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McGee v. Kennedy

Court of Appeals of Indiana

October 20, 2016

James A. McGee, Appellant-Defendant,
v.
Shanna Kennedy, Appellee-Plaintiff.

         Appeal from the Marion Superior Court The Honorable Gary Miller, Judge Trial Court Cause No. 49D03-1603-CT-9765

          ATTORNEY FOR APPELLANT Robert F. Ahlgrim, Jr. State Farm Litigation Counsel Indianapolis, Indiana

          ATTORNEY FOR APPELLEE Kelly Thompson Thompson Legal Services, LLC Indianapolis, Indiana

          Bailey, Judge.

         Case Summary

         [¶1] Shanna Kennedy ("Kennedy") and James McGee ("McGee") were involved in an automobile accident and litigation ensued. McGee filed an Indiana Trial Rule 12(B)(6) motion to dismiss on statute of limitations grounds and Kennedy filed an Indiana Trial Rule 59 Motion to Correct Error in order to amend the filing date of her complaint. The trial court granted the Trial Rule 59 motion, McGee filed a motion to reconsider, the motion to dismiss was set for hearing, and McGee initiated an appeal. While the appeal was pending, the trial court purportedly granted the motion to dismiss. Lacking jurisdiction, we dismiss the interlocutory appeal.

         Issue

         [¶2] McGee presents a single, consolidated issue: whether the trial court properly granted Trial Rule 59 relief. Kennedy presents a single, consolidated issue: whether the trial court properly granted McGee's Trial Rule 12(B)(6) motion to dismiss. We address the procedural and substantive allegations of the parties to the extent necessary to resolve an issue that we raise sua sponte: whether there is subject matter jurisdiction to hear the appeal.

         Facts and Procedural History

         [¶3] On March 12, 2014, Kennedy was driving southbound on Interstate 65 in Marion County, Indiana, when her vehicle struck a large pothole and became disabled. She pulled her vehicle to the far right and activated her emergency flashers. McGee, allegedly intoxicated, crashed his vehicle into Kennedy's vehicle.

         [¶4] Kennedy filed a Complaint for Damages, which was file stamped on March 18, 2016 by the Clerk of the Marion Circuit Court. McGee's answer to the complaint admitted that he had negligently caused the vehicle collision.

         [¶5] On April 5, 2016, McGee filed a Motion to Dismiss, contending that Kennedy's complaint had been filed six days past the two-year statute of limitations of Indiana Code Section 34-11-2-4(a), applicable to personal injury and injury to personal property. On the same day, Kennedy filed a Motion to Correct Error with reference to Indiana Trial Rule 59. Therein, she alleged that her counsel had timely filed the complaint for damages by depositing it with a third-party commercial carrier. She requested that the trial court "order the Chronological Case Summary and the original filings be revised to reflect the appropriate filing date of three (3) days after the Complaint was deposited with a third-party carrier, March 11, 2016." (App. at 11.) Kennedy attached an affidavit executed by her attorney's paralegal, averring that she had deposited the complaint in a United States Postal mailbox on March 9, 2016, and that negotiations had been ongoing at that time between Kennedy's counsel and a representative of McGee's insurance carrier.

         [¶6] On April 18, 2016, Kennedy responded to the motion to dismiss, reiterating that the complaint was mailed on March 9, 2016, admitting that she had no explanation for a nine-day delay in delivery or file-stamping, and arguing that the ongoing negotiations had rendered the doctrine of equitable estoppel applicable. On the same day, McGee responded to the motion to correct error, claiming that depositing a complaint via regular first-class mail did not satisfy the requirements of Indiana Trial Rule 5(F), [1] and that Kennedy could not avoid a statute of limitations based upon equitable estoppel. McGee attached, as Exhibit A, a letter of January 4, 2016 from Kennedy's counsel to a State Farm Insurance representative, purportedly submitting a "final counteroffer" open for ten days. (App. at 25.) (emphasis in original.)

         [¶7] On April 19, 2016, the trial court granted Kennedy's motion to correct error and ordered that the Chronological Case Summary reflect a filing date of March 11, 2016. On April 22, 2016, McGee filed a "Motion to Reconsider Order Granting Plaintiff's Motion to Correct Error." (App. at 27.) Therein, McGee alleged that the motion to correct error had not been properly served and that the trial ...


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