Slow-to-arrive counterclaim splits Court of Appeals

A pizza delivery man who arrived at the courthouse with a counterclaim one year and nine months after the complaint had been filed will be able to present his case following a decision by a split Indiana Court of Appeals, which found “justice requires” he should be allowed to serve up his arguments.

William Pumphrey was delivering pizza when he was in an auto accident with Melody Jones on Nov. 30, 2018. Jones filed a complaint against Pumphrey and his employer, RPM Pizza Midwest, alleging she was injured by Pumphrey’s negligence.

Defense counsel subsequently contacted Pumphrey and scheduled a meeting for April 14, 2019. Pumphrey did not keep the appointment and the attorney was unable to locate or contact him. The litigation moved forward without Pumphrey, but in October 2020, an associate attorney working in defense counsel’s firm found Pumphrey working at a different RPM store.

Pumphrey, who claimed he had not received any communication from defense counsel since early 2019, provided a differing account of the collision and indicated he was continuing to receive medical treatment. Defense counsel filed a motion to amend the answer to assert a counterclaim on Nov. 25, 2020, and, with no response from the Hamilton Superior Court, filed his counterclaim five days later.

The trial court denied the motion without explanation and Pumphrey turned to the Court of Appeals.

In William Pumphrey, III, RPM Pizza Midwest, LLC, d/b/a Domino’s Pizza, and Millbank Insurance Company v. Melody Jones, 21A-CT-47, a majority of the appellate panel reversed and remanded.

The majority cited Indiana Trial Rule 13(F) which, in part, enables a counterclaim to be made by amendment when “justice requires” the pleader be allowed to do so. Also, the appellate panel looked to Crider v. State Exchange Bank of Culver, 487 N.E.2d 1345 (Ind. Ct. App. 1986), trans. denied, and found the plaintiff had been allowed to amend his answer more than two years after several issues had already been litigated.

Noting the facts in Pumphrey’s case were “much more compelling,” the Court of Appeals majority overturned the trial court’s ruling because, per Ind. Trial Rule 13(F), “justice requires” his motion be granted.

“While the eighteen-month delay was lengthy, there is no indication that Pumphrey acted in bad faith or with dilatory motive,” Judge Robert Altice wrote for the majority. “He had simply gone on with his life — dealing with his injuries from the accident, going through a domestic breakup, and working at a new location delivering pizza — unaware of the ongoing communication attempts from Defense Counsel or the need for his additional cooperation in defending against the lawsuit. Additionally, prior to being located … in October 2020, Pumphrey had not provided his side of the story to Defense Counsel, and he immediately and fully cooperated with Defense Counsel after being located. Once his version came to light, the Motion to Amend was promptly filed.”

But Judge James Kirsch dissented, asserting that by allowing Pumphrey’s motion filed one year and nine months after Jones filed her complaint, the majority “has reweighed the evidence, substituted its judgment for the trial court, and failed to apply the standards for belated counterclaims as set forth in Indiana Trial Rules 13(F).”

Kirsch pointed to Pumphrey not appearing for the April 14, 2019, meeting with defense counsel. If he had shown up, the judge reasoned, Pumphrey likely could have discussed the possibility of making a counterclaim and given his updated contact information to the attorney.

“… I acknowledge that the stakes are high for Pumphrey because his counterclaim is a mandatory counterclaim and, as such, could not be raised in a subsequent proceeding. … Nonetheless, the decision to grant his motion to amend answer was still a matter of trial court discretion,” Kirsch wrote, citing Freedom Exp., Inc. v. Merch. Warehouse Co., 647 N.E. 2d 648, 653 (Ind. Ct. App. 1995). “… Given the facts before the trial court, the reasonable inference arising therefrom, the trial court’s discretion to accept or reject Pumphrey’s version of the events, I cannot agree that the trial court abused its discretion in denying Pumphrey’s Motion to Amend.”

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