Background

• Carrie McGoffney resided at Royal Oaks from Sept. 30, 2008, to June 30, 2009, with guardianship matters involving her daughters Ivy and Kelly.
• Kelly filed a proposed medical malpractice complaint on Carrie’s behalf while Ivy was guardian, and a nunc pro tunc probate order allegedly allowed Kelly to pursue the suit.
• The Probate Court appointed Ivy as Carrie’s guardian in 2009, a ruling this court later affirmed on appeal.
• In 2011 the Vigo Superior Court dismissed Kelly’s proposed complaint for lack of standing, though the dismissal did not address the merits.
• Keeli was appointed Carrie’s guardian in 2012 and filed an amended proposed medical malpractice complaint on Carrie’s behalf; Carrie died in 2012, and Kelly was appointed as personal representative of the Estate.
• The Estate substituted as plaintiff in the proposed complaint; the trial court denied Royal Oaks’ summary judgment, and the interlocutory appeal followed.

Issues

Key Cases Cited

• Dempsey v. Belanger, 959 N.E.2d 861 (Ind. Ct. App. 2011) (explains scope and use of the JAS to revive an action)
• Al-Challah v. Barger Packaging, 820 N.E.2d 670 (Ind. Ct. App. 2005) (JAS prerequisites require good faith and non-merit failure)
• Vesolowski v. Repay, 520 N.E.2d 433 (Ind. 1988) (broader liberal purpose of JAS to avoid merited dismissal)
• Eads v. Cmty. Hosp., 932 N.E.2d 1239 (Ind. 2010) (illustrates failure to prosecute cases may affect JAS)
• Cox v. Am. Aggregates Corp., 684 N.E.2d 193 (Ind. 1997) (refines application of JAS across procedural dismissals)
• Irwin Mortgage Corp. v. Marion Cnty. Treasurer, 816 N.E.2d 439 (Ind. Ct. App. 2004) (illustrates continuation when action timely but not on merits)