FOR PUBLICATION

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES:

THOMAS W. VANDER LUITGAREN GEORGE M. PLEWS

BRANDI R. FOSTER ANGELA (DORRELL) GREEN

Van Valer Law Firm, LLP JONATHAN PENN

Greenwood, Indiana Plews Shadley Racher & Braun LLP

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

MITZI BOSLEY, )

)

Appellant-Plaintiff, )

)

vs. ) No. 49A04-1111-PL-599

)

NIKTOB, LLC, DESIGN INDUSTRIES, INC., )

PEG RAIL, INC., and ORIGINNOVATIONS, )

INC., )

)

Appellees-Defendants. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable David J. Dreyer, Judge

Cause No. 49D10-1009-PL-41237

August 27, 2012

OPINION - FOR PUBLICATION

MAY, Judge
2

NIKTOB, LLC, leased a building from Mitzi Bosley. It sued Bosley in Marion 

Superior Court 7 (the “environmental court”) over environmental issues and for breach of 

contract. Bosley subsequently brought, in Marion Superior Court 10 (the “ejectment court”), 

an independent ejectment action. NIKTOB counterclaimed, raising the same environmental 

and contract issues that were pending in the first lawsuit. Bosley moved in the ejectment 

court to dismiss the NIKTOB counterclaim. The ejectment court denied her motion to 

dismiss and granted summary judgment for NIKTOB on the issues it raised in its

counterclaim. Bosley appeals those decisions, and we reverse.1 

FACTS AND PROCEDURAL HISTORY

In August 2008, NIKTOB brought a complaint for damages and declaratory relief (the 

“environmental action”) against Bosley, from whom it leased an industrial building with 

some environmental contamination. It made claims under Ind. Code § 13-30-9-2, which 

provides:

A person may, regardless of whether the person caused or contributed to the 

release of a hazardous substance or petroleum into the surface or subsurface 

soil or groundwater that poses a risk to human health and the environment, 

bring an environmental legal action against a person that caused or contributed 

to the release to recover reasonable costs of a removal or remedial action 

involving the hazardous substances or petroleum.

NIKTOB also alleged Bosley was liable for negligence, nuisance, and trespass in dealing 

with the contaminants, was strictly liable for certain environmental damage, and breached her 

 

1

 As the NIKTOB counterclaim should have been dismissed, we need not address whether the summary 

judgment on those matters was error. See App. at 9, where the trial court noted in its summary judgment order 

that after Bosley moved for summary judgment on her ejectment complaint, NIKTOB “responded and crossmoved for summary judgment on NIKTOB’s counterclaim.” (Emphasis supplied.) 
3

contract with NIKTOB. NIKTOB also sought a declaration that Bosley’s insurer was 

obliged to provide coverage. 

In September 2010, while the environmental action was pending, Bosley brought a 

lawsuit in the ejectment court seeking to eject NIKTOB from the building. She alleged the 

lease had ended, NIKTOB was a holdover tenant, and NIKTOB had not paid the rent it owed 

Bosley. NIKTOB answered and, in March 2011, counterclaimed. All of the allegations 

NIKTOB made in its ejectment counterclaim had already been asserted in the environmental 

action and were repeated virtually verbatim in the ejectment counterclaim.

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In August 2011, 

Bosley moved to dismiss the counterclaim. In October 2011, the ejectment court denied 

Bosley’s motion to dismiss the counterclaim, then granted summary judgment for NIKTOB 

on its counterclaim. 

DISCUSSION AND DECISION

As NIKTOB should not have been permitted to amend its answer in the ejectment 

action to include a counterclaim on issues already pending before another court in the 

environmental action, Bosley’s motion to dismiss the counterclaim should have been granted. 

 

2

 The Appendix includes a Motion to Consolidate that NIKTOB brought in the environmental action, asking 

that the ejectment action be consolidated with the environmental action in the court where the environmental 

action is pending. The motion appears twice in Bosley’s appendix. Neither is dated or file-stamped, but both 

are accompanied by a Certificate of Service that states the motion was mailed March 15, 2011. We cannot 

determine from the record whether the motion was ruled on. (See Appellant’s App. at 268, 295.) In her reply 

brief, Bosley asserts NIKTOB withdrew that motion to consolidate. The page of the appendix to which she 

directs us in support contains the motion itself, but does not indicate the motion was withdrawn. 

 In the motion, NIKTOB asserts the environmental action and the ejectment action “involve common 

questions of law and fact. Both actions involve the same parties (and their affiliates) and both actions involve 

claims relating to the parties’ respective property interests in the Bosley property and the rights of the parties 

under the lease.” (Id. at 296.) 
4

Indiana Trial Rule 12(B)(8) permits the dismissal of an action when “[t]he same action

[is] pending in another state court of this state.” Beatty v. Liberty Mut. Ins. Group, 893 

N.E.2d 1079, 1084 (Ind. Ct. App. 2008). The rule implements the general principle that

when an action is pending in an Indiana court, other Indiana courts must defer to that court’s 

authority over the case. Id. The rule applies even when the parties, subject matter, and 

remedies are only substantially the same. Id. Our review of the trial court’s ruling on 

Bosley’s motion to dismiss under Trial Rule 12(B)(8) is de novo. See id. 

Indiana Trial Rule 13(A) provides:

(A) Compulsory counterclaims. A pleading shall state as a counterclaim any 

claim which at the time of serving the pleading the pleader has against any 

opposing party, if it arises out of the transaction or occurrence that is the 

subject-matter of the opposing party’s claim and does not require for its 

adjudication the presence of third parties of whom the court cannot acquire 

jurisdiction. But the pleader need not state the claim if:

(1) at the time the action was commenced the claim was the subject of another 

pending action[.]

(Emphasis added.) 

It is a “fundamental axiom of law,” State ex rel. American Fletcher Nat’l Bank & 

Trust Co. v. Daugherty, 258 Ind. 632, 634, 283 N.E.2d 526, 528 (1972), that courts of 

concurrent jurisdiction cannot exercise jurisdiction over the same subject at the same time. 

Trial Rule 12(B)(8) implements this principle by allowing dismissal of one action on the 

ground that the same action is pending in another Indiana court. 

Whether two actions being tried in different state courts amount to the same action 

depends on whether the outcome of one action will affect the adjudication of the other. Id. 
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The rule applies and an action should be dismissed where the parties, subject matter, and 

remedies are precisely or even substantially the same in both suits. Id. Thus, when faced 

with a challenge to a decision whether to dismiss on the basis of T.R. 12(B)(8), the critical 

question before us is whether the parties, subject matter, and remedies are either precisely or 

substantially the same. Id. “As a matter of policy and practicality in the operation of our 

judicial system, only one court should be able to exercise jurisdiction over a cause of action 

at any particular time. To hold otherwise would create confusion and chaos in our trial and 

appellate courts.” State ex rel. Coleman v. Hendricks Superior Court II, 272 Ind. 40, 41, 396 

N.E.2d 111, 112 (1979).

NIKTOB’s environmental action and its counterclaim in Bosley’s ejectment action are 

at least substantially the same. All of the allegations NIKTOB made in the ejectment 

counterclaim previously had been asserted in the environmental action, and were repeated 

virtually verbatim in the ejectment counterclaim. In its motion to consolidate in the 

environmental action, NIKTOB correctly noted the environmental action and the ejectment 

action “involve common questions of law and fact. Both actions involve the same parties 

(and their affiliates) and both actions involve claims relating to the parties’ respective 

property interests in the Bosley property and the rights of the parties under the lease.” (App. 

at 296.) 

NIKTOB asserts Bosley, by asking the ejectment court to construe the lease 

agreement, “opened the door for the court to consider all claims and issues arising out of the 

agreement.” (Appellees’ Br. at 20.) It notes Bosley cited to no authority “that permits a 
6

plaintiff to selectively avoid adjudication of claims originating out of an agreement in a case 

that the plaintiff filed.” (Id.) (emphasis in original). But no adjudication is being “selectively 

avoided” here. All the claims to which NIKTOB refers remain before the court in the 

environmental action.

NIKTOB’s counterclaim in the ejectment action should have been dismissed, and 

summary judgment for NIKTOB on the counterclaim issues was therefore improper. We 

accordingly reverse. 

Reversed. 

FRIEDLANDER, J., and BARNES, J., concur.