Court of Appeals of Indiana | Memorandum Decision 18A

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

A TTORNEY S FOR A PPELLANT Edward L. Murphy, Jr. Lauren R. Deitrich R OTHBERG L OGAN & W ARSCO LLP Fort Wayne, Indiana A TTORNEY S FOR A PPELLEE W RECKS , I NC

. Thomas F. O’Gara James R. A. Dawson T AFT S TETTINIUS & H OLLISTER LLP Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Amy D. Martin , Appellant

- Plaintiff ,

v. 

### Lawrence A. Maurer, et al. , Appellee s - Defendants. April 25, 2019 Court of Appeals Ca se No. 18A

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- 2722 Appeal from the Boone Circuit Court The Honorable J. Jeffrey Edens, Judge Trial Court Cause No. 06C01

- 1711

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- 1414

Bailey , Judge
.Court of Appeals of Indiana | Memorandum Decision 18A

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# Case Summary

[1] Amy D. Martin (“Martin”) filed a declaratory action naming as defendants her

ex - husband Lawrence A. Maurer (“Maurer”) 1 and Wrecks, Inc. (“Wrecks”). Wrecks moved to dismiss , asserting

— inter alia

— dismissal was proper under Trial Rule 12(B)(8) because the same action was pending in a different court. The trial court dismissed the action , citing Rule 12(B)(8) and other grounds. Martin filed a motion to reconsider and a motion to correct error, which were denied. Martin now appeals, challenging dismissal of the action and alleging invited error. Concluding that dismissal was proper under Trial Rule 12(B)(8) irrespective of any alleged invited error , we affirm the trial court in all respects.



# Facts and Procedural History

[2] Martin and Maurer dissolved their marriage in 2010 pursuant to a settlement agreement in which Maurer represented and warranted having a 20% interest in “real estate and other assets related to ” Wrecks

. Appellant’s App. Vol. 2 at 60

. The settlement agreement

— incorporated into a dissolution decree entered in Hamilton County

— specified that Martin would receive 55% “of the net proceeds of sale and/or any asset distribution and/or any other form of distribution of value ” from Maurer’s represented 20% interest in Wrecks

. Id.

1 Maurer did not appear in this action and does not actively participate on appeal.Court of Appeals of Indiana | Memorandum Decision 18A

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[3] In early 2015, Martin filed a motion for proceedings supplemental in the Hamilton Circuit Court . Martin named Wrecks as a garnishee defendant and alleg ed that Wrecks recently sold real estate, refused to pay Martin any portion of the proceeds, and had denied that Maurer had any interest in the proceeds.
Martin alleged that “Wrecks should be summoned to answer regarding any
p roperty of [Maurer’s] in its possession. ” Id. at 72. Wrecks filed a responsive pleading in which it denied Maurer had any interest in Wrecks or its assets

. Thereafter, Martin petitioned to set aside the dissolution decree , alleging that Maurer fraudulently misrepresented his interest in assets pertaining to Wrecks.

[4] At some point, Wrecks moved to bifurcate the fraud claim and the garnishment claim, seeking a stay of action against Wrecks until a ruling on the petition to set aside the decr ee

. In March 2016, the Hamilton Circuit C ourt bifurcated the claims and ordered a stay of further proceedings against Wrecks as a party . In its bifurcation order, the court reasoned that “if Martin is successful in having the Divorce Decree set aside for fraud, then no judgment potentially involving Maurer’s purported interest in Wrecks would exist, and there would no longer be a basis for Wrecks to be included as a garnishee defendant.” Id. at 12 6

- 2 7

.

[5] In November 2017

— during the stay concerning Wrecks i n Hamilton County

— Martin filed the instant Boone County action against Wrecks and Maurer . In her Complaint for Declaratory Judgment , Martin referred to the dissolution decree and asserted that “[a]n actual controversy exists as to whether Maurer
holds a 20% interest in the proceeds of real estate sold by Wrecks.” Id. at 25.
Martin noted the pending Hamilton County action but alleged that Wrecks

— inCourt of Appeals of Indiana | Memorandum Decision 18A

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moving to bifurcate claims

— “argued that

. . . proceedings supplemental was not the proper forum for the cla im asserted by Martin” and that the matter should be dealt with in a separate action between Maurer and Wrecks

. Id. at 26 . Martin sought “a declaratory judgment determining that Maurer has an enforceable interest in the proceeds of real estate sold by Wr ecks which would be subject to the Property Settlement Order in the Dissolution Action.” Id.

[6] In January 2018, Wrecks filed a motion to dismiss the Boone County action, alleging

— inter alia

— dismissal was proper under Trial Rule 12(B)(8). A few
months later , during the pendency of Wrecks ’s motion to dismiss the Boone County action, Martin filed a motion in the Hamilton Circuit C ourt , requesting a lift of any stay so that Martin could withdraw her claim against only Wrecks. The Hamilton Circuit Court denied this motion in April 201 8

.

[7] On June 28, 2018, the Boone Circuit Court granted Wrecks’s motion to dismiss the declaratory action . A few days later, on July 3, 2018, the Hamilton Circuit
Court reconsidered its refusal to lift the stay and granted Martin’s motion to withdraw the claim against Wreck s, dismissing that claim without prejudice . In light of this development, Martin moved the Boone Circuit Court to reconsider its dismissal or , in the alternative, correct error. These motion s were denied.

[8] Martin now appeals.Court of Appeals of Indiana | Memorandum Decision 18A

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# Discussion and Decision

[9] Indiana Trial Rule 12(B)(8) permits dismissal of an action where “[t]he same action [is] pending in another state court of this state.” This rule “applies where the parties, subject matter, and remedies are precisely the same, and it also applies when they are only substantially the same.” Beatty v. Liberty Mut. Ins. Grp

. , 893 N.E.2d 1079, 1084 (Ind. Ct. App. 2008)

. Whether two actions are the

same under the rule “depends on whether the outcome of one action will affect the adjudication of the other.” Kentner v. Ind. Pub. Employers’ Plan, Inc. , 852 N.E.2d 565, 570 (Ind. Ct. App. 2006) (quoting Vannatta v. Chandler , 810 N.E.2d 1108, 1110 (Ind. Ct. App. 2004)) , trans. denied

. “ [ I ] nasmuch as it i s a question of law,” we apply a de novo standard of review to the grant or denial of a motion to dismiss under Trial Rule 12(B)(8). 2 Id.

[10] At the time the Boone Circuit Court granted the motion to dismiss under Rule 12(B)(8), there was a pending action in the Hamilton Circuit Court involving the same parties : Martin, Maurer, and Wrecks. After the stay ordered in the Hamilton County c ase, the litigation would initially concern whether to set aside the decree because of a fraudulent misrepresentation that Maurer had an interest in certain assets of Wrecks

. Relatedly, the Boone County case was

2 Thus, to the extent Martin notes that the Hamilton Circuit Court characterized the matters as “separate and independent,” Br. of Appellant at 19, we owe no deference to that determination

. Further, to the extent Martin suggests Wrecks relies on matters outside the record, we have constrain ed our review to the record.Court of Appeals of Indiana | Memorandum Decision 18A

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designed to answer whether Maurer made a misrepresentation at all , as Martin sought a declaratory judgment “that Maurer has an interest in the proceeds of
the s ale of real estate by Wrecks which is therefore subject to the Property Settlement Order in the Dissolution Action.” App ellant’s App. Vol. 2 at 26.

[11] In arguing that the matters are not substantially the same and that the Boone Circuit Court erred in dismis sing the action, Martin focuses on language in the July 2018 order of the Hamilton Circuit Court

— entered subsequent to the Trial Rule 12(B)(8) dismissal

. In that order, the Hamilton Circuit Court determined that the declaratory action “is a separate and i ndependent claim from the dissolution of marriage action” pending before it. App ellant’s App. Vol. 3 at 7. Martin suggest s , without citation, that the Boone Circuit Court erred by failing

to “ explain that conflict , ” Br. of Appellant at 17, or otherwise “interpret the Hamilton Circuit Court Order” when ruling on Martin’s motions , id. at 18

. We disagree , however, because events subsequent to an order do not render that order erroneous. See Styck v. Karnes , 462 N.E.2d 1327, 1331 (Ind. Ct. App. 1984) (noti ng that events subsequent to trial did not constitute newly discovered evidence and that “[t]he proper method

. . . to enlighten the trial court is through T.R. 60(B) which specifically provides [for] relief from a judgment”). 3

3 Martin briefly argues that the Boone Circuit Court erred in paragraph 29 of its written order concerning the motion t o reconsider. Therein, the Boone Circuit Court determined that the motion had been “deemed denied” under Trial Rule 53.4(A). App ellant’s App . Vol. 2 at 20. M artin argues that the c ourt incorrectly applied the rule. Yet, this argument is unavailing because the court nevertheless “in the alternative denie[d] the Motion to Reconsider.” Id. ; see Ind. App. R. 66(A) (“No error or effect in any ruling or order or i nCourt of Appeals of Indiana | Memorandum Decision 18A

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[12] Martin also argues that the practical effect of contradictory rulings in Boone County and Hamilton County is to “deprive [her] of a court to hear her claim against Wrecks.” Br. of Appellant at 17. Yet, when the Hamilton Circuit Court dismissed Wrecks as a party, it did so without p rejudice. Martin further asserts that “[i]n view of the Boone Circuit Court Order, [Martin] is without a court to determine [Maurer’s] interest, if any, in Wrecks.” Id

. at 19

. Yet , in the proceedings supplemental against Maurer , Martin and Maurer could litigate whether Maurer has an interest in Wrecks

.

[13] We conclude that the matters were substantially the same

. Although framed differently, the predicate for both matters was Martin’s purported interest

— conferred by dissolution decree

— in any assets distrib uted to Maurer from his represented interest in Wrecks. 4 Further , factual determinations in the Boone County case would bear on an issue central to the Hamilton County case : whether there was a misrepresentation. Because the actions were substantially
th e same , dismissal was proper under Trial Rule 12(B)( 8 ). Moreover , even after the Hamilton Circuit Court dismissed Wrecks as a party, dismissal remained proper because the outcome of the Boone County case would affect the

anything done or omitted by the trial court

. . . is ground for granting relief or reversal on appeal where its probable impact

. . . is sufficiently minor so as not to affect the substantial rights of the parties.” ).

4 Martin characterizes the scope of the Boone County action as potentially encompassing “improper actions” on the part of Wrecks: “If it is shown by the evidence that Wrecks also knew of the provisions of the Property Settlement Agreement, and endeavored to circumvent that agreement by compe nsating [Maurer] in other manners, Wrecks would have liability for those improper actions.” Br. of Appellant at 19

- 20. Martin asserts that she “is attempting to establish” that wrongdoing, Reply Br. at 7, and that she “is entitled to have that claim hear d , ” Br. of Appellant at 20. Yet, Martin did not allege tortious conduct in her Complaint for Declaratory Judgment

. Rather, Martin sought a declaratory judgment regarding an interest in Wrecks.Court of Appeals of Indiana | Memorandum Decision 18A

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adjudication of the other case

— and potentially lead to incompatible results. See
Kentner , 852 N.E.2d at 570. That is, one court could determine that Maurer lacked any interest in Wrecks while the other court could determine that
Maurer possesse d the represented interest.

[14] Martin argue s Wrecks invited any procedural irregularity in its arguments to the Hamilton Circuit Court when seeking bifurcation . Thus, according to Martin, Wrecks cannot avail itself of a Rule 12(B)(8) defense. Yet, Trial Rule 12(B)(8) implements principles underly ing a sound judiciary , including “comity between and among the courts of this state

. . . and judicial efficiency.” Thacker v.
Bartlett , 785 N.E.2d 621, 625 (Ind. Ct. App. 2003). In light of these principles,
even if Wrecks had invited a separate proceeding, we conclude that the Boone Circuit Court did not commit err in granting the timely Rule 12(B)(8) motion. 5

[15] Affirmed.

Riley, J., and Pyle, J., concur.

5 Having reached this conclusion , we need not address arguments concerning other grounds for dismissal

.