948 N.E.2d 814
Ind. Ct. App.2011Background
- Blinn filed a pro se malpractice claim against Beal and the Firm in 2007; amended complaint followed in 2007.
- Blinn alleged Beal’s negligence in federal proceedings and vicarious liability by the Firm.
- In 2009 Blinn and all attorneys signed a limited stipulation dismissing the Firm without prejudice; Beal’s action continued.
- Settlement negotiations failed; Blinn moved to reinstate the Firm under Trial Rule 41(F); the trial court denied reinstatement in 2010.
- Blinn subsequently filed a new complaint in 2010 after the statute of limitations had run; the Firm moved to dismiss under 12(B)(6) and Journey’s Account Statute.
- The trial court dismissed, holding the claim time-barred and not saved by the Journey’s Account Statute; Blinn appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Journey's Account save Blinn's time-barred claim? | Blinn argues Moore exception permits revival despite voluntary dismissal. | Firm argues voluntary dismissal precludes Journey's Account revival; Moore distinction not met. | No; Journey's Account Statute does not save time-barred claim after voluntary dismissal. |
| Was reinstatement under Trial Rule 41(F) proper, and does Moore apply? | Blinn contends good cause and diligence support reinstatement under 41(F). | Firm asserts no good cause and statute of limitations issues bar reinstatement; Moore exception not applicable. | Trial court properly denied reinstatement; Moore exception not satisfied. |
| Is collateral estoppel/other doctrines required to bar refiling? | Blinn contends collateral estoppel or Journey’s Account could revive the claim. | Firm contends findings preclude relitigation; Journey’s Account does not apply. | Assuming collateral estoppel does not bar, the Journey's Account Statute does not save the claim. |
Key Cases Cited
- Vesolowski v. Repay, 520 N.E.2d 433 (Ind. 1988) (Journey's Account Statute defined; purpose to allow continued hearing on merits)
- City of Evansville v. Moore, 563 N.E.2d 113 (Ind. 1990) (exception to Journey's Account when activity shows unavailing effort to succeed)
- Moore, 563 N.E.2d 113 (Ind. 1990) (recognizes an exception to Journey's Account for unavailing efforts to proceed)
- Al-Challah v. Barger Packaging, 820 N.E.2d 670 (Ind. Ct. App. 2005) (voluntary dismissal generally precludes Journey's Account saving)
- Eads v. Cmty. Hosp., 932 N.E.2d 1239 (Ind. 2010) (voluntary dismissal may foreclose Journey's Account unless conditions apply)
- Good, 56 Ind. App. 562 (Ind. 1913) (old formulation on whether failure to obtain merits constitutes 'fail' under Journey's Account)
- Kohlman v. Finkelstein, 509 N.E.2d 228 (Ind. Ct. App. 1987) (refiling after dismissal not saved when initially timely but dismissed without prejudice)
- Ferdinand Furniture Co. v. Anderson, 399 N.E.2d 799 (Ind. Ct. App. 1980) (Journey's Account cannot save timely action that was timely filed but dismissed for lack of jurisdiction)