Jeffrey M. MILLER and Cynthia S. Miller, Appellants (Plaintiffs), v. Kristine C. DANZ, Appellee (Defendant).
No. 49S05-1506-PL-400.
Supreme Court of Indiana.
June 29, 2015.
Rehearing Denied Sept. 22, 2015.
36 N.E.3d 455
Daniel D. Trachtman, Erica K. Drew, Wooden & McLaughlin LLP, Andrew W. Hull, Alice M. Morical, Amanda L.B. Mulroony, Hoover Hull LLP, Indianapolis, IN, Attorneys for Appellee.
On Transfer from the Indiana Court of Appeals, No. 49A05-1401-PL-45.
DICKSON, Justice.
This appeal challenges summary judgment in favor of a named defendant substituted in an amended complaint for a previously unknown “John Doe” defendant after expiration of the applicable statute of limitations. We affirm.
This particular appeal stems from ongoing litigation involving Jeffrey M. Miller, former president and CEO of Junior Achievement of Central Indiana, Inc. (“JACI“), and his wife Cynthia S. Miller.1 Following a lost job opportunity with the Indianapolis Mayor‘s Office, Miller2 filed a complaint on March 31, 2010. Miller filed multiple amended complaints, ultimately alleging several individuals and organizations committed torts against Miller, including defamation per se, defamation per quod, invasion of privacy—false light, tortious interference with a business relationship, and intentional infliction of emotional distress. On January 31, 2012, Miller filed a Fourth Amended Complaint to add “JOHN DOE # 8, a partner, employee or agent of Ice Miller, LLP” as a defendant in the action and alleged that John Doe # 8 told Ms. Cotterill, who in turn told Mr. Cotterill, that “CICF was planning to sue Mrs. Miller for misappropriation of funds.” Appellants’ App‘x at 225, 236. And on February 8, 2013, Miller requested leave to file a Fifth Amended Complaint, “to substitute ... Kristine C. Danz, as a substitute for John Doe # 8, a partner, employee or agent of Ice Miller, LLP.” Id. at 281. Miller claimed “the identity of Ms. Danz as John Doe # 8 was only recently discovered on January 18, 2013” during a deposition. Id. at 283.
Danz moved for summary judgment on grounds that Miller‘s attempt to add her as a named party was barred by the two-year statute of limitations and, further, that Miller‘s claims for defamation failed on the merits. After a hearing at which the parties primarily argued the statute of limitations issue, the trial court granted Danz‘s motion for summary judgment and directed that final judgment be entered. The trial court did not issue findings of fact or conclusions of law. The Court of Appeals affirmed. Miller v. Danz, 27 N.E.3d 774 (Ind.Ct.App.2015).
We review a summary judgment decision de novo, applying the same standard as the trial court. A trial court is not required to enter findings of fact or conclusions of law on summary judgment, and we may affirm a grant of summary judgment upon any theory supported by the evidence. See Alva Elec., Inc. v. Evansville-Vanderburgh Sch. Corp., 7 N.E.3d 263, 267 (Ind.2014). Summary judgment may be
Miller appeals the grant of summary judgment in Danz‘s favor, arguing in part that “Rule 17(F) of the Indiana Rules of Trial Procedure” allows the true name of a John Doe to be “inserted by amendment at any time” and that his lack of knowledge of Danz‘s identity would qualify as a mistake for purposes of relation back under Trial Rule 15(C). Appellants’ Br. at i. Danz responds in part that lack of knowledge of a defendant‘s identity does not constitute a mistake under Rule 15(C).
Trial Rule 17 discusses the method of naming parties. As relevant here, it provides:
(F) Unknown persons. When the name or existence of a person is unknown, he may be named as an unknown party, and when his true name is discovered his name may be inserted by amendment at any time.
(A) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted, and the action has not been placed upon the trial calendar, he may so amend it at any time within thirty [30] days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be given when justice so requires.
* * * *
(C) Relation back of amendments. 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.
It is undisputed that all of Miller‘s claims against Danz are subject to a two-year statute of limitations. See
From the designated evidence, however, particularly Miller‘s statements during the March 19, 2010, conversation with Cotterill, it is clear that Miller knew of the existence and the name of John Doe # 8 before he commenced this action. During the conversation, Cotterill told Miller he had heard that Miller or JACI was “going to be sued by the CICF [Central Indiana Community Foundation] for misappropriation of funds” and that the source of his information was a lawyer who worked with his wife at Ice Miller, LLP. Appellants’ App‘x at 477. The relevant part of the conversation follows:
Jeff Miller: So where did that come from?
Chris Cotterill: Some lawyer contacted Sarah [Cotterill‘s then-wife], and I think that that lawyer‘s at Ice Miller. I didn‘t really get into that with her.
Jeff Miller: Okay. That helps me, because I can trace that actually.
Chris Cotterill: Yeah, I mean—
Jeff Miller: There‘s a ... Harry Danz who works—who is on the executive committee at JA[CI]; his wife works at Ice Miller.
Chris Cotterill: Okay. And I—
Jeff Miller: So that would make sense.
Id. at 344 (emphases added). Miller contends he has been “diligent in pursuing the true identity of Doe # 8” and did not learn that Doe # 8 was actually Danz until the deposition of Ms. Cotterill on January 18, 2013. Reply Br. at 4. Miller admits, however, he “may have suspected Doe # 8” but “could not name a specific individual” until he “knew from sworn testimony the identity of Doe # 8.” Id. at 5 n. 1. Because of Miller‘s undisputed knowledge of Danz‘s existence and probable identity before he initiated this action, neither her existence nor her identity were “unknown” to Miller, as required in Trial Rule 17(F), and thus Miller cannot avail himself of the Rule‘s authorization to insert her name “at any time.” We decline to expansively interpret and apply “unknown” as used in the Rule, and thus find the circumstances of plaintiff‘s probable knowledge of this defendant‘s identity to have been sufficient to preclude operation of the Rule‘s unlim ited extension of the statute of limitations.
Conclusion
Finding that the existence and identity of Kristine C. Danz was not unknown to the plaintiff before he commenced this action, yet he waited until after expiration of the applicable statute of limitations to substitute her name for John Doe # 8, we affirm summary judgment in Danz‘s favor.
RUSH, C.J., and RUCKER, DAVID, and MASSA, JJ., concur.
Marq HALL, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
No. 49S05-1412-CR-728.
Supreme Court of Indiana.
July 2, 2015.
Rehearing Denied Sept. 23, 2015.
36 N.E.3d 459