Benjamin S. Smith, Appellant-Plaintiff, v. Franklin Township Community School Corp., Appellee-Defendant.
Court of Appeals Case No. 19A-CT-1244
Court of Appeals of Indiana
November 6, 2019
Bradford, Judge.
Appeal from the Marion Superior Court, The Hon. James A. Joven, Judge, Trial Court Cause No. 49D13-1810-CT-42794
ATTORNEYS FOR APPELLANT
James R. Fisher
Debra H. Miller
Miller & Fisher, LLC
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Kevin S, Smith
Alexander P. Pinegar
Church, Church, Hittle & Antrim
Noblesville,
Case Summary
[1] In January of 2016, Benjamin Smith‘s vehicle collidеd 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 tо 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
Facts and Procedural History
[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.”
[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 mоved for his complaint to be reinstated pursuant to
Discussion and Decision
[6] Smith is appealing from the trial court‘s denial of his motion to reinstate his negligence suit against the School.
I. ITCA
[7] The parties seem to agree that ITCA applies to Smith‘s claim, with the School arguing only that Smith has failed tо 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 bеlow 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 circumstancеs the argument is waived.“) (citations omitted). Under the circumstances, we consider the ITCA 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 аpplies 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[.]”
[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 thаt Smith has failed to preserve his retroactivity argument. “As 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 cоurt.” 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 comрlaint 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 bе 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 оf 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 prospectivеly depends upon the legislature‘s 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 fоr 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 complеted 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 neеd 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.
[13] We conclude that the compliance of Smith‘s claim with ITCA notice requirеments has been conclusively established. We further conclude that CAPSA does not apply to Smith‘s claim, as that would constitute retroactive and, in this case, impermissible application of CAPSA. Because the triаl 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.