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ATTORNEY FOR APPELLANT
Deborah A. Kapitan Kopka, Pinkus & Dolin, P.C. Crown Point, Indiana

ATTORNEY FOR APPELLEE
Edward P. Grimmer Edward P. Grimmer, P.C. Crown Point, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 45S04-0412-CV-528 MARK E. MCDILLON, Appellant (Counter Plaintiff below), v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee (Counter Defendant below). _________________________________ Appeal from the Lake Superior Court, No. 45D08-0010-CP-4436 The Honorable Sheila Moss, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 45A04-0305-CV-237 _________________________________ February 8, 2006 Dickson, Justice.

We granted transfer in this case to address the application of Indiana Trial Rule 6(E). The Court of Appeals, reversing because of a jury instruction error, remanded for a new jury trial after applying Rule 6(E) to extend by three days the commencement of the ten-day period for filing a request for jury trial and thus rejecting a challenge to the timeliness of the defendant's jury demand. McDillon v. N. Ind. Pub. Serv. Co., 812 N.E.2d 152 (Ind. Ct. App. 2004). We reach the same outcome, but on grounds other than Rule 6(E).

In this damage action by Northern Indiana Public Service Company (NIPSCO) against the defendant Mark E. McDillon, whose automobile collided with a utility pole, the trial court initially entered a default judgment for NIPSCO, but later granted McDillon's motion to set aside the default. A jury trial ensued, resulting in a verdict and judgment in favor of NIPSCO for $12,440.29. McDillon appealed, and NIPSCO raised issues on cross-appeal. Finding error in the jury instructions, the Court of Appeals reversed and remanded. As to the issues other than Trial Rule 6(E), we summarily affirm the decision of the Court of Appeals. Ind. Appellate Rule 58(A)(2).

In its order of May 15, 2001, granting McDillon's motion to set aside the default judgment, the trial court did not specify any date by which McDillon was to file an answer or other responsive pleading. Appellant's Supplemental App'x at 11. Rule 6(C) requires a responsive pleading to be served within twenty days "after service of the prior pleading." On June 4, 2001, twenty days after the order setting aside the default, McDillon filed a motion for enlargement of time to file his responsive pleading. McDillon was "granted until June 18, 2001 to file an answer to [NIPSCO's] complaint." Appellee's App'x at 19.

Indiana Trial Rule 38(B) specifies that where, as here, no responsive pleading is yet filed, a party's written request for jury trial must be filed "within ten (10) days after the time such pleading otherwise would have been required." The Chronological Case Summary (CCS) records that McDillon filed his request for jury trial on June 29, 2001, eleven days after June 18, when his answer was due. Appellant's Suppl. App'x at 3. In ruling upon NIPSCO's motion to strike the jury demand as untimely, however, the trial court noted "a crucial dispute as to whether the jury demand was filed on June 28, 2001 or June 29, 2001," and found that McDillon "was granted until June 18, 2001, to file an answer," and "that since the demand was made by certified mail dated June 28, 2001, . . . the demand was made on June 28, 2001 when the demand was mailed pursuant to Trial Rule 5(E) [sic] of the Indiana Rules of Trial Procedure." Appellee's App'x at 19. We assume that the reference to Rule 5(E) was a scrivener's error, and that the trial court intended Rule 5(F), which states that "[f]iling by registered or certified mail and by thirdparty commercial carrier shall be complete upon mailing or deposit." Ind. Trial Rule 5(F).

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The Court of Appeals also concluded that the jury demand was timely, but did so by applying Trial Rule 6(E) to the court's mailed order setting aside the default judgment to conclude that "the time within which McDillon's responsive pleading was due was extended by three days." McDillon, 812 N.E.2d at 158. Trial Rule 6(E) was not discussed by the parties in this appeal, nor utilized by the trial court. The reason this rule was not presented as an issue on appeal is suggested by the record presented on appeal. It does not provide support for the assumption that McDillon's time to file a responsive pleading was necessarily extended by three days. The appendices filed by the parties do not include either McDillon's June 4, 2001, motion for enlargement of time nor the order granting the motion. All we have is an entry on the CCS stating: "Deft. files Mtn for Two Week Enlargement. RJO." Appellant's Supp. App'x at 3. We cannot definitively ascertain whether the trial court extended McDillon's response time for a period of time (the commencement of which would relate to the prior deadline) or to a date certain. The latter seems more likely, however, because of the trial court's July 25, 2001, order denying NIPSCO's motion to strike McDillon's jury demand, wherein the court explicitly stated: "The defendant was granted until June 18, 2001 to file an answer to Plaintiff's complaint." Appellee's App'x at 19. In any event, because the defendant's jury trial demand was filed by certified mail on June 28th, it was filed within ten days of the date by which the defendant was required to file its answer.

We granted transfer, however, to resolve an apparent conflict among Indiana cases regarding the application of Rule 6(E) and its automatic three-day extension of time when court orders are mailed. The rule states: Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period. The question is whether the rule properly applies to extend the commencement of deadlines following all court orders, including those deadlines triggered by the entry of an order or happening of an event, or only by those deadlines that are triggered by service of a court order.

In Lincoln v. Bd. of Comm'rs of Tippecanoe County, 510 N.E.2d 716, 724 (Ind. Ct. App. 1987), trans. not sought, the rule was applied to add three additional days to the period pre-

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scribed by Indiana Code

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