Benjamin S. Smith v. Franklin Township Community School Corp.

FILED
Nov 06 2019, 8:38 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
James R. Fisher Kevin S, Smith
Debra H. Miller Alexander P. Pinegar
Miller & Fisher, LLC Church, Church, Hittle & Antrim
Indianapolis, Indiana Noblesville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Benjamin S. Smith, November 6, 2019
Appellant-Plaintiff, Court of Appeals Case No.
19A-CT-1244
v. Appeal from the Marion Superior
Court
Franklin Township Community The Hon. James A. Joven, Judge
School Corp., Trial Court Cause No.
49D13-1810-CT-42794
Appellee-Defendant.
Bradford, Judge.
Court of Appeals of Indiana | Opinion 19A-CT-1244 | November 6, 2019 Page 1 of 9
Case Summary
[1] In January of 2016, Benjamin Smith’s vehicle collided with a school bus owned
and operated by the Franklin Township School Corporation (“the School”) in
Indianapolis, causing him injury. In March of 2016, pursuant to the Indiana
Tort Claims Act (“ITCA”), Smith sent notice to the School of his intent to file a
tort claim (“the ITCA Notice”). On July 1, 2018, the Claims Against Public
Schools Act (“CAPSA”) became law, governing all civil actions or
administrative proceedings brought against public schools and which includes
its own notice provisions.
[2] In October of 2018, Smith filed a negligence suit against the School, which
moved to dismiss Smith’s complaint on the basis that he had failed to provide
CAPSA notice prior to filing. On January 29, 2019, the trial court dismissed
Smith’s complaint without prejudice. By this time, however, the relevant
statute of limitations had run, preventing him from simply refiling. On March
29, 2019, Smith moved for his complaint to be reinstated pursuant to Indiana
Trial Rule 41(F). On May 9, 2019, the trial court denied Smith’s motion to
reinstate. As restated, Smith contends that the trial court abused its discretion
in denying his motion to reinstate because (1) CAPSA does not apply to his
claim and (2) the ITCA Notice also satisfied the notice requirements of CAPSA
in any event. Because we conclude that CAPSA does not apply to Smith’s
claim against the School, we need not reach his second claim and reverse and
remand with instructions.
Facts and Procedural History
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[3] On January 7, 2016, Smith was involved in a collision between his vehicle and
a school bus owned and operated by the School, suffering injuries. Smith sent
the School an ITCA Notice on March 15, 2016, via certified mail. On July 1,
2018, CAPSA became law, governing all civil actions or administrative
proceedings “brought against a public school under the laws of […] the United
States [] or […] Indiana.” Ind. Code § 34-13-3.5-1; see generally Ind. Code ch.
34-13-3.5. CAPSA requires, inter alia, that a potential plaintiff give notice of a
civil lawsuit to a public school before it can be initiated, which notice must
include a request for relief and an opportunity for the school to respond. On
October 24, 2018, nine days prior to the running of the relevant statute of
limitations, Smith filed a negligence complaint against the School, prior to
which he did not provide the School with a separate CAPSA notice.
[4] On December 26, 2018, the School moved to dismiss Smith’s complaint on the
basis that he had failed to provide CAPSA notice prior to filing his complaint.
On or about January 14, 2019, Smith sent a letter to the School demanding
$500,000.00 to settle his claim and asking for a response within fifteen days.
On January 29, 2019, the trial court dismissed Smith’s complaint without
prejudice. By this time, however, the relevant statute of limitations had run.
[5] On March 29, 2019, Smith moved for his complaint to be reinstated pursuant to
Indiana Trial Rule 41(F). Smith alleged, inter alia, that “[p]ursuant to Trial
Rule 41, good cause exist[ed] to reinstate this matter and for all other relief just
and proper in the premises[.]” Appellant’s App. Vol. II p. 18. On April 15,
2019, the School responded, alleging that Smith had failed to establish good
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cause to reinstate his complaint because he had not established compliance with
CAPSA’s notice requirement. The same day, Smith filed a second motion to
reinstate his complaint. On May 8, 2019, Smith filed a memorandum in
support of his second motion to reinstate, arguing that (1) the notice
requirements of ITCA are the only ones that apply to this case, (2) the ITCA
Notice satisfied those requirements and (3) dismissal for failure to comply with
the recently-enacted CAPSA’s notice requirements would be “harsh and […]
against the interest of justice.” Appellant’s App. p. 44. Smith noted that
CAPSA “did not even exist at the time notice was given, and only came to be
mere months prior to the suit being filed.” Appellant’s App. p. 44. On May 9,
2019, the trial court denied Smith’s motion to reinstate.
Discussion and Decision
[6] Smith is appealing from the trial court’s denial of his motion to reinstate his
negligence suit against the School. Indiana Trial Rule 41(F) provides that “[f]or
good cause shown and within a reasonable time the court may set aside a
dismissal without prejudice.” We review a trial court’s ruling on a motion to
reinstate an involuntary dismissal for an abuse of discretion. Cloyd v. Pasternak,
791 N.E.2d 757, 758 (Ind. Ct. App. 2003). “Judicial discretion has been
defined as a judge’s privilege to decide and act in accordance with what is fair
and equitable within the confines of justice.” Id. at 759. “Our review of an
exercise of judicial discretion must be made in light of and confined to the facts
and circumstances of a particular case.” Id. We will uphold the trial court’s
decision unless it “is clearly against the logic and effect of the facts and
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circumstances before it or if the court has misinterpreted the law.” Natare Corp.
v. Cardinal Accts., Inc., 874 N.E.2d 1055, 1058 (Ind. Ct. App. 2007).
I. ITCA
[7] The parties seem to agree that ITCA applies to Smith’s claim, with the School
arguing only that Smith has failed to establish that the ITCA Notice satisfied
the notice requirements of ITCA, pointing out that the ITCA Notice does not
appear in the record on appeal. For his part, Smith points out that the School
did not claim below that he failed to give it ITCA notice, and “[f]ailure to give
notice is a defense that a political subdivision must assert in its answer to a
plaintiff’s complaint.” Fowler v. Brewer, 773 N.E.2d 858, 862 (Ind. Ct. App.
2002), trans. denied.1 Because the School has raised alleged deficiency of ITCA
notice for the first time on appeal, the claim is waived for appellate
consideration. See, e.g., Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004)
(“[A] trial court cannot be found to have erred as to an issue or argument that it
never had an opportunity to consider. Accordingly, as a general rule, a party
may not present an argument or issue on appeal unless the party raised that
argument or issue before the trial court. In such circumstances the argument is
waived.”) (citations omitted). Under the circumstances, we consider the ITCA
1
The ITCA Notice’s absence from the record is almost certainly due to the School’s failure to challenge it
below, as this obviated any need for Smith to produce it.
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Notice’s compliance with the notice requirements of ITCA to be conclusively
established.2
II. CAPSA
[8] The next question, then, is whether CAPSA also applies to Smith’s claim, with
the School claiming that it applies and Smith claiming that it does not. CAPSA
governs all “civil action[s] or […] administrative proceeding[s] against a public
school[.]” Ind. Code § 34-13-3.5-4. As for notice requirements, CAPSA
provides that an individual may not initiate a civil or administrative action
against a public school unless the individual first submits a written notice to the
public school and its governing body that notifies them “of the alleged violation
of law and indicates a proposed remedy.” Ind. Code § 34-13-3.5-4. The public
school has fifteen days to consider and either “[r]emedy the alleged violation or
violations [or m]ake a written offer to the individual or entity to resolve the
dispute.” Ind. Code § 34-13-3.5-6. If a plaintiff does not comply with CAPSA’s
pre-suit notice requirements, the lawsuit is subject to dismissal without
prejudice. Ind. Code § 34-13-3.5-7.
[9] Smith contends, inter alia, that applying CAPSA’s provisions to his lawsuit
would be an impermissible retroactive application. As an initial matter, the
School claims that Smith has failed to preserve his retroactivity argument. “As
2
The School has filed motions to strike sections of Smith’s Brief of Appellant and Reply Brief referring to the
ITCA Notice, which, as mentioned, does not appear in the record. Because we have concluded that the
ITCA Notice’s compliance has been conclusively established, however, we need not address these motions
on their merits. We deny, as moot, both of the School’s motions to strike in an order to be issued
contemporaneously with this opinion.
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a general rule, a party may not present an argument or issue to an appellate
court unless the party raised that argument or issue to the trial court.” GKC Ind.
Theatres, Inc. v. Elk Retail Inv’rs, LLC., 764 N.E.2d 647, 651 (Ind. Ct. App. 2002).
“The rule of waiver in part protects the integrity of the trial court; it cannot be
found to have erred as to an issue or argument that it never had an opportunity
to consider.” Id.[10] Under the circumstances, we conclude that Smith did more than enough to
provide the trial court with an opportunity to rule on the question of
retroactivity, thereby preserving it for appellate review. In Smith’s second
motion to reinstate his complaint against the School, he argued, inter alia, that
dismissal for failure to comply with CAPSA’s notice requirements would be
“harsh and […] against the interest of justice[,]” noting that CAPSA “did not
even exist at the time [ITCA] notice was given, and only came to be mere
months prior to the suit being filed.” Appellant’s App. p. 44. Although Smith
did not use the word “retroactive,” his argument is essentially that CAPSA
should not apply to his claim against the School because it was not yet the law
when the claim accrued. We would be elevating form over substance if we
ignored the fact that this is a retroactivity argument in all but name, and
therefore choose to address it on the merits. State ex rel. Att’y Gen. v. Lake Super.
Ct., 820 N.E.2d 1240, 1252 (Ind. 2005) (“We are unwilling to fortify the armory
of those who attack the law as famous for its ability to elevate form over
substance.”).
[11] Whether a statute or amendment is to be applied retroactively to
pending cases or only prospectively depends upon the legislature’s
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intent. Absent an express indication otherwise, we presume that
the legislature intends statutes and amendments to apply
prospectively. Brane v. Roth, 590 N.E.2d 587, 590 (Ind. Ct. App.
1992), reh’g denied, trans. denied; Turner v. Town of Speedway, 528
N.E.2d 858, 863 (Ind. Ct. App. 1988). Strong and compelling
reasons must exist for retroactive application. Gosnell v. Indiana
Soft Water Service, 503 N.E.2d 879, 880 (Ind. 1987).
Chesnut v. Roof, 665 N.E.2d 7, 9 (Ind. Ct. App. 1996). In determining whether a
statute applies retroactively, “the court must ask whether the new provision
attaches new legal consequences to events completed before its enactment.”
Landgraf v. USI Film Prod., 511 U.S. 244, 270–71 (1994).
[12] We have little trouble concluding that Smith’s retroactivity argument has merit.
Applying CAPSA’s notice requirements to Smith’s claim would be to attach
new legal consequences to an event that occurred before CAPSA was the law,
i.e., retroactively. There is, however, no indication whatsoever that the General
Assembly intended CAPSA to apply retroactively, much less an express
indication. We must therefore presume that only prospective application was
intended. Because we conclude that applying CAPSA to Smith’s claim would
amount to an impermissible retroactive application, we need not address the
other grounds on which he argues that CAPSA does not apply here or his claim
that the ITCA Notice satisfied CAPSA’s notice requirements.
Conclusion
[13] We conclude that the compliance of Smith’s claim with ITCA notice
requirements has been conclusively established. We further conclude that
CAPSA does not apply to Smith’s claim, as that would constitute retroactive
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and, in this case, impermissible application of CAPSA. Because the trial court
never should have dismissed Smith’s claim for failing to satisfy CAPSA, we
conclude that it abused its discretion in failing to find good cause to reinstate it.
[14] We reverse the judgment of the trial court and remand with instructions to
reinstate Smith’s tort claim against the School.
Vaidik, C.J., and Riley, J., concur.
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