Court of Appeals of Indiana | Opinion 79A02-1409-CT-679 |April 13, 2015 Page 1 of 11

ATTORNEYS FOR APPELLANT

W. Brent Threlkeld

Paul A. Jansen

Threlkeld & Associates

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

John P. Schafer

Michael J. Stapleton

Ball Eggleston PC

Lafayette, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Israel Munoz,

Appellant-Defendant,

v.

Jerome Woroszylo,

Appellee-Plaintiff

April 13, 2015

Court of Appeals Case No.

79A02-1409-CT-679

Appeal from the Tippecanoe County 

Superior Court

The Honorable Thomas H. Busch,

Judge 

Cause No. 79D02-1406-CT-13

Bailey, Judge.
Court of Appeals of Indiana | Opinion 79A02-1409-CT-679 |April 13, 2015 Page 2 of 11

Case Summary

[1] After a car accident, Israel Munoz (“Munoz”), an Indiana resident, was sued by 

Jerome Woroszylo (“Woroszylo”), an Illinois resident, in a federal court in 

Illinois. Woroszylo filed his case in the federal court shortly before the 

limitations period for a suit expired. Concluding that it lacked personal 

jurisdiction over Munoz, the federal court in Illinois dismissed Woroszylo’s 

action.

[2] Woroszylo subsequently filed suit in Tippecanoe County, relying upon the 

Journey’s Account Statute1to preserve his action. Munoz moved to dismiss, 

contending that the statute did not operate to preserve Woroszylo’s claim. The 

trial court denied Munoz’s motion to dismiss. Munoz sought leave to pursue a 

discretionary interlocutory appeal of the trial court’s order; we granted Munoz’s 

motion.

[3] We affirm.

Facts and Procedural History

[4] Our statement of the facts in this case follows the standard of review for appeals 

from a motion to dismiss; we accordingly take as true uncontroverted facts as 

alleged in the complaint.

 

1

See Ind. Code § 34-11-8-1.
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[5] On November 29, 2011, Munoz, a resident of Lafayette, and Woroszylo, a 

resident of Chicago, Illinois, were involved in a car accident in Clinton County, 

Indiana. Woroszylo was injured.

[6] On November 11, 2013, Woroszylo filed a complaint for damages against 

Munoz in the U.S. District Court for the Northern District of Illinois. Munoz 

filed a motion to dismiss the case.

[7] On April 4, 2014, the federal court granted Munoz’s motion, observing that 

Woroszylo conceded that the U.S. District Court for the Northern District of 

Illinois lacked personal jurisdiction over Munoz. Rather than order 

Woroszylo’s action transferred to the U.S. District Court for the Northern 

District of Indiana, which had personal jurisdiction over Munoz, the federal 

court instead dismissed Woroszylo’s action. 

[8] After this, on April 15, 2014, Woroszylo filed a complaint in Tippecanoe 

County, alleging that Munoz was negligent and that this negligence caused 

Woroszylo’s injuries on November 29, 2011.

[9] On June 12, 2014, Munoz filed his motion to dismiss, in which he alleged that 

Woroszylo’s complaint was not timely filed within the two-year statute of 

limitation applicable to personal injury claims.2 In response, Woroszylo argued 

that his claim had been properly preserved and was not time barred under the 

 

2

See Ind. Code § 34-11-2-4(a), providing that an action for injury to a person must be commenced within two 

years after the claim has accrued.
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Journey’s Account Statute. Munoz replied, arguing that the circumstances of 

the dismissal of Woroszylo’s action in the federal court amounted to negligence 

under the terms of the Journey’s Account Statute, as a result of which the 

statute did not operate to save Woroszylo’s claim from dismissal under the 

applicable statute of limitation. 

[10] On July 31, 2014, after a hearing featuring only argument of the parties, the 

trial court denied Munoz’s motion to dismiss.

[11] On August 29, 2014, Munoz sought this Court’s discretionary interlocutory 

review of the order. On September 3, 2014, the trial court certified for 

interlocutory appeal its denial of the motion to dismiss. This Court accepted 

jurisdiction over this appeal on October 31, 2014.

[12] This appeal ensued.

Discussion and Decision

Standard of Review

[13] Munoz appeals the trial court’s denial of his motion to dismiss for failure to 

state a claim, as provided by Trial Rule 12(B)(6). A motion to dismiss for 

failure to state a claim tests the legal sufficiency of the claim, but not the 

supporting facts. Charter One Mortg. Corp. v. Condra, 865 N.E.2d 602, 604 (Ind. 

2007).
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[14] However, the parties submitted additional materials for the trial court’s 

consideration. Where a party designates matters outside the pleadings, a 

motion to dismiss under Rule 12(B)(6) is treated as a motion for summary 

judgment under Rule 56. Ind. Trial Rule 12(B). We accordingly review this 

matter as an appeal from the denial of summary judgment, with Munoz as the 

movant.

[15] Our standard of review upon appeal from a trial court’s ruling at summary 

judgment is well settled. Summary judgment is appropriate only where there is 

no genuine issue of material fact and the moving party is entitled to judgment as 

a matter of law. T.R. 56(C); Shi v. Yi, 921 N.E.2d 31, 39 (Ind. Ct. App. 2010). 

Our review of an order upon a motion for summary judgment is limited to the 

materials designated to the trial court. Shi, 921 N.E.2d at 39. We draw all facts 

and reasonable inferences therefrom in favor of the nonmovant, and we review 

summary judgment decisions carefully to ensure a party was not improperly 

denied its day in court. Id.

The Journey’s Account Statute

[16] At the trial court, Munoz sought to dismiss Woroszylo’s complaint on the 

theory that the statute of limitation had run, and thus Woroszylo’ complaint 

was not timely filed. Woroszylo defended the action by claiming that his claim 

had been preserved under the Journey’s Account Statute (“the Statute”), and 

the trial court agreed, denying Munoz’s motion to dismiss.

[17] The Statute provides:
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(a) This section applies if a plaintiff commences an action and:

(1) the plaintiff fails in the action from any cause except 

negligence in the prosecution of the action;

(2) the action abates or is defeated by the death of a party; or

(3) a judgment is arrested or reversed on appeal.

(b) If subsection (a) applies, a new action may be brought not later 

than the later of:

(1) three (3) years after the date of the determination under 

subsection (a); or

(2) the last date an action could have been commenced under 

the statute of limitations governing the original action;

and be considered a continuation of the original action commenced by 

the plaintiff.

I.C. § 34-11-8-1.

[18] The Statute is a legislative enactment that takes the place of common law 

remedies intended to permit lawsuits to continue after dismissals on technical 

grounds. See Al-Challah v. Barger Packaging, 820 N.E.2d 670, 674 (Ind. Ct. App. 

2005) (citing Vesolowski v. Repay, 520 N.E.2d 433, 434 (Ind. 1988)). The 

Statute’s purpose “is to provide for continuation when a plaintiff fails to obtain 

a decision on the merits for some reason other than his own neglect and the 

statute of limitations expires while his suit is pending.” Id. The Statute 

“generally permits a party to refile an action that has been dismissed on 

technical grounds.” Dempsey v. Belanger, 959 N.E.2d 861, 865 (Ind. Ct. App. 

2011), trans. denied. To successfully invoke the Statute, “the claimant must have 

commenced a timely action that failed for reasons other than ‘negligence in the 

prosecution.’” Id. at 866 (quoting Eads, 932 N.E.2d at 1243). The Statute “‘is 

designed to ensure that the diligent suitor retains the right to a hearing in court 
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until he receives a judgment on the merits.’” McGill v. Ling, 801 N.E.2d 678, 

684 (Ind. Ct. App. 2004) (quoting Vesolowski, 520 N.E.2d at 434). Thus, the 

Statute “is to be construed liberally to protect such diligent suitors.” Id.

[19] The Indiana Supreme Court has observed that “negligence in the prosecution” 

as set forth in the Statute “is broader than its origin in ‘failure to ... prosecute as 

required by Indiana Trial Rule 41(E),’ and the term has been said to apply to 

‘any failure of the action due to negligence in the prosecution.’” Eads, 932 

N.E.2d at 1244. Thus, negligence in the prosecution has been held to include 

failure to pay filing fees and naming improper parties. Id. (citing Parks v. 

Madison Cnty., 783 N.E.2d 711, 721 (Ind. Ct. App. 2002); Zambrana v. Anderson, 

549 N.E.2d 1078, 1081 (Ind. Ct. App. 1990)).

[20] But Indiana courts have also held that the Journey’s Account Statute operates 

to save an action from the statute of limitations bar even when the initial suit in 

another jurisdiction failed for lack of personal jurisdiction. Basham v. Penick, 

849 N.E.2d 706, 713 (Ind. Ct. App. 2006) (citing Ullom v. Midland Indus., Inc., 

663 F. Supp. 491 (S.D. Ind. 1987)). Thus, in Basham, another panel of this 

Court concluded that Indiana’s limitations period applied to a motorist’s suit 

that was initially filed, incorrectly, in Kentucky. The Basham Court went on to 

conclude that even though the Kentucky court lacked personal jurisdiction over 

the defendant, Basham could pursue her claim in Indiana’s courts under the 

Journey’s Account Statute where the Kentucky court decided “there is no clear 

cut tip of the scales in favor of either side.” Id. at 713 (citations and quotations 

omitted).
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[21] In response to Woroszylo’s contention that the Statute preserved his claim 

beyond the two-year term of the statute of limitation for negligence actions, 

Munoz argued that Woroszylo’s initiation of an action in the U.S. District 

Court for the Northern District of Illinois was “negligence in the prosecution of 

the action.” I.C. § 34-11-8-1(a)(1). Munoz also argued that Woroszylo’s filing 

in Tippecanoe County failed to meet a good faith requirement held by Indiana 

courts to apply implicitly to cases under the Statute. See Eads v. Community 

Hosp., 932 N.E.2d 1239, 1244 (Ind. 2010).

[22] While Woroszylo’s pursuit of his claim in the U.S. District Court for the 

Northern District of Illinois was plainly a poor decision, we cannot agree with 

Munoz that it amounts to negligence in the prosecution of the action under the 

Statute. Woroszylo filed suit in the federal court before the expiration of the 

Indiana statute of limitations for a personal injury claim. Nor was Woroszylo 

dilatory in filing suit in Indiana after his claim was dismissed from federal 

court: Woroszylo’s original suit was dismissed on April 4, 2014, and he filed 

his claim in Indiana less than two weeks later, on April 15, 2014. Indeed, there 

is no record before us that Woroszylo made any efforts to appeal the federal 

court’s order. At no point did any of this fail to satisfy other statutory bars to 

Woroszylo’s suit, and Munoz’s defense of the suit in the federal court 

demonstrates that he had notice of the claim. See Eads, 932 N.E.2d at 1244 

(observing that failure to pay filing fees and failure to name necessary parties 

have been held as negligent pursuit of litigation under the Statute).
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[23] Munoz contends that, even if Woroszylo’s pursuit of the instant action was not 

negligent, nevertheless Woroszylo cannot meet the good-faith requirement 

imputed to the Statute by case law. Munoz is correct that Woroszylo’s decision 

to file suit in the Northern District of Illinois was a poor one. Indeed, the 

federal court made the following observations in its order:

Absent any indication that [Munoz] would consent to proceed in this 

district prior to the filing of the Complaint, [Woroszylo] could have 

and should have “predicted” that the opposing party in this adversary 

proceeding would refuse to consent [to personal jurisdiction and venue 

in the Northern District of Illinois].

***

Plaintiff’s elementary mistake and ill-advised strategy do not implicate 

the interest of justice, and thus the Court declines the Plaintiff’s 

invitation to transfer the case [to the Northern District of Indiana].

App’x at 28.

[24] The federal court clearly did not consider Woroszylo’s decision to file suit in 

the Northern District of Illinois to be well-advised; indeed, it considered the 

decision to be an “elementary mistake” that Woroszylo’s Illinois counsel 

should have avoided. App’x at 28. The federal court’s decision rejects 

Woroszylo’s proffered rationale of convenience in pursuit of the litigation, 

namely, that Woroszylo and his treating physicians all reside in Illinois and that 

would constitute the most convenient forum for the litigation.

[25] That such an argument would not prevail against a motion to dismiss for lack of 

personal jurisdiction is, as the federal court observed, an elementary 

proposition. But hairsplitting distinctions between “in good faith” and “not in 
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bad faith” aside, there is no evidence that Woroszylo filed suit in federal court 

with intent to abuse judicial process or create undue delay. As the Indiana 

Supreme Court observed in interpreting a prior version of the Indiana statute 

that provides for shifting attorney’s fees as a result of bad faith in litigation:

bad faith is not simply bad judgment or negligence. Rather, it implies 

the conscious doing of a wrong because of dishonest purpose or moral 

obliquity. It is different from the negative idea of negligence in that it 

contemplates a state of mind affirmatively operating with furtive 

design or ill will.

Mitchell v. Mitchell, 695 N.E.2d 920, 924 (Ind. 1998) (citations and quotations 

omitted).

[26] Woroszylo’s decision to file suit in the Northern District of Indiana was bad 

judgment. Bad judgment is not, however, bad faith. Id. Indeed, we note that 

while the federal court had discretionary authority to decline Woroszylo’s 

request that his case be transferred into the U.S. District Court for the Northern 

District of Indiana, see 28 U.S.C. § 1404(a), if Woroszylo had brought suit in an 

improper venue in an Indiana state court, transfer to an Indiana court with 

proper venue would have been mandatory under Indiana’s venue rules. See

T.R. 75(B). This reflects Indiana courts’ general preference for deciding cases 

on their merits and for avoiding the construction of procedural obstacles to the 

presentation of such cases. Lindsey v. De Groot Dairy LLC, 867 N.E.2d 602, 606 

(Ind. Ct. App. 2007), trans. denied. Indeed, the very same policy is served by the 

Journey’s Account Statute.
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[27] For all the foregoing reasons, we find no reversible error in the trial court’s 

denial of Munoz’s motion to dismiss.

[28] Affirmed.

Riley, J., and Barnes, J., concur.