at 12-13. The complaint alleged that Fair Oaks’s conduct caused Justin to
be involved in the accident with Kunkel later that evening. 1
[6] On the same day that Davis-Brumley filed her wrongful death action, she filed a
petition in the probate court seeking to be appointed as special administratrix of
the Estate and seeking leave to pursue the wrongful death action in the Estate’s
name. The next day, October 4, 2022, the probate court granted Davis-
Brumley’s petition.
[7] On October 23, 2022, Davis-Brumley filed a motion to substitute the Estate for
Davis-Brumley as the plaintiff in the wrongful death action. Then, on
December 13, 2022, Fair Oaks filed a motion to dismiss the wrongful death
complaint for failure to state a claim pursuant to Trial Rule 12(B)(6). 2 Fair
Oaks argued that the complaint failed to state a claim because Davis-Brumley
did not obtain status as special administratrix of the Estate until October 4,
2022; and thus, pursuant to the Wrongful Death Act, the complaint was not
1
The complaint also alleged a count of negligence against Kunkel, which Davis-Brumley later moved to
dismiss.
2
Fair Oaks previously filed a motion to dismiss on December 8, 2022; however, that motion was dismissed
for failure to comply with the local rule requiring the separate filing of supporting briefs.
Court of Appeals of Indiana | Opinion 23A-CT-1610 | February 29, 2024 Page 4 of 12
brought by the “personal representative” of the Estate within two years of
Justin’s death. Id. at 34.
[8] Davis-Brumley objected to the motion and argued that the wrongful death
action was timely filed because her appointment as special administratrix
“relate[s] back” to the date that she petitioned for this status, October 3, 2022.
Id. at 58. Fair Oaks filed a reply and argued that the relation-back doctrine was
inapplicable.
[9] The trial court held a hearing on the motion to dismiss and motion to substitute
on May 25, 2023. After taking the matter under advisement, the trial court, on
June 14, 2023, issued an order granting the motion to dismiss and denying the
motion to substitute. Davis-Brumley now appeals.
Discussion and Decision
[10] Davis-Brumley argues that the trial court erred by: (1) dismissing the wrongful
death complaint; and (2) denying the motion to substitute. We conclude that
Davis-Brumley has not carried her burden of persuasion.
[11] Our standard of review regarding a motion to dismiss is as follows:
“A motion to dismiss for failure to state a claim tests the legal
sufficiency of the claim, not the facts supporting it.” Babes
Showclub, Jaba, Inc. v. Lair, 918 N.E.2d 308, 310 (Ind. 2009).
Review of a trial court’s grant or denial of a motion based on
a Trial Rule 12(B)(6) motion to dismiss is therefore de
novo. Id. When reviewing a motion to dismiss, we view the
Court of Appeals of Indiana | Opinion 23A-CT-1610 | February 29, 2024 Page 5 of 12
pleadings in the light most favorable to the nonmoving party,
with every reasonable inference construed in the nonmovant’s
favor. Id. In ruling on such a motion to dismiss, a court is
required to take as true all allegations upon the face of the
complaint and may only dismiss if the plaintiff would not be
entitled to recover under any set of facts admissible under the
allegations of the complaint. Meyers v. Meyers, 861 N.E.2d 704,
705 (Ind. 2007).
Parsley v. MGA Fam. Grp., Inc., 103 N.E.3d 651, 654 (Ind. Ct. App. 2018), reh’g
denied.
[12] The Wrongful Death Act provides, in relevant part: “[W]hen 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. Two aspects of this statute are critical in the
case before us. The first aspect is rather straightforward: “the only proper
plaintiff” in an action under the Wrongful Death Act is the “personal
representative” of the decedent. Robertson v. Gene B. Glick Co., Inc., 960 N.E.2d
179, 184 (Ind. Ct. App. 2011) (citing Gen. Motors Corp. v. Arnett, 418 N.E.2d
546, 548 (Ind. Ct. App. 1981)), trans. denied. “‘A special administratrix is a type
of personal representative who is appointed for a special purpose with limited
powers and duties.’” In re Estate of Hutman, 705 N.E.2d 1060, 1063 (Ind. Ct.
App. 1999) (citing Pope ex rel. Smith v. Pope, 701 N.E.2d 587, 589 (Ind. Ct. App.
1998)). A special administratrix may pursue a wrongful death action if
appointed for that purpose. Id. at 1064 (citing Pope ex rel. Smith v. Pope, 701
N.E.2d 587, 590 (Ind. Ct. App. 1998)); see also Ind. Code § 29-1-10-15(a)(5)
Court of Appeals of Indiana | Opinion 23A-CT-1610 | February 29, 2024 Page 6 of 12
(authorizing the appointment of a special administrator to pursue “damages for
a decedent’s wrongful death”).
[13] The second relevant aspect of the Wrongful Death Act concerns the time frame
in which to bring an action thereunder. The action must be brought by the
personal representative of the decedent’s estate within the prescribed two-year
filing period, otherwise “‘no enforceable right of action is created.’” Brugh v.
Milestone Contractors, LP, 202 N.E.3d 1091, 1095 (Ind. Ct. App. 2023) (quoting
Blackford v. Welborn Clinic, 172 N.E.3d 1219, 1224 (Ind. 2021)), trans. denied.
This is because the Wrongful Death Act is a “non-claim statute,” as the right to
bring a wrongful death action is “purely statutory” and did not exist under the
common law. Id. (citing Blackford, 172 N.E.3d at 1224; Arnett, 418 N.E.2d at
548).
[14] Unlike statutes of limitation, which “‘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. (quoting Blackford, 172
N.E.3d at 1224). Because filing within the statutory period is a condition
precedent to the enforcement of a non-claim statute, “‘[n]on-claim statutes
generally are not subject to equitable exceptions.’” Id. (quoting Blackford, 172
N.E.3d at 1224) (brackets in original); see also Mann v. Arnos, 186 N.E.3d 105,
116 n.5 (Ind. Ct. App. 2022) (“A ‘nonclaim statute creates a right of action if
commenced within the statutory period, whereas a statute of limitation creates
a defense to an action brought after the expiration of the statutory period.’”
Court of Appeals of Indiana | Opinion 23A-CT-1610 | February 29, 2024 Page 7 of 12
(quoting Biedron v. Anonymous Physician 1, 106 N.E.3d 1079, 1089 n.6 (Ind. Ct.
App. 2018), trans. denied)), trans. denied.
[15] Here, Davis-Brumley did not file her wrongful death action as special
administratrix of the Estate within the Wrongful Death Act’s two-year filing
period. Although Davis-Brumley filed the wrongful death action on October 3,
2022, two years to the day after Justin’s death, Davis-Brumley was not the
special administratrix of the Estate at the time. Davis-Brumley did petition to
be appointed as special administratrix of the Estate on the same day that she
filed the wrongful death action; however, the probate court did not grant that
petition until the following day, October 4, 2022, which was after the filing
period elapsed. Davis-Brumley then filed a motion to substitute the Estate for
Davis-Brumley as the plaintiff in the wrongful death action on October 23,
2022. On June 14, 2023, the trial court entered its order dismissing the
wrongful death complaint and denying the motion to substitute.
[16] Davis-Brumley argues that she timely filed the wrongful death action because
she petitioned to be appointed as special administratrix within the two-year
filing period, regardless of when that petition was ultimately granted. Our cases
do not appear to have addressed this exact argument. We have, however,
emphasized that, if the person filing the wrongful death action is not the
personal representative of the decedent’s estate, the person must obtain “the
legal status of personal representative . . . within the two-year timeframe” for
the claim to be actionable. Brugh, 202 N.E.3d at 1097 (citing Rogers v. Grunden,
589 N.E.2d 248 (Ind. Ct. App. 1992, trans. denied); Faris v. AC and S., Inc., 842
Court of Appeals of Indiana | Opinion 23A-CT-1610 | February 29, 2024 Page 8 of 12
N.E.2d 870 (Ind. Ct. App. 2006), reh’g denied). Davis-Brumley did not do so
here.
[17] We addressed an argument similar to Davis-Brumley’s in General Motors
Corporation v. Arnett, 418 N.E.2d 546 (Ind. Ct. App. 1981). In Arnett, the
decedent’s wife filed an action under the Wrongful Death Act within two years
of the decedent’s death; however, the wife did not obtain status as personal
representative of the decedent’s estate until four months after the filing period
elapsed. 418 N.E.2d at 547-48. The trial court, accordingly, dismissed the
complaint. Id.[18] On appeal, the wife argued, in part, that Trial Rule 15(C) 3 “allow[ed] her
belated appointment as personal representative to relate back to the date on
which she filed her complaint.” Id. at 548. A panel of this Court first stated
that Trial Rule 15(C) did not apply because the wife did not amend her
complaint, “rather it was her legal status which was altered.” Id. at 548. The
Court further declined to exercise equity and apply the “rationale” of Trial Rule
3
Trial Rule 15(C) provides, in relevant part:
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.
Court of Appeals of Indiana | Opinion 23A-CT-1610 | February 29, 2024 Page 9 of 12
15(C) to allow the “appointment [as personal representative] itself [to] relate
back” because the Wrongful Death Act’s two-year filing period is a “condition
precedent” to the right to an action thereunder and not merely a statute of
limitation. Id. Accordingly, this Court affirmed the dismissal of the complaint.
Id.; see also Hosler ex rel. Hosler v. Caterpillar, Inc., 710 N.E.2d 193, 197-98 (Ind.
Ct. App. 1999) (following Arnett and holding that Trial Rule 15(C) “may not be
used to save [a] wrongful death claim from dismissal” when the plaintiff fails to
timely file the action as personal representative of the decedent’s estate), trans.
denied.
[19] Davis-Brumley, however, relies on Magic Circle v. Schoolcraft, 4 N.E.3d 768 (Ind.
Ct. App. 2014), aff’d sub nom, Camoplast Crocker, LLC v. Schoolcraft, 12 N.E.3d
251 (Ind. 2014), which we find distinguishable. In that case, the personal
representative timely filed a wrongful death action and, before the filing period
elapsed, moved to amend the complaint to add new defendants. Magic Circle, 4
N.E.3d at 769. The trial court, however, did not grant the motion until after the
filing period elapsed, and the new defendants subsequently moved to dismiss
the claims against them as untimely. Id. On appeal, a panel of this Court held
that the claims were timely filed under Trial Rule 15(C) because the date that
the motion to amend was filed was the controlling date rather than the date of
the trial court’s ruling thereon. Id. at 771-72.
[20] Davis-Brumley argues that we should expand our holding in Magic Circle to
hold that the wrongful death action was timely filed because she petitioned to
be appointed as special administratrix of the Estate before the Wrongful Death
Court of Appeals of Indiana | Opinion 23A-CT-1610 | February 29, 2024 Page 10 of 12
Act’s filing period elapsed. For the reasons articulated in Arnett, we decline to
extend Magic Circle here. Magic Circle concerned Trial Rule 15(C), which is
inapplicable here because Davis-Brumley seeks to relate back her legal status as
special administratrix, not her underlying claims. Furthermore, the Wrongful
Death Act’s filing period cannot be tolled in the equitable spirit of Trial Rule
15(C) because the two-year filing period is a “condition precedent” to an action
under the Act. Brugh, 202 N.E.3d at 1095. And, although Davis-Brumley seeks
to have her status as special administratrix relate back to the date that she
petitioned for this status rather than the date that she filed her complaint, that
distinction makes little difference based on the principles Arnett announced. See
id. (“Non-claim statutes generally are not subject to equitable exceptions.”
(quotation omitted)).
[21] Davis-Brumley cites no other authority which would permit her status as
special administratrix to relate back to an earlier date. She also does not argue
that any of the recognized tolling exceptions to the Wrongful Death Act’s two-
year filing period apply. See, e.g., Alldredge v. Good Samaritan Home, Inc., 9
N.E.3d 1257, 1264-65 (Ind. 2014) (fraudulent concealment); Brugh, 202 N.E.3d
at 1097-98 (Covid-19 tolling orders).
[22] We are, therefore, constrained to follow the general rule that the two-year filing
period for an action under the Wrongful Death Act cannot be tolled. Because
Davis-Brumley did not file her wrongful death action as special administratrix
or personal representative of the Estate within two years of Justin’s death, her
complaint fails to state a claim upon which relief can be granted. Accordingly,
Court of Appeals of Indiana | Opinion 23A-CT-1610 | February 29, 2024 Page 11 of 12
the trial court did not err by dismissing the wrongful death complaint or by
denying the motion to substitute the Estate as the plaintiff in the action.
Conclusion
[23] The trial court did not err by dismissing the wrongful death complaint, nor did
it err by denying the motion to substitute. Accordingly, we affirm the judgment
of the trial court.
[24] Affirmed.
Mathias, J., and Weissmann, J., concur.
ATTORNEY FOR APPELLANT
Arman G. Sarkisian
Sarkisian, Sarkisian, & Associates, P.C.
Portage, Indiana
ATTORNEY FOR APPELLEE
Philip F. Cuevas
Litchfield Cavo LLP
Chicago, Illinois
Court of Appeals of Indiana | Opinion 23A-CT-1610 | February 29, 2024 Page 12 of 12