Court of Appeals of Indiana | Opinion 19A-CT-1244 | November 6, 2019 Page 1 of 9

ATTORNEYS FOR APPELLANT

James R. Fisher

Debra H. Miller

Miller & Fisher, LLC

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Kevin S, Smith

Alexander P. Pinegar

Church, Church, Hittle & Antrim

Noblesville, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Benjamin S. Smith,

Appellant-Plaintiff,

v.

Franklin Township Community 

School Corp.,

Appellee-Defendant. 

November 6, 2019

Court of Appeals Case No.

19A-CT-1244

Appeal from the Marion Superior 

Court

The Hon. James A. Joven, Judge

Trial Court Cause No.

49D13-1810-CT-42794

Bradford, Judge.
Court of Appeals of Indiana | Opinion 19A-CT-1244 | November 6, 2019 Page 2 of 9

Case Summary

[1] In January of 2016, Benjamin Smith’s vehicle collided with a school bus owned 

and operated by the Franklin Township School Corporation (“the School”) in 

Indianapolis, causing him injury. In March of 2016, pursuant to the Indiana 

Tort Claims Act (“ITCA”), Smith sent notice to the School of his intent to file a 

tort claim (“the ITCA Notice”). On July 1, 2018, the Claims Against Public 

Schools Act (“CAPSA”) became law, governing all civil actions or 

administrative proceedings brought against public schools and which includes

its own notice provisions. 

[2] In October of 2018, Smith filed a negligence suit against the School, which 

moved to dismiss Smith’s complaint on the basis that he had failed to provide 

CAPSA notice prior to filing. On January 29, 2019, the trial court dismissed

Smith’s complaint without prejudice. By this time, however, the relevant 

statute of limitations had run, preventing him from simply refiling. On March 

29, 2019, Smith moved for his complaint to be reinstated pursuant to Indiana 

Trial Rule 41(F). On May 9, 2019, the trial court denied Smith’s motion to 

reinstate. As restated, Smith contends that the trial court abused its discretion 

in denying his motion to reinstate because (1) CAPSA does not apply to his 

claim and (2) the ITCA Notice also satisfied the notice requirements of CAPSA 

in any event. Because we conclude that CAPSA does not apply to Smith’s 

claim against the School, we need not reach his second claim and reverse and 

remand with instructions. 

Facts and Procedural History
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[3] On January 7, 2016, Smith was involved in a collision between his vehicle and 

a school bus owned and operated by the School, suffering injuries. Smith sent 

the School an ITCA Notice on March 15, 2016, via certified mail. On July 1, 

2018, CAPSA became law, governing all civil actions or administrative 

proceedings “brought against a public school under the laws of [...] the United 

States [] or [...] Indiana.” Ind. Code § 34-13-3.5-1; see generally Ind. Code ch. 

34-13-3.5. CAPSA requires, inter alia, that a potential plaintiff give notice of a 

civil lawsuit to a public school before it can be initiated, which notice must 

include a request for relief and an opportunity for the school to respond. On 

October 24, 2018, nine days prior to the running of the relevant statute of 

limitations, Smith filed a negligence complaint against the School, prior to 

which he did not provide the School with a separate CAPSA notice. 

[4] On December 26, 2018, the School moved to dismiss Smith’s complaint on the 

basis that he had failed to provide CAPSA notice prior to filing his complaint. 

On or about January 14, 2019, Smith sent a letter to the School demanding 

$500,000.00 to settle his claim and asking for a response within fifteen days. 

On January 29, 2019, the trial court dismissed Smith’s complaint without 

prejudice. By this time, however, the relevant statute of limitations had run. 

[5] On March 29, 2019, Smith moved for his complaint to be reinstated pursuant to 

Indiana Trial Rule 41(F). Smith alleged, inter alia, that “[p]ursuant to Trial 

Rule 41, good cause exist[ed] to reinstate this matter and for all other relief just 

and proper in the premises[.]” Appellant’s App. Vol. II p. 18. On April 15, 

2019, the School responded, alleging that Smith had failed to establish good 
Court of Appeals of Indiana | Opinion 19A-CT-1244 | November 6, 2019 Page 4 of 9

cause to reinstate his complaint because he had not established compliance with 

CAPSA’s notice requirement. The same day, Smith filed a second motion to 

reinstate his complaint. On May 8, 2019, Smith filed a memorandum in 

support of his second motion to reinstate, arguing that (1) the notice 

requirements of ITCA are the only ones that apply to this case, (2) the ITCA 

Notice satisfied those requirements and (3) dismissal for failure to comply with 

the recently-enacted CAPSA’s notice requirements would be “harsh and [...] 

against the interest of justice.” Appellant’s App. p. 44. Smith noted that 

CAPSA “did not even exist at the time notice was given, and only came to be 

mere months prior to the suit being filed.” Appellant’s App. p. 44. On May 9, 

2019, the trial court denied Smith’s motion to reinstate. 

Discussion and Decision

[6] Smith is appealing from the trial court’s denial of his motion to reinstate his 

negligence suit against the School. Indiana Trial Rule 41(F) provides that “[f]or 

good cause shown and within a reasonable time the court may set aside a 

dismissal without prejudice.” We review a trial court’s ruling on a motion to 

reinstate an involuntary dismissal for an abuse of discretion. Cloyd v. Pasternak, 

791 N.E.2d 757, 758 (Ind. Ct. App. 2003). “Judicial discretion has been 

defined as a judge’s privilege to decide and act in accordance with what is fair 

and equitable within the confines of justice.” Id. at 759. “Our review of an 

exercise of judicial discretion must be made in light of and confined to the facts 

and circumstances of a particular case.” Id. We will uphold the trial court’s 

decision unless it “is clearly against the logic and effect of the facts and 
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circumstances before it or if the court has misinterpreted the law.” Natare Corp. 

v. Cardinal Accts., Inc., 874 N.E.2d 1055, 1058 (Ind. Ct. App. 2007). 

I. ITCA

[7] The parties seem to agree that ITCA applies to Smith’s claim, with the School 

arguing only that Smith has failed to establish that the ITCA Notice satisfied 

the notice requirements of ITCA, pointing out that the ITCA Notice does not 

appear in the record on appeal. For his part, Smith points out that the School 

did not claim below that he failed to give it ITCA notice, and “[f]ailure to give 

notice is a defense that a political subdivision must assert in its answer to a 

plaintiff’s complaint.” Fowler v. Brewer, 773 N.E.2d 858, 862 (Ind. Ct. App. 

2002), trans. denied.

1

 Because the School has raised alleged deficiency of ITCA 

notice for the first time on appeal, the claim is waived for appellate 

consideration. See, e.g., Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004) 

(“[A] trial court cannot be found to have erred as to an issue or argument that it 

never had an opportunity to consider. Accordingly, as a general rule, a party 

may not present an argument or issue on appeal unless the party raised that 

argument or issue before the trial court. In such circumstances the argument is 

waived.”) (citations omitted). Under the circumstances, we consider the ITCA 

1

 The ITCA Notice’s absence from the record is almost certainly due to the School’s failure to challenge it 

below, as this obviated any need for Smith to produce it. 
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Notice’s compliance with the notice requirements of ITCA to be conclusively 

established.2 

II. CAPSA

[8] The next question, then, is whether CAPSA also applies to Smith’s claim, with 

the School claiming that it applies and Smith claiming that it does not. CAPSA 

governs all “civil action[s] or [...] administrative proceeding[s] against a public 

school[.]” Ind. Code § 34-13-3.5-4. As for notice requirements, CAPSA

provides that an individual may not initiate a civil or administrative action 

against a public school unless the individual first submits a written notice to the 

public school and its governing body that notifies them “of the alleged violation 

of law and indicates a proposed remedy.” Ind. Code § 34-13-3.5-4. The public 

school has fifteen days to consider and either “[r]emedy the alleged violation or 

violations [or m]ake a written offer to the individual or entity to resolve the 

dispute.” Ind. Code § 34-13-3.5-6. If a plaintiff does not comply with CAPSA’s 

pre-suit notice requirements, the lawsuit is subject to dismissal without 

prejudice. Ind. Code § 34-13-3.5-7. 

[9] Smith contends, inter alia, that applying CAPSA’s provisions to his lawsuit 

would be an impermissible retroactive application. As an initial matter, the 

School claims that Smith has failed to preserve his retroactivity argument. “As 

2

 The School has filed motions to strike sections of Smith’s Brief of Appellant and Reply Brief referring to the 

ITCA Notice, which, as mentioned, does not appear in the record. Because we have concluded that the 

ITCA Notice’s compliance has been conclusively established, however, we need not address these motions 

on their merits. We deny, as moot, both of the School’s motions to strike in an order to be issued 

contemporaneously with this opinion. 
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a general rule, a party may not present an argument or issue to an appellate 

court unless the party raised that argument or issue to the trial court.” GKC Ind.

Theatres, Inc. v. Elk Retail Inv’rs, LLC., 764 N.E.2d 647, 651 (Ind. Ct. App. 2002). 

“The rule of waiver in part protects the integrity of the trial court; it cannot be 

found to have erred as to an issue or argument that it never had an opportunity 

to consider.” Id. 

[10] Under the circumstances, we conclude that Smith did more than enough to 

provide the trial court with an opportunity to rule on the question of 

retroactivity, thereby preserving it for appellate review. In Smith’s second 

motion to reinstate his complaint against the School, he argued, inter alia, that 

dismissal for failure to comply with CAPSA’s notice requirements would be 

“harsh and [...] against the interest of justice[,]” noting that CAPSA “did not 

even exist at the time [ITCA] notice was given, and only came to be mere 

months prior to the suit being filed.” Appellant’s App. p. 44. Although Smith 

did not use the word “retroactive,” his argument is essentially that CAPSA 

should not apply to his claim against the School because it was not yet the law 

when the claim accrued. We would be elevating form over substance if we 

ignored the fact that this is a retroactivity argument in all but name, and 

therefore choose to address it on the merits. State ex rel. Att’y Gen. v. Lake Super.

Ct., 820 N.E.2d 1240, 1252 (Ind. 2005) (“We are unwilling to fortify the armory 

of those who attack the law as famous for its ability to elevate form over 

substance.”). 

[11] Whether a statute or amendment is to be applied retroactively to 

pending cases or only prospectively depends upon the legislature’s 
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intent. Absent an express indication otherwise, we presume that 

the legislature intends statutes and amendments to apply 

prospectively. Brane v. Roth, 590 N.E.2d 587, 590 (Ind. Ct. App. 

1992), reh’g denied, trans. denied; Turner v. Town of Speedway, 528 

N.E.2d 858, 863 (Ind. Ct. App. 1988). Strong and compelling 

reasons must exist for retroactive application. Gosnell v. Indiana 

Soft Water Service, 503 N.E.2d 879, 880 (Ind. 1987).

Chesnut v. Roof, 665 N.E.2d 7, 9 (Ind. Ct. App. 1996). In determining whether a 

statute applies retroactively, “the court must ask whether the new provision 

attaches new legal consequences to events completed before its enactment.” 

Landgraf v. USI Film Prod., 511 U.S. 244, 270–71 (1994). 

[12] We have little trouble concluding that Smith’s retroactivity argument has merit. 

Applying CAPSA’s notice requirements to Smith’s claim would be to attach 

new legal consequences to an event that occurred before CAPSA was the law, 

i.e., retroactively. There is, however, no indication whatsoever that the General 

Assembly intended CAPSA to apply retroactively, much less an express 

indication. We must therefore presume that only prospective application was 

intended. Because we conclude that applying CAPSA to Smith’s claim would 

amount to an impermissible retroactive application, we need not address the 

other grounds on which he argues that CAPSA does not apply here or his claim 

that the ITCA Notice satisfied CAPSA’s notice requirements. 

Conclusion

[13] We conclude that the compliance of Smith’s claim with ITCA notice 

requirements has been conclusively established. We further conclude that 

CAPSA does not apply to Smith’s claim, as that would constitute retroactive
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and, in this case, impermissible application of CAPSA. Because the trial court 

never should have dismissed Smith’s claim for failing to satisfy CAPSA, we 

conclude that it abused its discretion in failing to find good cause to reinstate it. 

[14] We reverse the judgment of the trial court and remand with instructions to 

reinstate Smith’s tort claim against the School. 

Vaidik, C.J., and Riley, J., concur.