Gill v. Pollert

• Decision Date: 30 June 2004
• Docket Number: No. 36S01-0304-CV-163.,36S01-0304-CV-163.
• Citation: 810 N.E.2d 1050
• Parties: W. Brent GILL and Marina Gill, Appellants (Defendants and Cross-Claimants below), v. Fred POLLERT and Pollerts' Inc., Appellee and Cross-Appellee (Defendant and Cross-Defendant below), Onyx Paving Company, Inc., Appellee and Cross-Appellant(Plaintiff below), Penn-America Insurance Co., Appellee (Defendant and Cross-Defendant below), and GAB Robins North America, Inc., Appellee (Defendant below).
• Court: Indiana Supreme Court

810 N.E.2d 1050

W. Brent GILL and Marina Gill, Appellants (Defendants and Cross-Claimants below), v. Fred POLLERT and Pollerts' Inc., Appellee and Cross-Appellee (Defendant and Cross-Defendant below),

Onyx Paving Company, Inc., Appellee and Cross-Appellant(Plaintiff below),

Penn-America Insurance Co., Appellee (Defendant and Cross-Defendant below), and

GAB Robins North America, Inc., Appellee (Defendant below).

No. 36S01-0304-CV-163.

Supreme Court of Indiana.

June 30, 2004.

David W. Stone IV, Stone Law Office & Legal Research, Anderson, IN, Patrick W. Harrison, Harrison & Dalmbert, Columbus, IN, Attorneys for W. Brent Gill and Marina Gill.

John A. Stroh, Lisa A. Anderson, Sharpnack Bigley, LLP, Columbus, IN, Attorneys for Onyx Paving Company, Inc.

Keith A. Kinney, Alan J. Irvin, Hill Fulwider McDowell Funk & Matthews, Indianapolis, IN, Attorneys for Fred Pollert and Pollerts' Inc.

Brent Threlkeld, Neal F. Eggeson, Jr., Threlkeld Reynolds, LLP, Indianapolis, IN, Attorneys for Penn-America Ins. Co.

ON PETITION TO TRANSFER FROM THE INDIANA COURT OF APPEALS, NO. 36A01-0203-CV-97.

DICKSON, Justice.

We granted transfer in this case to consider the relation-back of a cross-claim filed timely but where leave of court was not sought and granted until after the expiration of the statute of limitations.

This litigation arises from the aftermath of a fatal fire that destroyed the Centennial Hotel building in Seymour, Indiana, on December 25, 1998. The building was owned by W. Brent and Marina Gill ("the Gills") and insured through a policy issued by Penn-America Insurance Company ("Penn-America") procured through the Gills' insurance agent, Fred Pollert of Pollerts' Inc. (collectively, "Pollerts"). Immediately after the fire, Onyx Paving Company, Inc. ("Onyx") called Pollerts and expressed interest in providing demolition services for the hotel remnants. Two days later, Pollerts telephoned Onyx and authorized the demolition work to begin. Penn-America's adjuster, GAB Robins North America, Inc. ("GAB"), was not involved in the initial authorization for Onyx to do the demolition work. When Onyx completed the demolition, it prepared its invoice dated January 21, 1999, for $153,800. It read "Bill to: Brent & Marina Gill, F. Pollert/Pollerts' Inc., 404 N. Chestnut, Seymour, IN." This was the address of Pollerts, and Onyx delivered the invoice to Pollerts. Claiming that the Gills' policy provided only limited coverage for "debris removal," Penn-America paid Onyx only $10,000.

Upon failing to receive the balance of the invoice for demolition, Onyx filed a complaint in June of 1999 against Pollert, Pollerts' Inc., Centennial Hotel ("Centennial"), GAB, and Penn-America. In the complaint, Onyx also sought to foreclose on a mechanic's lien for the unpaid balance against the property on which the hotel had been located. The answer filed by Centennial on September 3, 1999, did not assert any cross-claim. Appellants' Appendix at 33-40. On May 9, 2000, however, Centennial filed a cross-claim against Pollerts and Penn-America seeking payment of the hotel demolition costs and asserting other claims. Although the cross-claim was filed with the court and mailed to counsel for Pollerts and Penn-America on May 5, 2000, neither Centennial nor the Gills sought leave of court to file the cross-claim. On June 16, 2000, Onyx filed an amended complaint substituting the Gills for the defendant Centennial. In their answer filed July 25, 2000, the Gills admitted their ownership of Centennial, but their answer did not include any cross-claims. In October of 2000, the trial court heard and granted a summary judgment motion filed by Penn-America and GAB against Onyx. For over eight months after Centennial filed its cross-claim, neither Pollerts nor Penn-America filed an answer or other response to the cross-claim, despite assurances from counsel for Pollerts that one would soon be filed. The Gills did not seek a default judgment on their cross-claim during this delay. But on January 31, 2001, just over two years after Onyx presented its invoice for the completed demolition, Pollerts filed a motion to dismiss the cross-claim asserting that the Gills had not sought and obtained leave to file it. Two days later Centennial and the Gills filed a motion requesting "that their cross-claim of May 9, 2000, be allowed." Appellants' Appendix at 203. The trial court immediately granted the motion and ordered "that the Cross-claim of May 9, 2000, is authorized and permission is given by the Court for that Cross-claim to be filed." Id. at 205. When the Pollerts finally filed their answer to the cross-claim on February 27, 2001, they asserted the statute of limitations among other defenses. On March 12, 2001, Penn-America and GAB (although the Gills' cross-claim did not name GAB as a cross-defendant) jointly responded to the cross-claim with a consolidated motion to dismiss and an answer asserting various defenses including the statute of limitations.¹ They also filed a motion for summary judgment asserting the two-year statute of limitations and other claims. The statute of limitations was similarly asserted by the Pollerts' motion for summary judgment filed a few days later.

On July 18, 2001, the trial court addressed the pending motions, expressing great concern regarding the "troubling aspects to this case." Id. at 387.

It is clear from the comments of counsel that the Cross-defendants knew that the Cross-claim was not correctly filed. It is further clear that they took no action in a conscious stratagem to mouse trap the Cross-claimants with the statute of limitations. The Court believes that discussions among the lawyers involved were held concerning the cross-claim and though the Court does not believe that the attorneys for the Cross-claim defendants explicitly, expressly or specifically lied concerning the filing of some responses to the Cross-claim, the Cross-claimants believed or were allowed to believe that the response would be an admit/deny answer.

There is no question that the allegations of the Cross-claim were known to the Cross-claim defendants before the statute of limitations would have expired. There is no question that a response could have been filed before the statute of limitations would have expired. There is now [sic] question that the Cross-claimants could have forced a response before the statute of limitations would have expired. None of the above occurred.

Id. at 387.

Noting "[a]s much as the Court dislikes the practice of law as sport," id. at 389, the trial court applied Sears, Roebuck & Co. v. Boyd, 562 N.E.2d 458 (Ind.Ct.App.1990), and concluded as a matter of law that the May 9, 2000, cross-claim filed without permission of the court "was a procedural non-entity," Appellants' Appendix at 387, that the subsequent order could not relate back, and that the cross-claim was barred by the statute of limitations. The trial court granted a motion to substitute parties that had been filed by the Gills, but then granted the summary judgment motions filed by Pollerts and by Penn-America and GAB. Thereafter, on March 18, 2002, following a bench trial, the trial court awarded Onyx a judgment against the Gills for $143,800 and $6,000 in attorney's fees, but found against Onyx on its claim against Pollerts. The Gills appealed, and Onyx cross-appealed. The Court of Appeals affirmed in an unpublished memorandum decision.

1. Validity of Cross-claim

The Gills argue that their cross-claim of May 9, 2000, while initially filed without leave of court, nevertheless became valid when explicitly authorized by the trial court order on February 2, 2001, and that the date their cross-claim was filed thus related back to May 9, 2000, when originally filed and served upon the cross-defendants. Pollerts and Penn-America argue (a) that because the Gills' cross-claim was neither filed with their answer nor with court permission, it is a nullity, and (b) that it cannot relate back as an amended pleading.

In Boyd, our Court of Appeals held that "a cross-claim must be asserted in an answer," that it "is not a pleading itself," and that a defendant "can assert a cross-claim against a co-defendant by amending his answer only if leave of court is granted pursuant to Ind. Trial Rule 15(A)." 562 N.E.2d at 460. Finding that the record did not reflect any order that allowed Boyd to file the cross-claim, the court held it was a nullity. As applied to the present case, Trial Rule 15(A) provides in relevant part that "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." (emphasis added.) At all times relevant to the present case, Trial Rule 15(C) provided in relevant part:²

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 the period provided by law for commencing the action against him, 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.

Id.

The facts of the present case are distinguishable from those in Boyd. Although not filed contemporaneously with the cross-claim, Centennial and the Gills did subsequently file a motion requesting "permission to file" their cross-claim and asking that their cross-claim of May 9, 2000 "be allowed." Appellants' Appendix at 203. The trial court granted the motion, ordering that said cross-claim "is authorized and permission is given...