Foley, J.
William R. Mishler (“William”) sued the Union-North United School Corporation (“the School”), claiming he was entitled to certain information under the Access to Public Records Act (“APRA”). The case led to competing motions on summary judgment, which the trial court resolved in favor of the School on grounds that the School complied with APRA. On appeal, we find one issue dispositive, which is whether the Claims Against Public School Act (“CAPSA”) mandates dismissal of this action because William failed to comply with the CAPSA notice requirement set forth in Indiana Code chapter 34-13- 3.5. Concluding that CAPSA mandates dismissal, we affirm the trial court’s resolution of summary judgment but reverse as to the stated grounds, and we ultimately remand with instructions to dismiss the action without prejudice.
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This case involves the interpretation of Indiana Code Section 34-13-3.5-7, titled “Failure to submit notice.” There, our legislature set forth a consequence for failing to comply with CAPSA. See I.C. § 34-13-3.5-7. That is, our legislature directed that “[i]f an individual or entity does not submit the notice described in section 4 of this chapter to a public school before initiating a civil action or an administrative proceeding, a court, administrative law judge, or hearing officer shall dismiss the action without prejudice.” Id. (emphasis added). Our legislature typically uses the word “shall” to express a mandate. See, e.g., In re R.P., 949 N.E.2d 395, 399–400 (Ind. Ct. App. 2011) (collecting cases involving the phrase “shall dismiss” in a statute related to the timeliness of CHINS proceedings). At times, we have been willing to read “shall” as having the same meaning as “may,” i.e., to create a discretionary power rather than an absolute mandate. See generally id. Yet, we do so only in limited instances where the discretionary meaning is consistent with legislative intent. See id. Indeed, that nontraditional reading of “shall” is supported only if “the statute fails to specify adverse consequences, the provision does not go to the essence of the statutory purpose, and a mandatory construction would thwart the legislative purpose.” Id. (quoting Parmeter v. Cass Cnty. Dep’t of Child Servs., 878 N.E.2d 444, 448 (Ind. Ct. App. 2007), superseded by statute). In short, “shall” means “shall,” unless that reading defeats the intent of the legislature. See id.
A. Waiver
William claims the School waived any CAPSA defense. He characterizes CAPSA as an affirmative defense and points out that a litigant generally must assert an affirmative defense in a responsive pleading…
William argues that “Indiana courts strictly construe notice requirements derogating a party’s claims.” Reply Br. p. 12. According to William, CAPSA is merely a “pre-suit notice law” that functions like the Indiana Tort Claims Act (“the ITCA”), which requires timely notice before filing a lawsuit against certain governmental entities. Id. at 12….
We disagree with William’s characterization of CAPSA as a “pre-suit notice law” parallel to the ITCA. Id. As the Indiana Supreme Court has explained, the ITCA notice requirement is “intended to ensure that government entities have the opportunity to investigate the incident giving rise to the claim and prepare a defense.” Schoettmer, 992 N.E.2d at 706. Our Supreme Court has described the ITCA notice requirement as a “statute of limitations,” in that the ITCA requires notice within 180 days of the alleged loss. Id. at 708; see I.C. § 34-13-3-8 (generally providing that “a claim against a political subdivision is barred unless notice is filed . . . within one hundred eighty (180) days after the loss occurs”). A defense based on a statute of limitations is generally subject to waiver. Cf. Davis v. Shelter Ins. Cos., 957 N.E.2d 995, 997 (Ind. Ct. App. 2011) (“With some exceptions not relevant here, statutes of limitations are affirmative defenses which must be pled and proven and can be waived.” (citing 51 Am. Jur. 2d Limitations of Actions § 20 (2000))). Thus, based on the structure of the ITCA, it makes sense that a defendant can waive the ITCA notice requirement.
In adopting CAPSA, our legislature did not follow the roadmap of the ITCA. Notably, our legislature declined to establish a statute of limitations. Instead, our legislature provided that a court “shall dismiss” procedurally improper claims. I.C. § 34-13-3.5-7. Furthermore, our legislature went further than the ITCA in designing a framework for negotiations. Those processes—specific to claims against public schools—protect public resources set aside for education. Indeed, with CAPSA, our legislature mandated that would-be litigants not only notify a school of a potential suit, but also propose a specific remedy that would avoid litigation. See I.C. §§ 34-13-3.5-4, -5. Furthermore, in addition to requiring that the public school receive “a specific request for relief,” CAPSA requires that the school have time to formulate a response to the request, ensuring that the school be “[a]llow[ed] . . . to offer the individual or entity the relief requested . . . before the individual or entity initiates a civil action . . . against the public school.” I.C. § 34-13-3.5-5. Our legislature also contemplated that the correspondence might spur additional negotiations prior to any litigation, specifying that a school may “[r]emedy the alleged violation or violations” or “[m]ake a written offer to the individual or entity to resolve the dispute.” I.C. § 34-13-3.5-6. In contrast, although the ITCA requires notice that includes “the amount of the damages sought,” I.C. § 34-13-3-10, the ITCA does not directly contemplate further correspondence, instead providing that “[a] claim is [deemed] denied if the governmental entity fails to approve the claim in its entirety within ninety (90) days, unless the parties have reached a settlement before the expiration of that period,” I.C. § 34-13-3-11. Further, the ITCA does not contain a provision specifically directing a trial court to dismiss a procedurally premature complaint without prejudice. Instead, the ITCA specifies that a claim is untimely if the plaintiff failed to provide “notice . . . within one hundred eighty (180) days after the loss occurs.” I.C. § 34-13-3-8.
By adopting the specific pre-litigation process set forth in CAPSA, our legislature ensured that schools would have a meaningful opportunity to weigh the costs of litigation against the costs of providing the proposed remedy. See generally Ind. Code ch. 34-13-3.5. Moreover, by mandating dismissal as an enforcement mechanism, our legislature ensured that public schools would not begin accruing litigation costs before having the opportunity to consider a settlement offer. See id. Therefore, the structure of CAPSA indicates that our legislature intended to funnel all prospective claims through the pre-litigation processes provided in the statutory scheme.
For the foregoing reasons, we are not persuaded that CAPSA functions like the ITCA’s pre-suit notice requirement rather than as a firm procedural prerequisite to the filing of a lawsuit….
B. Compliance
William asserts that he complied with CAPSA, so the complaint is not subject to dismissal. [Footnote omitted.] William points out he submitted three APRA requests, which he claims “inherently fulfill[ed] CAPSA[.]”…
We are unconvinced that submitting an APRA request is tantamount to giving notice of impending litigation—especially in this case, where William specified in each APRA request that “[t]he request [was] not made in any anticipation . . . of any litigation.”…
The consequence of noncompliance with CAPSA is plain. That is: “If an individual or entity does not submit the notice described in section 4 of this chapter to a public school before initiating a civil action[,] . . . a court . . . shall dismiss the action without prejudice.” Ind. Code § 34-13-3.5-7. Thus, having concluded that William did not comply with the CAPSA notice requirement, we affirm the trial court’s rulings on summary judgment, reverse the grounds underlying those rulings, and remand to the trial court with instructions to dismiss the action without prejudice under Indiana Code section 34-13-3.5-7.
Affirmed in part, reversed in part, and remanded.
Pyle, J., and Tavitas, J., concur.