Lisa Hayes-Ajagunna and Adeniran Ajagunna, Appellants-Plaintiffs v. Joey Melville and Mary E. Melville, Appellees-Defendants (2024)

MEMORANDUM DECISION

Case Summary

[1] Lisa Hayes-Ajagunna and her husband Adeniran Ajagunna (Plaintiffs) appeal the trial court's granting of Joey Melville and his mother Mary E. Melville's (Defendants) motion for leave to amend their answer to Plaintiffs’ amended complaint.¹ Finding no abuse of discretion, we affirm.

Facts and Procedural History

[2] On January 26, 2022, Plaintiffs filed their original complaint against Joey and Mary's husband, David.² Plaintiffs then filed a motion for leave to amend their complaint to dismiss David and add Mary as a defendant, which the trial court granted on March 3, 2022. On March 15, 2022, Plaintiffs filed their first amended complaint against Defendants. The complaint alleged that on April 23, 2021, Lisa was a social guest at a home owned by Mary and occupied by Joey when she was attacked by Joey's allegedly vicious dog; the attack caused her to fall off the front porch, which did not have handrails. The record does not indicate precisely when a summons and the amended complaint were actually served on Joey; an alias summons addressed to his counsel was received on March 10, 2022.³ Mary was served with a summons and the amended complaint on May 26, 2022. Appellants’ App. Vol. 2 at 36.⁴

[3] Joey filed his answer and affirmative defenses on March 23, 2022. Mary filed her answer and affirmative defenses the following day.⁵ Neither Joey nor Mary identified any non-parties, and both of them reserved the right to assert additional affirmative defenses that may be revealed in discovery.

[4] Mary served a set of interrogatories and request for production of documents on Plaintiffs on March 14, 2022. Plaintiffs failed to respond, and Mary filed a motion to compel on November 1, 2022. On November 11, the trial court granted Mary's motion and gave Plaintiffs ten days to respond. Plaintiffs did not file a response until November 28. Mary's interrogatory number 6 provided,

For each person known to you, your agents, employees, or attorneys who was in the vicinity immediately before, at the time of, or within one (1) hour after the incident described in Plaintiff's Complaint, state:

(a) Name, present address, and current telephone number;

(b) Place of employment; and

(c) Which of the persons listed in (a) above witnessed or claimed to have been witnesses to this accident.

Id. at 102. In response, Lisa objected to the interrogatory “on the basis that it is premature as discovery is ongoing”; but, “without waiving said objection,” she named Suzanne Melville, Joey's ex-wife, and two of Suzanne's sons and gave only their address. Id. Lisa did not state that any of these persons “witnessed or claimed to have been witnesses to this accident.” Id.

[5] Defendants took Lisa's deposition on September 26, 2023. Three days later, Defendants filed a motion for leave to amend their answers to Plaintiffs’ amended complaint, which reads in pertinent part as follows:

11. ․. During [her deposition, Lisa] testified that Suzanne Melville, Defendant Joey Melville's ex-wife, was the individual she had come to visit at the time of her accident. Suzanne Melville was at the property visiting her children. Suzanne Melville did not reside at the residence at or near the date [Lisa's] alleged incident occurred.․

12. During [Lisa's] deposition, she testified that Suzanne Melville was responsible, in part, for her fall and resulting injuries. Further, [Lisa] testified that as early as three (3) days after the incident, she had decided to pursue a claim for damages and believed Suzanne had some fault for her fall and resulting injuries. Until [Lisa] testified to those facts, neither of the Defendants [was] aware of [Lisa's] belief that Suzanne Melville was culpable, in whole or in part, for [Lisa's] injuries and damages.

13. [Lisa] also testified that she believed Suzanne Melville was at fault, whether in whole or in part, for her injuries and damages as of the date of her accident, April 23, 2021. Notwithstanding that awareness, Plaintiffs failed to identify Suzanne Melville as a nonparty in response to Interrogatory No. 6.

14. While Plaintiffs’ Interrogatory answers disclose Suzanne Melville's name, the Plaintiffs failed to elaborate on Suzanne's potential culpability by failing to disclose their contention that Suzanne failed to confine the dog, failed to adequately control the dog, and permitted the dog to run through the open door. Plaintiffs also disclosed for the first time on September 26, 2023, that Suzanne Melville failed to provide [Lisa] with notice that a dog was kept on the property.

15. Had Plaintiffs adequately and accurately disclosed their belief as to the potential culpability of Suzanne Melville and/or fully disclosed Suzanne Melville's role in the incident, Defendants would have identified Suzanne Melville as a non-party defendant in their Answers to Plaintiffs’ Amended Complaint for Damages. At the very least, Defendants would have been able to seek leave of Court to file amended Answers on or shortly after November 28, 2022, when Plaintiffs belatedly tendered responses to the written discovery.

16. The statute of limitations passed on April 23, 2023, meaning that Plaintiffs now lack the ability to file a second amended Complaint for Damages asserting claims against Suzanne Melville. The failure of Plaintiffs to disclose Suzanne Melville's identity in response to written discovery prevented Defendants from identifying her as a non-party in their affirmative defenses. Without the identification of Suzanne Melville as a non-party defendant, a jury will be precluded from apportioning fault to Suzanne Melville. By [Lisa's] own admission, Suzanne Melville bears some fault for her injury and damages. If Defendants are not permitted to file amended answers, one or both will be forced to bear the liability of Suzanne Melville as [Lisa] acknowledged in her deposition testimony.

Id. at 92-94. Plaintiffs filed a response, in which they argued that Defendants’ motion was untimely. Defendants filed a reply, and Plaintiffs filed a sur-reply.

[6] On January 16, 2024, after a hearing, the trial court issued an order that reads as follows:

In her First Amended Complaint, [Lisa] alleges she suffered personal injuries on April 23, 2021 while a guest at a home in Tippecanoe County, Indiana. Lisa alleges, in part, that:

(1) Mary Melville owned the home.

(2) Joey Melville was the tenant of the home.

(3) Lisa was an invitee of Joey.

(4) Joey kept an aggressive dog on the property.

(5) Mary had knowledge of the dog's propensity for aggressiveness.

(6) The dog attacked Lisa and caused her to fall of[f] the front porch.

(7) Joey failed to use reasonable care in properly controlling his dog.

(8) Mary was required to have handrails on the front porch, but failed to do so.

(9) Mary failed to use reasonable care in maintaining the property in a safe condition or warning guests of perils.

The statute of limitations ran on April 23, 2023, and the plaintiffs can no longer amend their First Amended Complaint to add additional defendants.

The defendants timely filed answers, which did not include nonparty defenses. If the parties (plaintiffs and defendants) conducted any limited investigation of the facts of this case, they would have likely known the basic facts of the case from the outset. Mary and Joey were not home at the time of the incident. Joey's ex-wife, Suzanne, was the occupant of the home, and she invited Lisa to the home.

It's unclear why the plaintiffs did not name Suzanne as a defendant. Perhaps it is because she is a friend of Lisa? Perhaps it is because Suzanne is not an insured under the homeowner's policy? Perhaps Suzanne is judgment proof? Regardless, if the plaintiffs do not want to sue Suzanne, they don't have to. However, when specifically asked during discovery whether they believe anyone other than Joey or Mary were at fault, they were required to provide accurate answers.

The plaintiffs’ Complaint does not put the defendants on notice that they believe Suzanne is partially at fault. Instead, they only allege that Joey and Mary were negligent. Defendants sent discovery requests to the plaintiffs in early 2022 and specifically asked whether they believed any nonparties were at fault.[6] Plaintiffs did not timely respond. When finally compelled to provide answers, the plaintiffs responded in November 2022, and stated they were not aware of any potential nonparties.

It was not until Lisa's deposition on September 26, 2023, after the statute of limitations had run, that Lisa contends for the first time that Suzanne is partially at fault for opening the door.

Under I.C. 34-51-2-16, it would appear that it is too late for the defendants to name a non-party. I.C. [3]4-51-2-16 provides:

A nonparty defense that is known by the defendant when the defendant files the defendant's answer shall be pleaded as a part of the first answer. A defendant who gains actual knowledge of a nonparty defense after the filing of an answer may plead the defense with reasonable promptness. However, if the defendant was served with a complaint and summons more than one hundred fifty (150) days before the expiration of the limitation of action applicable to the claimant's claim against the nonparty, the defendant shall plead any nonparty defense not later than forty-five (45) days before the expiration of that limitation of action. The trial court may alter these time limitations or make other suitable time limitations in any manner that is consistent with:

(1) giving the defendant a reasonable opportunity to discover the existence of a nonparty defense; and

(2) giving the claimant a reasonable opportunity to add the nonparty as an additional defendant to the action before the expiration of the period of limitation applicable to the claim.

(emphasis added).

However, this is an unusual case, and it is distinguishable from many of the cases cited by the plaintiffs because those cases simply involve a defendant who failed to investigate and then missed the deadline. None of those cases involve a defendant who relied on the plaintiff's discovery response that no one else was at fault, only to have the plaintiff later say that someone else was actually at fault. This [is] important because the defendant must be afforded a “reasonable opportunity” to discover the existence of a nonparty defendant.

Plaintiffs suggest that the defendant should have known they would ultimately place some blame on Suzanne. They suggest that the defendants could have taken an earlier deposition of Lisa. However, this ignores the fact that they delayed in responding to discovery until late November 2022 and it is understandable that the defendants would not depose the plaintiffs until the written discovery responses were received. It ignores the fact that Lisa believes that Suzanne is partially at fault, but she did not disclose this in her discovery responses.

Under these unusual circumstances, the Court finds that alteration of the time limitations is appropriate and GRANTS the defendants’ motions to amend answers to include nonparty defenses. They must do so within thirty days. Plaintiffs may argue that this does not give them a “reasonable opportunity to add the nonparty as an additional party to the action before the expiration of the period of limitation applicable to the claim,” however, the Court specifically finds that the plaintiffs were well aware of Suzanne's involvement and clearly had a reasonable opportunity to add Suzanne as a party before the statute of limitations ran.

To the extent Indiana law does not allow for alteration of the time limitations beyond the statute of limitations, this Court finds that allowing the defendants to add Suzanne as a nonparty is an appropriate sanction under Ind. Trial Rule 37.

Appealed Order at 1-3. Plaintiffs now appeal.

Discussion and Decision

[7] Plaintiffs contend that the trial court erred in granting Defendants’ motion for leave to amend their answers. Indiana Trial Rule 15(A) governs amendments to pleadings and provides in pertinent part,

A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted, and the action has not been placed upon the trial calendar, he may so amend it at any time within thirty [30] days after it is served. Otherwise 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.

Trial courts have broad discretion in granting or denying amendments to pleadings, and we will reverse only if the “court's decision is clearly against the logic and effect of the facts and circumstances before it or the reasonable deductions to be drawn therefrom.” In re Estate of Hurwich, 103 N.E.3d 1135, 1139 (Ind. Ct. App. 2018), aff'd on reh'g, 109 N.E.3d 416. “In reviewing discretionary motions, we will affirm the trial court's ruling if any evidence supports the trial court's decision or if there is any rational basis for the trial court's action.” Fry v. Schroder, 986 N.E.2d 821, 823 (Ind. Ct. App. 2013), trans. denied.

[8] Plaintiffs argue, “Both defendants had over 10 months to discover the existence of a nonparty defense, before the statute of limitations expired, and both defendants had up until approximately March 8, 2023, in which to amend their answers to identify any parties by name as required by [Indiana Code Section] 34-51-2-16[.]” Appellants’ Br. at 10. But this argument disregards Plaintiffs’ failure to mention Suzanne in their amended complaint, as well as Lisa's failure to timely and accurately respond to Mary's interrogatories.⁷ In Lisa's belated response to Mary's interrogatory number 6, she acknowledged only that Suzanne was “in the vicinity immediately before, at the time of, or within one (1) hour after the incident described in [her] Complaint[.]” Appellants’ App. Vol. 2 at 102. Although prompted by the interrogatory, Lisa did not state that Suzanne “witnessed or claimed to have been” a witness to the incident, id., which would have put Defendants on notice that she was a potential nonparty defendant.

[9] It was not until after Lisa was deposed in September 2023 that Defendants became aware that Suzanne was potentially at fault for Lisa's injuries.⁸ Plaintiffs do not challenge the trial court's finding that “it is understandable that the defendants would not depose the plaintiffs until the written discovery responses were received.” Appealed Order at 3. Nor do they specifically argue that the nine-month interval between Defendants’ receipt of Lisa's written discovery responses and Lisa's deposition was unreasonable. The record before us establishes that Plaintiffs have only their own evasiveness and dilatoriness to blame for Defendants not being given “a reasonable opportunity to add the nonparty [i.e., Suzanne,] as an additional defendant to the action before the expiration of the period of limitation applicable to [their] claim[s].” Ind. Code § 34-51-2-16. Consequently, we conclude that the trial court did not abuse its discretion in altering the statute's time limitations and granting Defendants’ motion for leave to amend their answer. The trial court's ruling is affirmed.⁹

[10] Affirmed.

FOOTNOTES

1.   For ease of reference, we refer to the parties and others by their first name where appropriate.

2.   Plaintiffs’ appendix does not include a copy of the chronological case summary as required by Indiana Appellate Rule 50(A)(2)(a).

3.   We obtained the relevant documents from the Odyssey case management system because they were not included in Plaintiffs’ appendix.

4.   Plaintiffs incorrectly state that the summons and complaint were served on June 9, 2022, which is when Plaintiffs filed their return of service with the trial court.

5.   Mary's answer, which includes several erroneous references to David, was included in Defendants’ appendix but not in Plaintiffs’ appendix.

6.   This sentence refers to Mary's interrogatory number 36, which states, “Give the name, address, and telephone number of any person not a party to the immediate litigation who caused or contributed to your alleged accident.” Appellants’ App. Vol. 2 at 118 (Lisa's deposition); id. at 59 (interrogatories attached to Mary's motion to compel). In response to this interrogatory, Lisa stated,Plaintiff by counsel objects to said interrogatory to the extent it calls for a legal conclusion which the plaintiff is not qualified or required to offer. However, without waiving said objections, plaintiff by counsel refers defendant to the relevant factual and legal allegations contained in the complaint for damages and all relevant discovery requests contained herein.Id. at 118. As indicated above, the amended complaint does not mention Suzanne, and Lisa did not state in response to interrogatory number 6 that Suzanne was a witness or claimed to have been a witness to the accident. Plaintiffs assert that nowhere in the interrogatories “were the plaintiffs asked whether they believed any nonparties were at fault.” Appellants’ Br. at 12. This is simply not true.

7.   Plaintiffs complain that Mary “served 52 separate interrogatories upon Lisa that contained more than 100 subparts.” Appellants’ Br. at 12. Defendants observe that Plaintiffs “never asked the trial court for any form of protective order[.]” Appellees’ Br. at 17.

8.   In their statement of facts, Plaintiffs note that “Mary testified [in her deposition, taken on December 4, 2023,] that [Suzanne] called and told her about the incident within a month of when it occurred.” Appellants’ Br. at 8. But Mary was not asked, and did not specifically state, whether Suzanne told her that she witnessed the incident.

9.   We need not address the propriety of the trial court's ruling as a discovery sanction under Indiana Trial Rule 37. That said, Plaintiffs’ argument on this issue is based solely on their claim that nowhere in Mary's interrogatories “were the plaintiffs asked whether they believed any nonparties were at fault[,]” Appellants’ Br. at 12, which we debunked in footnote 6 above.

Crone, Senior Judge.

Chief Judge Altice and Judge Vaidik concur. Altice, C.J., and Vaidik, J., concur.