## FOR PUBLICATION

ATTORNEY FOR APPELLANT : ATTORNEY S FOR APPELLEE : C. STUART CARTER JEFFREY D. HAWKINS The Law Office of C. Stuart Carter BETH A. SCHENBERG Indianapolis, Indiana CRYSTAL G. ROWE Kightlingher & Gray, LLP Indianapolis and New Albany, Indian a



## IN THE COURT OF APPEALS OF INDIANA

MELANIE WEBSTER , ) ) Appellant

- Plaintiff, ) ) vs. ) No. 55A01

- 1110

- CT

- 442 ) WALGREEN CO. , ) ) Appellee

- Defendant

. )

APPEAL FROM THE MORGAN SUPERIOR COURT The Honorable Jane Spencer Craney , Judge Caus e No. 55D03

- 1012

- CT

- 471

April 4, 2012

OPINION
- FOR PUBLICATION
CRONE, Judge2 Case Summary Melanie Webster filed a complaint against Walgreen Co. by certified mail. Her first attempt at mailing the complaint was returned due to insufficient p ostage. By the time Webster resent and filed the complaint, the statute of limitations had run. Webster filed a motion to amend the filing date of her complaint to the date that she had originally sent the complaint , which was within the statute of limit ations . The trial court denied the motion and thereafter granted Walgreen judgment on the pleadings because the complaint was untimely. Webster appeals the denial of her motion to amend the filing date. We conclude that “mailing” for purposes of the Ind iana Trial Rules requires the sender to affix sufficient postage. Therefore, Webster’s complaint was not filed until her second attempt at mailing and was untimely. We affirm the judgment of the trial court. Facts and Procedural History Webster ’s compla int alleges that on December 17, 2008, she slipped and fell at Walgreen’s Mooresville store due to Walgreen’s negligent failure to remove ice and snow from the sidewalk. On December 13, 2010, Webster’s attorney , C. Stuart Carter, placed the complaint, sum mons, appearance, and filing fee in an envelope , which he weighed himself. Carter’s postage scale indicated that the envelope weighed six ounces. Carter used Stamps.com to determine that the appropriate amount of postage to send the envelope by certified mail was $6.83. Carter printed the stamp and deposited the envelope in the mail. The postal service apparently reweighed the envelope and determined that it weighed slightly more than six ounces and that there was $.17 postage due. The postal service3

d elivered the envelope to the clerk of the Morgan County Court s on December 14, 2010, and the clerk declined to pay the postage due. 1 The envelope was returned to Carter on December 21, 2010, a few days after the two

- year statute of limitations had run. W ithout opening the envelope, Carter reweighed it. His scale still read six ounces, but he decided to print a stamp for eight ounces to give himself a margin of error. Carter placed the new stamp on the envelope and resent it on December 21. The clerk re ceived it the next day and stamped the complaint filed on December 22, 2010. On December 30, 2010, Webster filed a motion to amend the filing date to December 13, the date it had initially been sent by certified mail. Walgreen filed an objection to Webst er’s motion, and Webster filed a reply. Webster attached several exhibits to the reply, including a printout of the postal service’s track and confirm records for the envelope and an affidavit from Carter explaining the actions that he had taken to file t he complaint. After a hearing on March 4, 2011, the trial court denied Webster’s motion. Thereafter, Walgreen filed a motion for judgment on the pleadings, asserting that the complaint had been filed outside the statute of limitations . Webster did not dispute that with a filing date of December 22, 2010, the complaint was untimely. Therefore, on September 6, 2011, the trial court granted Walgreen’s motion for judgment on the pleadings. Webster now appeals the court’s underlying ruling denying her moti on to amend the filing date.

1 Carter also made a slight error in the clerk’s address; nevertheless, the postal service was still able to deliver it to the clerk the following day. Because the erroneous ad dress did not affect the timing of the filing of the complaint, we decline to address Walgreen’s arguments to the extent that they concern the erroneous address.4 Discussion and Decision As a preliminary matter, we address Walgreen’s argument that Webster has waived review of the March 4, 2011 order denying her motion to amend the filing date. Walgreen notes that Webster identified th e September 6, 2011 judgment on the pleadings as the appealed order in her notice of appeal and amended appellant’s case summary. Further, Walgreen notes that Webster included the September 6 order in her brief and appendix, but not the March 4 order. Th us, Walgreen argues that Webster has not appealed the March 4 order and cannot challenge the September 6 order because she did not oppose it in the trial

court. Webster’s arguments on appeal are clearly addressed to the March 4 order and not the September 6 order. There is no requirement that an interlocutory appeal be taken; a party may elect to wait until the end of litigation and raise the issue on appeal from the final judgment. Georgos v. Jackson , 790 N.E.2d 448, 452 (Ind. 2003). Furthermore, we ha ve previously declined to find waiver of review of an interlocutory order based on the failure to include it in the notice of appeal. See Newman v. Jewi sh Cm ty

. Ctr

. Ass ’n of Ind ianapolis , 875 N.E.2d 729 , 734 (Ind. Ct. App. 2008) (on appeal from final jud gment, plaintiff challenged interlocutory order dismissing some of the defendants, but did not attach that order to her notice of appeal; we declined to find that review of the interlocutory order had been waived) , trans. denied

. Webster should have inclu ded the March 4 order in her appendix. See Ind. Appellate Rule 50(A)(2) ( appellant’s appendix shall contain “the appealed judgment or order” and any5

document “necessary for resolution of the issues raised on appeal” ). Nevertheless, her failure to do so h as not hindered us from conducting our review. The trial court made no findings of fact or conclusions thereon, and the fact that the trial court denied the motion to amend the filing date is not in dispute. The transcript and the chronological case summ ary both reflect that the motion was denied , and Walgreen has included the order in its appellee’s appendix. We conclude that Webster is appealing the March 4 order and that there is a sufficient record for us to review that order; therefore, we decline t o find waiver. Our decision turns on the interpretation of the Trial Rules; therefore, our review is de

novo. See Gulf Stream Coach, Inc. v. Cronin , 903 N.E.2d 109, 111 (Ind. Ct. App. 2009) (interpretation of the Trial Rules presents a legal question to be reviewed de novo). Webster argues that her complaint was filed in compliance with Trial Rule 5(F), which states in relevant part: The filing of pleadings, motions, and other papers with the court as required by these rules shall be made by one of the f ollowing methods:

... (3) Mailing to the clerk by registered, certified or express mail return receipt requested;

... Filing by registered or certified mail and by third

- party commercial carrier shall be complete upon mailing or deposit[.] Webster argues tha t a straightforward reading of this rule indicates that her complaint was filed on December 13, 2010, when it was first placed in the mail. Walgreen argues that a pleading has not been “mailed” unless it has adequate postage. In support, Walgreen cites C omer v. Gohil , 664 N.E.2d 389 (Ind. Ct. App. 1996) , trans. denied

. In Comer , the plaintiff placed a medical malpractice complaint in the mail shortly6

before the expiration of the statute of limitations . The postage was insufficient, and the complaint was returned to the plaintiff after the Department of Insurance declined to pay the postage due. By the time the plaintiff had resent the complaint, the statute of limitations had

run. The trial court held that the complaint was untimely filed, and we affir med on appeal. Citing Indiana Code Section 27

- 12

- 7

- 3 (now Indiana Code Section 34

- 18

- 7

- 3(b)), we stated that a “proposed medical malpractice complaint is considered filed when mailed by certified mail to the Commissioner of the Department of Insurance.” Comer , 664 N.E.2d at 391. We noted that “affixing a sufficient amount of postage to the envelope was a matter wholly in [the plaintiff’s] hands,” and concluded that mailing the complaint with insufficient postage did not result in the complaint being file d. Id . at 392. In support of its holding, Comer cited Boostrom v. Bach , 622 N.E.2d 175 (Ind. 1993) , cert. denied

. In Boostrom , the p laintiff mailed a small claims complaint by certified mail on day the statute of limitations was to run, but did not incl ude the filing fee. The c lerk received the complaint, but did not file it until the fee was paid. Our supreme court ruled that the complaint was not filed until the fee was paid. Id . at 176

- 77. In reaching this conclusion, the court noted that payment of the filing fee “is wholly in the hands of the plaintiff,” id . at 177 , and that the court’s “desire to dispose of appeals on the merits whenever possible does not displace the legislative policy which underg irds the statute of limitations, ” that is, to s pare courts from stale claims and insure that parties are given seasonable notice that a claim is being asserted against them. Id . at 176

.7

Webster argues that Comer and Boostrom are not on point; the decision in Comer was based on interpretation of the M edical Malpractice A ct, and Boostrom was a small claims case and did not turn on when the complaint was mailed. Nevertheless, we find the rationale of Comer and Boostrom pe rsuasive. The language in the M e dical Malpractice A ct that was interpreted in Come r is similar to the language of Trial Rule 5. Adequate postage is necessary for effective mailing, and it is in a matter within the plaintiff’s control. In this case, Carter could have taken the envelope to the post office instead of relying on his own

s cale. Alternatively, if he had checked the track and confirm records online , he could have seen that it was rejected by the clerk and still would have had a few days to resend the complaint. Webster has presented us with no authority suggesting that se nding a complaint with insufficient postage constitutes “mailing” for purposes of Trial Rule 5. Nor has she shown that public policy favors allowing her case to proceed. O ur supreme court held in Boostrom that the policy of deciding cases on the merits w henever possible is outweighed by the legislative policy underpinning statutes of limitation. Id

. Although the result is harsh in this case, Webster has not persuaded us that the text of Trial Rule 5 or public policy favor amending the filing date of her complaint. Therefore, we affirm the judgment of the trial

court. Affirmed. VAIDIK, J., and BRADFORD, J., concur.