Mcdillon v. Northern Ind. Public Serv. Co., 45S04-0412-CV-528.

• Decision Date: 08 February 2006
• Docket Number: No. 45S04-0412-CV-528.,45S04-0412-CV-528.
• Citation: 841 N.E.2d 1148
• Parties: Mark E. McDILLON, Appellant (Counter Plaintiff below), v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee (Counter Defendant below).
• Court: Indiana Supreme Court

841 N.E.2d 1148

Mark E. McDILLON, Appellant (Counter Plaintiff below), v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee (Counter Defendant below).

No. 45S04-0412-CV-528.

Supreme Court of Indiana.

February 8, 2006.

Deborah A. Kapitan, Kopka, Pinkus & Dolin, P.C., Crown Point, for Appellant.

Edward P. Grimmer, Edward P. Grimmer, P.C., Crown Point, for Appellee.

ON PETITION TO TRANSFER FROM THE INDIANA COURT OF APPEALS, NO. 45A04-0305-CV-237.

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 third-party commercial carrier shall be complete upon mailing or deposit." Ind. Trial Rule 5(F).

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 prescribed by Indiana Code § 36-2-2-27, which requires an appeal from an executive decision of the County Commissioners to "be taken within thirty (30) days after the executive makes the decision." Ind.Code § 36-2-2-27(c) (2000). The court stated that Rule 6(E) provides for three additional days to be added whenever "notice of the right is served upon the aggrieved party by mail." Lincoln, 510 N.E.2d at 724. Language found in State ex rel. Sargent & Lundy v. Vigo Superior Court, 260 Ind. 472, 474, 296 N.E.2d 785, 786 (1973), trans. not sought, expresses the same idea: "Trial Rule 6(E) very clearly provides an additional three (3) days if reliance is placed on the mail to give notice." This language was quoted and applied in Baker v. Sihsmann, 161 Ind.App. 260, 262, 315 N.E.2d 386, 387 (1974), trans. denied, and it was cited in Yaksich v. Gastevich, 440 N.E.2d 1138, 1140 n. 5 (Ind.Ct.App.1982), trans. not sought.

In contrast, several cases have explicitly limited the application of Rule 6(E) to delay the commencement of a time period only to circumstances where such period is triggered by the receipt of service or notice. See, e.g., Carter-McMahon v. McMahon, 815 N.E.2d 170, 174-78 (Ind. Ct.App.2004), trans. not sought; Jennings v. Davis, 645 N.E.2d 23, 24 (Ind.Ct.App. 1995), trans. not sought; Annon II, Inc. v. Rill, 597 N.E.2d 320, 324-25 (Ind.Ct.App. 1992), trans. not sought. As emphasized by Chief Judge Ratliff in Annon, "the three day extension of provision T.R. 6(E) only applies when a party has a right or is required to do some act within a prescribed period `after the service of a notice' upon the party." Id. at 324 (quoting T.R. 6(E)). As a result, Rule 6(E) was held not to extend a time period that commenced when "issues were first closed on the merits" rather than upon service of an answer. Id. at 325. The Annon court noted several examples of time periods to which Rule 6(E) would apply:

Ind. Trial Rule 6(C) (responsive pleading required to be served "within 20 days after the service of the prior pleading"); Ind. Trial Rule 33(C) (responses to interrogatories due "not less than thirty (30) days after service thereof"); Ind. Trial Rule 56(C) (adverse party has "thirty days after service of the motion to serve a response and any opposing affidavits").

Id. at 324.

Upon further analysis, this understanding is consistent with the actual holdings in several of the cases noted above as generally applying Rule 6(E) without articulating its limitation to time periods triggered by the service of documents. In Baker, Rule 6(E) was applied to extend the twenty-day response period declared in a summons to begin the day after receipt of the summons. 161 Ind.App. at 262, 315 N.E.2d at 387. And in Yaksich, the court extended by three days the twenty day period "after notice of the order" allowed for complying with an order granting a motion to strike pursuant to Indiana Trial Rule 12(E). 440 N.E.2d at 1139 n. 2. Even in Sargent & Lundy, Rule 6(E) was applied to then-existing Indiana Trial Rule 76(9), which required action by the parties within up to fourteen days after the trial court submits a written list of adjoining counties. 260 Ind. at 474, 296 N.E.2d at 786. Thus, except for Lincoln, all the above cases have provided a three-day extension under Rule 6(E) in a manner consistent with the rule's express language limiting its application to situations when "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." T.R. 6(E) (emphasis added).

We hold that, consistent with Carter-McMahon, Jennings, and Annon, the application of Trial Rule 6(E) applies only when a party has a right or is required to do some act within a prescribed period after the service of a notice or other paper. It does not apply to extend...