                                                                   Aug 25 2015, 8:56 am




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Steven J. Sersic                                           Michael G. Getty
Kevin C. Smith                                             Brad R. Pero
Smith Sersic                                               Hunt Suedhoff Kalamaros, LLP
Munster, Indiana                                           St. Joseph, Michigan



                                            IN THE
    COURT OF APPEALS OF INDIANA

John B. Davis, Sr., as                                     August 25, 2015
Administrator of the Estate of                             Court of Appeals Case No.
John B. Davis, Jr., Deceased,                              45A05-1412-CT-588
Appellant-Petitioner,                                      Appeal from the Lake Superior
                                                           Court.
        v.                                                 The Honorable Elizabeth M.
                                                           Bezak, Judge Pro Tempore.
Edgewater Systems For                                      Trial Court Cause No.
Balanced Living, Inc.,                                     45D11-1405-CT-81
Appellee-Respondent.




Riley, Judge.




Court of Appeals of Indiana | Opinion | 45A05-1412-CT-588 | August 25, 2015               Page 1 of 10
                                    STATEMENT OF THE CASE
[1]   Appellant-Petitioner, John B. Davis, Sr., as Administrator of the Estate of John

      B. Davis, Jr., Deceased (Davis), appeals the trial court’s grant of Appellee-

      Respondent’s, Edgewater Systems for Balanced Living, Inc. (Edgewater),

      motion for judgment on the pleadings pursuant to Indiana Trial Rule 12(C).


[2]   We affirm.


                                                     ISSUES

[3]   Davis raises three issues on appeal, of which we find two issues dispositive and

      which we restate as:


          (1)      Whether the trial court abused its discretion when it granted

                   Edgewater’s motion on the pleadings pursuant to Ind. Trial Rule

                   12(C); and

          (2)      Whether Davis should have been granted an opportunity to amend

                   his Complaint.


                              FACTS AND PROCEDURAL HISTORY


[4]   Edgewater is a community mental health center, specialized in dealing with

      psychiatric crises, including those involving patients with homicidal tendencies,

      acute psychotic symptoms, sudden changes in mental status, or other types of

      mental health issues. At all relevant times, Jamal Gore (Gore) was a patient at

      Edgewater, receiving medical health care. On May 17, 2010, Edgewater

      requested an emergency detention of Gore pursuant to I.C Art. 12-26, which

      Court of Appeals of Indiana | Opinion | 45A05-1412-CT-588 | August 25, 2015   Page 2 of 10
      was supported by a licensed physician. The emergency request averred that

      Gore was non-compliant with his medication, confrontational, aggressive,

      paranoid, “irritable and getting into fights with people.” (Appellant’s App. p.

      22). On May 17, 2010, at approximately 12:45 p.m., the emergency detention

      request was granted by the Gary City; Court. Edgewater sent the order to the

      Gary police department by facsimile, which was received by the department

      that same day at about 2:28 p.m. There is no evidence the detention order was

      executed. On May 24, 2010, Gore killed John Davis, Jr. Gore was prosecuted

      for murder and found guilty but mentally ill. On October 31, 2012, during the

      murder proceedings against Gore, Davis learned of the alleged negligence of

      Edgewater through the testimony of an Edgewater employee.


[5]   On May 1, 2014, Davis filed his Complaint against Edgewater, alleging

      Edgewater “failed to exercise ordinary due diligence or care to follow up on the

      [emergency detention] order or secure or ensure its enforcements from the time

      the order was obtained up to and including the time, seven days later, on May

      24, 2010, when Gore killed John B. Davis, Jr.” (Appellant’s App. p. 8). On

      July 14, 2014, Edgewater filed its Answer, as well as a motion for judgment on

      the pleadings pursuant to Indiana Trial Rule 12(C). On September 12, 2014,

      Davis filed a response to Edgewater’s motion and requested, in the alternative,

      to convert Edgewater’s motion to a T.R. 12(B)(6) motion. On September 24,

      2014, Edgewater responded to Davis’ alternate request. On November 20,

      2014, the trial court conducted a hearing on Edgewater’s motion for judgment




      Court of Appeals of Indiana | Opinion | 45A05-1412-CT-588 | August 25, 2015   Page 3 of 10
      on the pleadings. The following day, the trial court entered an order, granting

      Edgewater’s motion.


[6]   Davis now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                         I. Indiana Trial Rule 12(C)

[7]   Davis contends that the trial court abused its discretion in granting Edgewater’s

      motion for judgment on the pleadings pursuant to T.R. 12(C). Specifically, he

      claims that Edgewater is not civilly immune from the lawsuit.


[8]   We review de novo a trial court’s ruling on a T.R. 12(C) motion for judgment on

      the pleadings. Bell v. Bryant, 2 N.E.3d 716, 719 (Ind. Ct. App. 2013). When

      reviewing a T.R. 12(C) motion, we consider any facts of which we may take

      judicial notice. Id. Also, we accept as true the well-pleaded material facts

      alleged in the complaint, and base our ruling solely on the pleadings. Murray v.

      City of Lawrenceburg, 925 N.E.2d 728, 731 (Ind. 2010). “The ‘pleadings’ consist

      of a complaint and an answer, a reply to any counterclaim, an answer to a

      cross-claim, a third-party complaint, and an answer to a third-party complaint.”

      Consol. Ins. Co. v. Nat’l Water Servs. LLC, 994 N.E.2d 1192, 1196 (Ind. Ct. App.

      2013) (quoting Waldrip v. Waldrip, 976 N.E.2d 102, 110 (Ind. Ct. App. 2012)).

      “Pleadings” also consist of any written instruments attached to a pleading. See

      T.R. 10(C) (“A copy of any written instrument which is an exhibit to a pleading

      is a part thereof for all purposes.”). A motion for judgment on the pleadings

      under T.R. 12(C) should be granted “only where it is clear from the face of the
      Court of Appeals of Indiana | Opinion | 45A05-1412-CT-588 | August 25, 2015   Page 4 of 10
      complaint that under no circumstances could relief be granted.” Murray, 925

      N.E.2d at 731.


[9]   In its motion, Edgewater advanced that it was entitled to civil immunity for the

      claims asserted against it based upon two sub-sections of the mental health care

      provider immunity statute, included at I.C. §§ 34-30-16-1 & -2. As originally

      enacted in 1987, I.C. § 34-4-12.4-3 recognized the common law duty of a

      mental health service provider to warn potential victims of patient-inflicted

      violence. The statute also clarified the conditions a mental health service

      provider must satisfy to qualify for immunity from civil liability. In 1998, the

      statute was amended and recodified as Indiana Code section 34-30-16-1. The

      current version of the statute provides, in pertinent part, that:

              Sec. 1. A mental health service provider is immune from civil
              liability to persons other than the patient for failing to:


              (1) Predict; or


              (2) Warn or take precautions to protect from;


              a patient’s violent behavior unless the patient has communicated
              to the provider of mental health services an actual threat of
              physical violence or other means of harm against a reasonably
              identifiable victim or victims, or evidences conduct or makes
              statements indicating an imminent danger that the patient will
              use physical violence or use other means to cause serious
              personal injury or death to others.




      Court of Appeals of Indiana | Opinion | 45A05-1412-CT-588 | August 25, 2015   Page 5 of 10
[10]   Once a mental health service provider’s duty is triggered, the provider may

       discharge this duty in one of five ways. Specifically:

               Sec. 2. The duty to warn of or to take reasonable precautions to
               provide protection from violent behavior or other serious harm
               arises only under the limited circumstances specified in section 1
               of this chapter. The duty is discharged by a mental health service
               provider who takes one (1) or more of the following actions:


               (1) Makes reasonable attempts to communicate the threat to the
                   victim or victims.


               (2) Makes reasonable efforts to notify a police department or
                   other law enforcement agency having jurisdiction in the
                   patient’s or victim’s place of residence.


               (3) Seeks civil commitment of the patient under [I.C. Art.] 12-26.


               (4) Takes steps reasonably available to the provider to prevent the
                   patient from using physical violence or other means of harm
                   to others until the appropriate law enforcement agency can be
                   summoned and takes custody of the patient.


               (5) Reports the threat of physical violence or other means of
                   harm, within a reasonable period of time after receiving
                   knowledge of the threat, to a physician or psychologist who is
                   designated by the employer of a mental health service
                   provider as an individual who has the responsibility to warn
                   under this chapter.


       I.C. § 34-30-16-2.




       Court of Appeals of Indiana | Opinion | 45A05-1412-CT-588 | August 25, 2015   Page 6 of 10
[11]   Without having to decide whether the span of seven days between the trial

       court’s emergency detention order and the murder qualifies as an “imminent

       danger” under I.C. § 34-30-16-1, we conclude that Edgewater was discharged

       from its duty—assuming a duty arose under I.C. §34-30-16-1—to warn or to

       take reasonable precautions pursuant to I.C. § 34-30-16-2(2) & (3).


[12]   First, under section 2 of the statute, the duty to warn or to take reasonable

       precautions created by section 1 is properly discharged by a mental health

       service provider if “reasonable efforts” were undertaken “to notify a police

       department or other law enforcement agency[.]” See I.C. § 34-30-16-2(2). Here,

       the trial court decided that “Edgewater’s conduct in faxing the Emergency

       Order constituted ‘reasonable effort.’” We agree, to a certain extent. By faxing

       the emergency order to the Gary police department and noting the

       Department’s receipt of the order, Edgewater’s actions went beyond a

       “reasonable effort” and rather constitute an actual and successful notification of

       the Gary police department.


[13]   However, Davis now attempts to broaden the “reasonable effort” language of

       the statute by imposing a duty on Edgewater to follow up on the notification

       and to ensure that the police department took action. In construing a statute, it

       is just as important to recognize what a statute does not say as it is to recognize

       what it does say. United Farm Bureau Mut. Ins. Co. v. Steele, 622 N.E.2d 557, 561

       (Ind. Ct. App. 1993), reh’g denied. As such, “[w]e may not read into the statute

       that which is not the expressed intent of the legislature.” Id. Because the

       statute only directs a mental health provider to undertake “reasonable efforts”

       Court of Appeals of Indiana | Opinion | 45A05-1412-CT-588 | August 25, 2015   Page 7 of 10
       without more in order to be discharged of its duty and to be entitled to civil

       immunity, and is silent as to any further action on the part of the mental health

       provider, we decline to enlarge the statutory language to incorporate a duty as

       suggested by Davis.


[14]   Furthermore, Edgewater sought and obtained an emergency detention order for

       Gore. Pursuant to I.C. § 34-30-16-2(3), a mental health provider’s duty to warn

       is discharged if a “civil commitment of the patient under [I.C. Art.] 12-26” is

       sought. In Indiana, an adult person may be civilly committed either voluntarily

       or involuntarily under carefully delineated statutory provisions. Indiana Article

       12-26 provides that involuntary commitment may occur under four

       circumstances: (1) Immediate Detention by law enforcement up to 24 hours, see

       I.C. Ch. 12-26-4 et seq.; (2) Emergency Detention for up to 72 hours, see I.C. Ch.

       12-26-5 et seq.; (3) Temporary Commitment for up to 90 days, see I.C. Ch. 12-

       26-6 et seq.; and (4) Regular Commitment for an indefinite period of time that

       may exceed 90 days, see I.C. Ch. 12-26-7 et seq. Thus, as Edgewater obtained an

       emergency detention order, it prevailed in seeking an involuntary civil

       commitment “under [I.C. Art.] 12-26” and properly discharged its duty to

       warn. See I.C. § 34-30-16-2(3). Assuming that Edgewater’s duty to warn had

       been triggered, Edgewater properly regained its immunity from civil liability by

       fulfilling its obligations of I.C. §§ 34-30-16-2(2); and -2(3). Concluding that no

       circumstances exist under which relief could be granted, we affirm the trial

       court’s grant of Edgewater’s motion for judgment on the pleadings.


                                         II. Amendment of Complaint
       Court of Appeals of Indiana | Opinion | 45A05-1412-CT-588 | August 25, 2015   Page 8 of 10
[15]   Davis contends that even if Edgewater’s motion for judgment on the pleadings

       is granted, he should be allowed ten days to amend his Complaint. In other

       words, Davis asserts that Edgewater’s motion pursuant to T.R. 12(C) is more

       properly characterized as a motion pursuant to T.R. 12(B) as the “real

       gravamen of the Order [] is whether the Complaint fails to state a claim.”

       (Appellant’s Br. p. 10).


[16]   Even if we were to characterize Edgewater’s motion as a motion pursuant to

       T.R. 12(B), we note that “[a] [T.R.] 12(B)(6) motion filed after an answer will

       be treated as a motion for judgment on the pleadings under [T.R.] 12(C).” Bell,

       2N.E.3d at 719 (quoting DeHart v. Anderson, 383 N.E.2d 431, 436 (Ind. Ct. App.

       1978)). Edgewater filed its motion after it filed its answer to Davis’ Complaint.

       As the requirements of T.R. 12(C) do not include an opportunity to amend the

       Complaint, we affirm the trial court.


[17]   Moreover, as pointed out by Edgewater, “an attempted amendment of the

       Complaint would be waste of the parties’ time and judicial resources because

       [Davis] cannot change the facts that underlie his action—he cannot plead

       around Edgewater’s civil immunity defenses[.]” (Appellee’s Br. p. 12). Our

       supreme court has stated:

               The granting of a Rule 12(b) motion merely means that the
               plaintiff has failed to satisfy one of the procedural prerequisites
               for asserting his claim for relief. A motion for judgment on the
               pleadings, however, theoretically is directed towards a
               determination of the substantive merits of the controversy.



       Court of Appeals of Indiana | Opinion | 45A05-1412-CT-588 | August 25, 2015   Page 9 of 10
               The mere fact that these procedural defects are raised in the guise
               of a Rule 12(c) motion should not affect the manner by which the
               court determines what essentially are Rule 12(b) matters. In this
               context, Rule 12(c) is merely serving as an auxiliary device that
               enables a party to assert certain procedural defenses after the
               close of the pleadings.


       Davis ex rel. Davis v. Ford Motor Co., 747 N. E.2d 1146, 1150 (Ind. 2001) (quoting

       Wright & Miller, FEDERAL PRACTICE AND PROCEDURE §§ 1369, 1368). Thus,

       a T.R. 12(B) motion is essentially procedural, while a T.R. 12(C) motion is

       substantive unless it is brought on T.R. 12(B) grounds.


[18]   Here, Edgewater asserted a civil immunity defense in its motion for judgment

       on the pleadings. By claiming immunity, Edgewater is not relying on a

       procedural defect in Davis’ Complaint, rather Edgewater is advancing a

       “determination of the substantive merits of the controversy.” See id.

       Accordingly, any amendment of the Complaint will not alter the existence of

       Edgewater’s civil immunity defense.


                                                CONCLUSION

[19]   Based on the foregoing, we affirm the trial court’s Order granting Edgewater’s

       motion for judgment on the pleadings, and we deny Davis’ request for an

       opportunity to amend his Complaint.


[20]   Affirmed.


[21]   Friedlander, J. and Brown, J. concur


       Court of Appeals of Indiana | Opinion | 45A05-1412-CT-588 | August 25, 2015   Page 10 of 10
