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FILED
Apr 29 2011, 8:52 am

FOR PUBLICATION

of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANT: SCOTT A. WEATHERS TRAVIS W. MONTGOMERY The Weathers Law Office, P.C. Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: DINA M. COX KAMEELAH SHAHEED-DIALLO Lewis Wagner, LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
EDWIN BLINN, JR., Appellant-Plaintiff, vs. THE LAW FIRM OF JOHNSON, BEAMAN, BRATCH, BEAL and WHITE, LLP, Appellee-Defendant) ) ) ) ) ) ) ) ) )

No. 27A05-1011-CT-721

APPEAL FROM THE GRANT SUPERIOR COURT The Honorable Linda R. Wolf, Special Judge Cause No. 27D02-1008-CT-191

April 29, 2011

OPINION - FOR PUBLICATION BARNES, Judge

Case Summary Edwin Blinn appeals the trial courts dismissal of his complaint. We affirm. Issue Blinn raises one issue, which we restate as whether the trial court properly dismissed his complaint. Facts On April 26, 2007, Blinn filed a pro se complaint against Shane Beal and Beals law firm, Johnson, Beaman, Bratch, Beal, and White, LLP ("the Firm"), alleging that Beal negligently represented him in federal criminal proceedings and that the Firm was vicariously liable for Beals malpractice. On November 1, 2007, Blinn, who was then represented by counsel, filed an amended complaint. According to Blinn, discovery responses indicated that, although Beal and the Firm were represented by different attorneys, they were insured by the same "wasting" malpractice insurance policy, whereby the proceeds of the policy dwindled as the cost of defending the action increased. Appellants App. p. 39. Based on representations by Beals attorney that Beal would sign off on a policy-limits settlement but the Firm would not, Blinn attempted to remove the objecting party from the lawsuit to allow Beal to approve the settlement and end the matter. On September 25, 2009, Blinns attorney sent a letter to the Firm and Beal, stating: Yesterday my client authorized me to take the following steps in an effort to resolve the above-referenced matter: 2

(1) Immediately dismiss, without prejudice, the law firm of Johnson, Beaman, Bratch, Beal & White. (2) Obtain a settlement with Mr. Beal and his insurer for policy limits. It is my understanding that the per occurrence limit is $500,000, less the legal fees paid (my guesstimate is that there has probably been approximately $50,000 spent on defense fees). (3) If a settlement can be obtained, amend the dismissal of the law firm to with prejudice. (4) Finalize a settlement and release agreement with Mr. Beal (that would include the law firm) and file a notice of dismissal with prejudice of Mr. Beal individually. Because both of you have been retained by the same insurer, it is my hope that you could work together to see that this case is resolved within the next several weeks. If either one of you believe that settlement is "not in the cards," please let me know at your earliest convenience. Id. at 48. On October 6, 2009, Blinn filed a limited stipulation of dismissal without prejudice signed by all attorneys involved. On November 6, 2009, pursuant to the

parties stipulation, the trial court entered an order dismissing Blinns action against the Firm without prejudice and leaving the action against Beal to continue. Settlement negotiations with Beal were unsuccessful, and Blinn filed a motion to reinstate the Firm pursuant to Indiana Trial Rule 41(F), which requires a showing of good cause and reasonable time to reinstate a voluntarily dismissed complaint. The Firm objected to the reinstatement, and Blinn argued that reinstatement was permitted pursuant to Indiana Trial Rule 41(F) in part because, even if the dismissal was not set aside, the

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Journeys Account Statute would permit him to refile the claim. On February 24, 2010, the trial court denied Blinns motion to reinstate the Firm. The trial court reasoned: 3. The Court finds that the Stipulation of Dismissal was filed approximately two and one half years after the original complaint was filed by the Plaintiff and during which time the Defendant law firm steadfastly denied liability. Apparently the motivation for Plaintiff to dismiss his case against the law firm was to promote possible settlement on the basis of Shane Beals liability and potential insurance coverage. 4. The Court finds that neither Defendant law firm nor its attorney made any representations with respect to settlement or provided any inducements to cause the Plaintiff to dismiss against them. 5. The Court finds Plaintiffs counsel did not require or obtain any agreement for reinstatement upon the failure of settlement negotiations or any other conditions. 6. The Court finds that Trial Rule 41F providing for reinstatement following dismissal requires good cause be shown and the Court may set aside a dismissal without prejudice within a reasonable time. 7. The Court finds that the reasonable time issue is not in dispute; however, Defendant firm objects to the reinstatement alleging that there is no good cause and that the reinstatement would be time barred based on a statute of limitations. The Court finds that a failure to obtain a quick and substantial settlement from the remaining Defendant is not good cause to reinstate the voluntarily dismissed Defendant. The Court finds that the Plaintiffs failure to negotiate for potential reinstatement upon failure of settlement negotiations is not good cause. The Court finds there was no fraud or misrepresentation on behalf of the Johnson firm nor any inducements provided by them to the Plaintiff in order to obtain the dismissal. 8. The Court finds that the Plaintiff obtained what he wanted when he dismissed the firm from the suit which was to enhance his settlement position. 4

9. The Court finds that commonly when a claim is dismissed without prejudice it means that the Plaintiff could file a new action against the Defendant related to the same issues. The Court further finds that the Defendants position that the refiling of the claim would be time barred as a result of the applicable statute of limitations also applies pursuant to the authority cited by the Defendant to time bar reinstatement of a claim voluntarily dismissed without prejudice. 10. The Court finds that the Plaintiffs claim for reinstatement is not saved in this circumstance by an application of the journeymans statute. Id. at 35. On May 7, 2010, the trial court certified its order denying reinstatement for interlocutory appeal. On July 27, 2010, this court denied Blinns request to accept jurisdiction over an interlocutory appeal.1 On August 10, 2010, Blinn filed a new complaint against the Firm based on Beals alleged malpractice. On September 7, 2010, the Firm filed an Indiana Trial Rule

12(B)(6) motion to dismiss on the basis that the statute of limitations barred the claim and the Journeys Account Statute did not revive it. The Firm also argued that the doctrine of res judicata barred the relitigation of the issues decided in the trial courts February 24, 2010 order.
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Blinn responded by arguing that the application of Journeys Account

The Firm argues, "The Indiana court of Appeals denied Blinns motion for discretionary jurisdiction, thereby, affirming the prior Courts February 24th Order denying reinstatement." Appellees Br. p. 8. Our decision denying Blinns request to accept his discretionary interlocutory appeal was neither a decision on the merits nor an affirmation of the trial courts February 24, 2010 order. See Ind. Appellate Rule 14(B) (describing discretionary interlocultory appeals); Johnson County Rural Elec. Membership Corp. v. South Cent. Ind. Rural Elec. Membership Corp., 883 N.E.2d 141, 145 (Ind. Ct. App. 2008) ("If Johnson County REMC had chosen not to seek an interlocutory appeal, or if either the trial court or this court did not allow such an appeal to proceed, it still could have raised the issue of the denial of the change of judge motion after final judgment was entered.").

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Statute was not properly before the trial court in its February 24, 2010 order, precluding the application of res judicata, and that the Journeys Account Statute did permit him to file his claim. On October 29, 2010, the trial court granted the Firms motion to dismiss. In its order, the trial court reasoned that the complaint was filed after the expiration of the twoyear statute of limitations and that "the Grant Superior Court previously ruled that the Journeys Account statute did not apply to save Plaintiffs time-barred claim against the Defendant, the Law Firm." Id. at 3. Blinn now appeals. Analysis Blinn argues that the trial court improperly granted the Firms motion to dismiss. We review de novo the trial courts ruling on a motion based on Indiana Trial Rule 12(B)(6). Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1122 (Ind. 2010). "Such a motion tests the legal sufficiency of a claim, not the facts supporting it. " Id. "Viewing the complaint in the light most favorable to the non-moving party, we must determine whether the complaint states any facts on which the trial court could have granted relief." Id. "If a complaint states a set of facts that, even if true, would not support the relief requested, we will affirm the dismissal." McPeek v. McCardle, 888 N.E.2d 171, 174 (Ind. 2008). We may affirm the granting of a motion to dismiss if it is sustainable on any theory. Id. Assuming, without deciding, that collateral estoppel does not bar Blinns claim, we address his argument that the Journeys Account Statute permitted him to file the new

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complaint. explained:

In discussing the Journeys Account Statute, our supreme court has

At common law suits often were dismissed on technical grounds. In such cases, the plaintiff could file another writ known as a Journeys Account. The renewal suit was deemed to be a continuation of the first. The time to bring another suit was computed theoretically with reference to the time required for the plaintiff to journey to where court was held. Vesolowski v. Repay, 520 N.E.2d 433, 434 (Ind. 1988). The common law remedy has been replaced with a statutory remedy. Id. The Journeys Account Statute provides: (a) This section applies if a plaintiff commences an action and: (1) the plaintiff fails in the action from any cause except negligence in the prosecution of the action; (2) the action abates or is defeated by the death of a party; or (3) a judgment is arrested or reversed on appeal. (b) If subsection (a) applies, a new action may be brought not later than the later of: (1) three (3) years after the date of the determination under subsection (a); or (2) the last date an action could have been commenced under the statute of limitations governing the original action; and be considered a continuation of the original action commenced by the plaintiff. Ind. Code

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