Court of Appeals of Indiana | Memorandum Decision 19A-CT-2863 | August 10, 2020 Page 1 of 19

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.

ATTORNEY FOR APPELLANT

Brandon Hall

Greene & Schultz

Bloomington, Indiana

ATTORNEYS FOR APPELLEES

Rick D. Meils

Neil A. Davis

John W. Mervilde

Meils Thompson Dietz & Berish

Indianapolis, Indiana

Attorneys for Wabash Valley 

Asphalt Co., LLC

Kevin C. Schiferl

Justin M. Wiser

Maggie L. Smith

Frost Brown Todd LLC

Indianapolis, Indiana

Attorneys for River Town 

Construction, LLC

Brett T. Clayton

Reminger Co., L.P.A.

Indianapolis, Indiana

Attorney for Riddell National 

Bank

I N T H E

COURT OF APPEALS OF INDIANA
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2863 | August 10, 2020 Page 2 of 19

Curtis Elliott,

Appellant-Plaintiff,

v.

Gradex, Inc., Wabash Valley 

Asphalt Co. LLC, River Town 

Construction LLC, Riddell 

National Bank, DLZ

Corporation, Indiana 

Department of Transportation, 

and City of Brazil, Indiana,

Appellees-Defendants.

1

August 10, 2020

Court of Appeals Case No.

19A-CT-2863

Appeal from the Clay Circuit

Court

The Honorable Joseph D. Trout, 

Judge

Trial Court Cause No.

11C01-1905-CT-348

Friedlander, Senior Judge.

[1] Curtis Elliott appeals the trial court’s denial of his motion to correct error

regarding the trial court’s grant of Riddell National Bank’s motion for judgment

on the pleadings and Elliott’s request for leave to file a third amended

complaint. This matter stems from a bicycling accident that resulted in Elliott

filing a complaint against Gradex, Inc., Wabash Valley Asphalt Co., LLC,

River Town Construction, LLC, Riddell National Bank, DLZ Corporation, the

Indiana Department of Transportation, and the city of Brazil, Indiana, to

recover damages for injuries he sustained from the accident.

1 Although, under Indiana Appellate Rule 17, “[a] party of record in the trial court . . . shall be a party on 

appeal[,]” Riddell National Bank is the sole appellee participating in this appeal. See Ind. Appellate Rule 

17(A).
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[2] Elliott presents three issues for review, which we consolidate and restate as: 

1. Did the trial court err by granting Riddell National Bank’s 

motion for judgment on the pleadings and, subsequently, denying 

Elliott’s motion to correct error?

2. Did the trial court err by denying Elliott’s request to file a third 

amended complaint?

[3] We affirm.

[4] In addressing this appeal, we will take as true the facts alleged in Elliott’s

Second Amended Complaint.2 So viewed, the facts of this case are as follows. 

The Indiana Department of Transportation (“INDOT”) contracted with 

Gradex, Wabash Valley Asphalt, River Town Construction, and DLZ

Corporation (referred to collectively as “the Construction Defendants”) to pave 

U.S. Highway 40 in Brazil, Indiana. The work was completed prior to June 25, 

2017. 

[5] The driveway that served as the entrance to Riddell National Bank’s (“Riddell”) 

parking lot was adjacent to the highway. Following the completion of the 

work, there existed an uneven surface between the newly installed pavement on 

the highway and the entrance of Riddell’s driveway.

2

“In accordance with our standard of review for judgments on the pleadings, our review is confined to the 

pleadings, accepting well-pled material facts in the complaint as true.” Mourning v. Allison Transmission, Inc., 

72 N.E.3d 482, 485 (Ind. Ct. App. 2017). 
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[6] On June 25, 2017, Elliott was riding his bicycle on U.S. Highway 40. As he 

began to turn into Riddell’s driveway, he noticed that the concrete surface of 

the driveway had a “lip that jutted out much higher than the asphalt road 

abutting it.” Appellant’s App. Vol. II, p. 15 (Second Amended Complaint for 

Damages). Unable to alter his course, Elliott “made contact with the concrete 

approach, which caused his bicycle to go into an uncontrolled skid.” Id. He 

flipped over his bicycle and landed on the concrete, sustaining “serious and 

permanent injuries.” Id. at 22. 

[7] On May 7, 2019, Elliott filed a complaint against Riddell and three of the 

Construction Defendants (Gradex, Wabash Valley Asphalt, and River Town 

Construction). On June 14, Elliott filed his First Amended Complaint to add

DLZ Corporation as a defendant. On June 24, Elliott filed his Second 

Amended Complaint, adding INDOT and the city of Brazil as defendants. In 

his Second Amended Complaint, he alleged, in relevant part, that Riddell 

“knew, or should have known, of the uneven surface of the roadway at the 

entrance to its parking lot, but failed to correct or report said deficiency” and 

that the bank “was negligent in failing to warn the public of the uneven surface 

at the entrance to the parking lot.” Id. 

[8] On July 10, Riddell filed its answer to Elliott’s Second Amended Complaint

and, that same day, filed a motion for judgment on the pleadings, under 

Indiana Trial Rule 12(C), alleging that Riddell “owed no duty to [Elliott] 

regarding the allegedly dangerous condition existing outside of its premises on 

the abutting roadway, which it did not create.” Id. at 71 (Riddell’s 
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Memorandum in Support of Motion for Judgment on the Pleadings).3 Elliott

filed his response to Riddell’s motion on July 29, and a hearing was held on the 

motion on September 27.4 On October 10, the trial court granted the motion, 

concluding as follows:

Here, [Elliott] does not allege any affirmative act of Riddell 

caused the condition of the roadway at its intersection with 

Riddell’s driveway. [Elliott] therefore cannot succeed on his

complaint against Riddell under the facts he has alleged, even if 

all of them were proven true. Riddell was under no common law 

duty with respect to the condition of the road, and there are no

alleged facts in the complaint that could show an assumption of 

that duty.

Id. at 11 (Order). The order was entered as a final, appealable order.

[9] On November 5, Elliott filed a Motion to Correct Error, or in the Alternative, a 

Motion for Leave to File a Third Amended Complaint. Elliott requested that

the Court reverse its October 10, 2019, Order granting Riddell 

Bank’s Motion on the Pleadings, and issue an Order denying 

Riddell Bank’s Motion . . . . In the alternative, [Elliott] requests 

that the Court treat its Order as an Order granting dismissal 

pursuant to [Indiana Trial Rule] 12(B)(6) for failure to state a 

claim for which relief may be granted. Such an Order grants 

3 On July 12, 2019, River Town Construction filed its answer to Elliott’s Second Amended Complaint. 

INDOT filed its answer on August 14, and the city of Brazil filed its answer on August 19.

4 At the hearing on Riddell’s motion for judgment on the pleadings, INDOT “join[ed] in the opposition

along with [Elliott] to the motion for judgment on the pleadings[.]” Tr. Vol. II, p. 21.
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[Elliott] the ability to file an Amended Complaint as a matter of

right.

Id. at 122 (Motion to Correct Error, or in the Alternative, a Motion for Leave to 

File a Third Amended Complaint). The trial court denied the motion on 

November 18.5 This appeal followed.

1.

[10] Elliott argues that the trial court erred in granting Riddell’s motion for 

judgment on the pleadings. Indiana Trial Rule 12(C) provides that “[a]fter the 

pleadings are closed but within such time as not to delay the trial, any party 

may move for judgment on the pleadings.” A motion for judgment on the

pleadings pursuant to T.R. 12(C) attacks the legal sufficiency of the pleadings. 

Davis ex rel. Davis v. Ford Motor Co., 747 N.E.2d 1146 (Ind. Ct. App. 2001), trans. 

denied. The test to be applied when ruling on a T.R. 12(C) motion is whether, 

in the light most favorable to the non-moving party and with every intendment 

regarded in his favor, the complaint is sufficient to constitute any valid 

claim. Id. In applying this test, we may look only at the pleadings, with all 

well-pleaded material facts alleged in the complaint taken as admitted, 

supplemented by any facts of which the court will take judicial notice.6Id. The 

5 Riddell filed a motion in opposition to Elliott’s motion to correct error on November 19, 2019. 

6

“The ‘pleadings’ consist of a complaint and an answer, a reply to any counterclaim, an answer to a crossclaim, a third-party complaint, and an answer to a third-party complaint.” Consol. Ins. Co. v. Nat’l Water Servs.

LLC, 994 N.E.2d 1192, 1196 (Ind. Ct. App. 2013) (quoting Waldrip v. Waldrip, 976 N.E.2d 102, 110 (Ind. Ct. 

App. 2012)), trans. denied. “Pleadings” also consist of any written instruments attached to a pleading. See
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standard of review is de novo, and we will affirm the trial court’s grant of a T.R. 

12(C) motion for judgment on the pleadings when it is clear from the face of the 

pleadings that one of the parties cannot in any way succeed under the operative 

facts and allegations made therein. Davis, 747 N.E.2d 1146. 

[11] According to Elliott, the trial court’s order granting Riddell’s motion for 

judgment on the pleadings “should not stand because the finder of fact 

improperly rejected the pleadings made by [Elliott] in his [c]omplaint as 

untrue.” Appellant’s Br. p. 12. Elliott maintains that the “plain statements” in 

his Second Amended Complaint that alleged 

[Riddell] owned, controlled, maintained, and failed to warn the 

public about the hazardous defect on its property, and that that 

defect caused [his] damages, are plain statements that properly 

allege circumstances whereby [Riddell] could be held liable for 

[Elliott’s] damages. The Trial Court’s determination that the 

facts pled were deficient in alleging specific conduct on the part 

of [Riddell] in creating a hazard asks too much of a [c]omplaint 

filed prior to discovery and the acquisition of evidence. 

Id. at 13-14. Therefore, Elliott argues, “[t]he Trial Court’s [o]rder granting the 

motion for dismissal based only on the pleadings should be reversed and 

[Elliott’s] Motion to Correct Error should have been granted.” Id. at 14. 

Ind. Trial Rule 10(C) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof 

for all purposes.”).
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[12] Riddell contends that the trial court properly granted its motion for judgment 

on the pleadings. According to Riddell, Elliott’s complaint fails because 

Riddell owed no duty to Elliott regarding the condition of the approach to its 

driveway. Riddell maintains that it “had no control over the highway-driveway 

approach, and it did not create the alleged injury-producing condition.” 

Appellee’s Br. p. 13. 

[13] Elliott’s Second Amended Complaint alleges that the Construction Defendants 

were contracted to pave U.S. Highway 40; Riddell possessed and controlled the 

driveway that abutted the highway; and, after the paving was completed, there 

was an uneven surface between the newly-installed pavement and the driveway 

entrance to Riddell’s parking lot. The complaint also alleges that Elliott was 

riding along the highway; he was injured when he turned his bicycle into 

Riddell’s driveway and made contact with the uneven approach; and Riddell 

was negligent for failing to warn the public of the uneven approach. 

[14] Elliott correctly asserts that landowners owe a legal duty to entrants onto their 

property in varying degrees based upon the entrant’s status on the property as 

an invitee, a licensee, or a trespasser. Burrell v. Meads, 569 N.E.2d 637 (Ind. 

1991). For example, a landowner owes a trespasser the duty to refrain from 

willfully or wantonly (intentionally) injuring him after discovering his 

presence. Id. An Indiana landowner owes a licensee the duty to refrain from 

willfully or wantonly injuring him or acting in a manner to increase his 

peril. Id. The landowner also has a duty to warn a licensee of any latent danger 

on the premises of which the landowner has knowledge. Id. A landowner owes 
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the highest duty to an invitee, that is, a duty to exercise reasonable care for his 

protection while he is on the landowner's premises. Id. This duty to an invitee

is defined in the Restatement (Second) of Torts § 343 (1965) as follows:

A possessor of land is subject to liability for physical harm caused 

to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would 

discover the condition, and should realize that it involves 

an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the 

danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against 

the danger.

[15] In the case before us, the pleadings do not reveal Elliott’s status on Riddell’s 

property. If we assume, however, that Elliott was a public invitee onto the

property,

7

even though his accident occurred as he turned into Riddell’s 

driveway, our review of Indiana cases reveals none that support Elliott’s 

7 Restatement (Second) of Torts § 332 (1965) provides that the following persons qualify as invitees and 

defines the terms “public invitee” and “business visitor” as follows:

(1) An invitee is either a public invitee or a business visitor.

(2) A public invitee is a person who is invited to enter or remain on land as a member of the 

public for a purpose for which the land is held open to the public.

(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly 

or indirectly connected with business dealings with the possessor of the land.
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contention—that is, that Riddell’s duty to him as an invitee extends to a duty 

regarding a condition that was created by work performed on an adjacent 

highway by entities contracted by INDOT. To the contrary, Indiana law—and 

law from other jurisdictions that we find instructional—indicate the opposite 

result. 

[16] In Jump v. Bank of Versailles, 586 N.E.2d 873 (Ind. Ct. App. 1992), the plaintiff 

was injured when she fell down an icy stairwell that was located between a 

bank and the office building in which she worked. Although the stairwell was 

located entirely on the bank’s property, it was often used by the public to gain 

access to the adjacent office building. Jump sued the owner of the office 

building, arguing that the owner had a duty to keep the bank’s steps reasonably 

safe for persons using the steps to gain access to the office building. A panel of

this Court ultimately concluded that the owner of the office building had no 

duty to Jump with regard to the bank’s icy steps. Id. at 882. Specifically, we 

stated, “we will not aid even innocent plaintiffs by imposing a duty on adjacent 

landowners who have not created a dangerous condition affecting the adjoining 

property and invited their invitees to use such property.” Id.

[17] In Sizemore v. Templeton Oil Co., 724 N.E.2d 647 (Ind. Ct. App. 2000), this Court 

considered a fall by the plaintiff into a large pothole. The plaintiff was walking 

in the right-of-way of a state road, intending to enter a gas station owned by 

Templeton. The plaintiff injured his ankle when the edge of the pothole located 

in the right-of-way gave way underneath him. The pothole was located 

adjacent to the entrance to Templeton’s gas station, and the entrance to the gas 
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station was adjacent to and extended from the highway right-of-way in which 

the pothole was located. Templeton was aware of the pothole. For purposes of 

argument, we assumed the plaintiff was a business invitee of the gas station 

owner. Id. at 653, n.2. 

[18] The plaintiff sued Templeton, arguing that Templeton owed the plaintiff a duty 

of care with respect to the pothole due to Templeton’s control over the area 

where the pothole was located and because it had a policy of inspecting its 

parking lot for problems. Templeton moved for summary judgment, which the 

trial court granted in its favor. On appeal, we affirmed the trial court’s grant of 

summary judgment to Templeton, finding that “[e]ven assuming that

Templeton’s sweeping and plowing activities included the area where the

pothole was located, those activities do not demonstrate control over the

condition and repair of the pavement itself.” Id. at 652. We further found:

This evidence[, that Templeton knew about the pothole and the 

allegation that the plaintiff relied on Templeton’s policy of 

inspection,] does not demonstrate any genuine issue of fact with 

respect to whether Templeton assumed a duty toward the 

[plaintiff] with respect to the pothole. Assumption of a duty 

requires affirmative conduct or agreement to undertake some 

action on the part of the defendant. [Ember v. B.F.D., Inc., 490 

N.E.2d 764, 769 (Ind. Ct. App. 1986)]. There is no evidence of 

affirmative conduct or agreement on Templeton’s part that 

supports the [plaintiff’s] argument that Templeton assumed a 

duty with respect to the pothole. Templeton’s policy of 

inspecting its own premises does not give rise to an inference that 

it assumed a duty to inspect, repair, report or act in any way with 

regard to the state highway right-of-way in which the pothole 

was located.
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Id. We noted: 

Our holding today, and our earlier holding in Jump, is consistent 

with our conservative approach in other factual circumstances, 

wherein we have held that a landowner’s only duty to persons 

traveling on an adjacent highway is to refrain from creating or 

maintaining a hazardous condition. Moreover, public policy

considerations weigh against the extension of the duty to provide

safe ingress and egress outside of the business owner’s premises. 

It is unclear how a business owner would discharge such a duty. 

Surely they would not be required to repair conditions such as

potholes, particularly on state roads.

Id. at 654-55 (internal citations omitted) (emphasis added). 

[19] In resolving the matter before us, we find helpful the analysis provided in a case 

decided by the Missouri Court of Appeals, Levine v. Jale Corporation, 413 S.W.2d 

564 (Mo. App. 1967), trans. denied. In Levine, the court determined that the 

owner of an apartment building was not liable for injuries sustained by a 

pedestrian due to a defect in a curb that was located between the sidewalk in 

front of the apartment building and a driveway. The driveway interrupted the 

sidewalk and extended to the rear of the building. Individuals having business 

at the apartment building used the driveway for their trucks and other vehicles. 

Because of the narrowness of the driveway, trucks often drove their wheels over 

the curb and the sidewalk. There was no sidewalk across the driveway. The 

sidewalk and curb came up to the drive, and the curbing curved around the end 

of the sidewalk. The driveway was at street level, and, thus, was lower than the 

level of the sidewalk by the height of the curbing. In walking along the
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sidewalk, a pedestrian had to step down from the sidewalk and curbing on one 

side, walk across the driveway, and then step up onto the curb and sidewalk on 

the other side of the driveway. Levine was injured when he walked, at night, 

from his apartment house, along the sidewalk; stepped down to the level of the 

driveway; walked across the driveway, and in stepping up onto the curb on the 

other side of the driveway, stepped into an indentation, or hole, or a worn place 

in the curbing or sidewalk, and turned his ankle and foot. 

[20] In reaching its determination that the owner of the apartment building was not 

liable, the court noted that Levine

does not contend that defendant’s liability results from any affirmative 

act committed by defendant; rather he asserts that the use of the 

driveway by the various trucks and other vehicles . . . constituted 

a special use of the sidewalk by and for the benefit of defendant 

and that such special use caused the defects in the sidewalk and 

that the defendant negligently failed to repair such defects and 

that such negligence caused plaintiff’s injury.

Id. at 566 (emphasis added). The court found that “it is abundantly clear that 

the abutting landowner has a duty to refrain from any affirmative action 

causing a dangerously defective condition in the sidewalk.” Id. at 567. 

However, the court ultimately concluded that the trial court properly entered 

judgment in favor of the defendant because there was no evidence of any 

affirmative act on the part of the defendant that caused the defects that resulted 

in Levine’s injury. Id. at 570. 
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[21] In Heaney v. Colonial Filling Stations, 262 Mass. 338, 159 N.E. 916 (1928), the 

defendant, Colonial Filling Stations, built a gas station pursuant to an approved 

plan that was on file with the city board of public service. In the process, it dug 

up a sidewalk and put in a cement driveway. The former grade of the sidewalk 

was lowered such that there was a perpendicular drop of 51⁄2 inches in the grade 

between the driveway and the adjoining sidewalk. The plaintiff, Heaney, was 

walking along the sidewalk when she fell into the driveway because of the 

lowering of the sidewalk to the level of the driveway. Heaney sued the gas 

station and the city of Lowell, Massachusetts, alleging in relevant part that the 

gas station was negligent in making the changes that caused her injuries. The 

court determined, however, that the 51⁄2 inches drop in the grade of the 

driveway with the adjoining sidewalk did not render the abutting owner, the gas 

station, liable—specifically:

The defendant . . . was not acting unlawfully when pursuant to

the permit it made the necessary excavation, and built the

driveway. It is not contended that the plaintiff was injured by

any negligence of the defendant while the driveway was being

built, nor was there evidence that the defendant departed from

the specifications and plan of the permit[.]

Id. at 342, 159 N.E. at 917 (internal citations omitted).

[22] Likewise, here, Elliott does not allege in his Second Amended Complaint that 

Riddell created the uneven surface at the approach to its driveway or that the 

driveway was out of repair or improperly constructed. Instead, he alleges that 

after the Construction Defendants completed the work on U.S. Highway 40, 
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“there existed an uneven surface between the newly installed pavement on [the 

highway] and the entrance to [the] parking lot[;]” Riddell “took possession of 

and exhibited control over the entrance to the parking lot thereafter[;]” and 

Riddell was aware, or should have known, of the uneven surface and was 

negligent in failing to warn the public of the uneven surface. Appellant’s App. 

Vol. II, p. 15 (emphasis added). However, because Riddell, the abutting owner, 

did not create the allegedly hazardous condition at the approach to its 

driveway, Riddell did not owe a duty to Elliott with respect to the condition. 

Thus, Riddell was not negligent as a matter of law. See, e.g., Peters v. Forster, 804 

N.E.2d 736, 738 (Ind. 2004) (“Absent a duty, there can be no breach of duty 

and thus no negligence or liability based upon the breach.”)

[23] Regarding Elliott’s allegation that Riddell controlled the uneven surface at the 

approach to its driveway, we note that the law is well-settled that a 

governmental entity has a common law duty to exercise reasonable care and 

diligence to keep its streets and sidewalks in a reasonably safe condition for 

travel. Catt v. Bd. of Comm’rs of Knox Cty., 779 N.E.2d 1 (Ind. 2002); see also Ind. 

Code § 34-13-3-3(18) (declaring “[T]his subdivision [governing immunity for 

governmental entities and employees] shall not be construed to relieve a 

responsible governmental entity from the continuing duty to provide and 

maintain public highways in a reasonably safe condition.”). As our Supreme 

Court explained in Putnam County Sheriff v. Price, 954 N.E.2d 451, 455 (Ind. 

2011): “[T]his proposition is grounded in the concept of premises liability and 

presupposes ownership, maintenance, or control of the roadway.” Although 
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Elliott alleges that Riddell took possession of and exhibited control over the 

entrance to the parking lot and, therefore, the allegedly hazardous condition, 

our review of the sections of the Indiana Administrative Code that govern

transitions between highways and driveways leads us to reject Elliott’s 

allegations. Under 105 Ind. Admin. Code 7-1-2 (1989), the transition between 

a highway and a driveway is classified as an “‘Approach’ [and is defined as] a 

way or place improved for vehicular or pedestrian traffic on the highway rightof-way that joins the pavement edge of the highway with a driveway or 

pedestrian walkway.” Importantly, the control of approaches to driveways 

from highways rests with the Indiana department of highways. See 105 Ind.

Admin. Code 7-2-1 (1989) (“The Indiana department of highways shall control

access and regulate work performed on approaches to driveways on highway

right-of-way.”); see also Ind. Code § 8-23-2-9 (2009) (“After June 30, 1989, any

reference to: . . . (3) the department of highways (IC 8-9.5-4-2, repealed); . . . in

any statute or rule shall be treated as a reference to the Indiana department of

transportation, as established by this article.”).

[24] Based upon the foregoing, we find that there are no facts alleged by Elliott’s 

Second Amended Complaint under which Elliott would be entitled to relief as 

against Riddell. Thus, the trial court properly granted Riddell’s motion for 

judgment on the pleadings and properly denied Elliott’s motion to correct error

with respect to the granting of Riddell’s motion.
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2. 

[25] Next, Elliott maintains that the trial court erred in denying his request to file a 

third amended complaint. His argument, essentially, is that Riddell’s motion 

for judgment on the pleadings under T.R. 12(C) should have been treated as a 

motion to dismiss pursuant to T.R. 12(B)(6) and that the trial court’s “dismissal 

should therefore have been treated as a failure to state a claim upon which relief 

may be granted[,]” which would “giv[e] rise to the automatic right of [Elliott]”

to amend his complaint. Appellant’s Br. p. 15. We disagree. 

[26] Indiana Trial Rule 12(C) provides that “[a]fter the pleadings are closed but 

within such time as not to delay the trial, any party may move for judgment on 

the pleadings.” The sufficiency of the pleadings’ claims and defenses is tested 

by a motion for judgment on the pleadings under T.R. 12(C). KS & E Sports v.

Runnels, 72 N.E.3d 892 (Ind. 2017). In reviewing a motion under 12(C), a court 

must “base [its] ruling solely on the pleadings” and “accept as true the material 

facts alleged in the complaint.” Id. at 898 (quoting Veolia Water Indianapolis, LLC

v. Nat’l Tr. Ins. Co., 3 N.E.3d 1, 5 (Ind. 2014)). A motion for judgment on the 

pleadings is typically directed toward a determination of the substantive merits 

of the controversy. Davis, 747 N.E.2d 1146 (Ind. Ct. App. 2001) (citing 5C 

Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, § 1369 (3d 

ed. 2004)). A court should grant the motion “only when it is clear from the face 

of the pleadings that the plaintiff cannot in any way succeed under the operative 

facts and allegations made therein.” Noblesville Redevelopment Comm’n, 674 

N.E.2d 558, 562 (Ind. 1996). When a pleaded claim provides no circumstances 
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2863 | August 10, 2020 Page 18 of 19

in which relief can be granted, there is no need to put either the parties or the 

court through costly and time-consuming litigation. Bayer Corp. v. Leach, 147 

N.E.3d 313 (Ind. 2020).

[27] By contrast, T.R. 12(B) provides for certain defenses to be raised by motion, 

including “[f]ailure to state a claim upon which relief can be granted.” T.R. 

12(B)(6). “[A] Trial Rule 12(B) motion is directed solely toward procedural 

defects or the statement of the plaintiff’s claim for relief and does not seek to 

determine the substantive merits of the controversy.” Davis, 747 N.E.2d at 

1149; 5C Wright & Miller, § 1369. “The basic purpose of a T.R. 12(B)(6) 

motion to dismiss is to test the legal sufficiency of the complaint to state a 

redressable claim. Thus, the motion is properly utilized to test the legal 

sufficiency of the complaint; or, stated differently, to test the law of the claim, 

not the facts that support it.” Anderson v. Anderson, 399 N.E.2d 391, 405 (Ind. 

Ct. App. 1979) (citations omitted). Importantly, under T.R. 12(B)(6), if the 

movant is successful, the non-movant may amend its pleading once as of right 

within ten days after service of notice of the court’s order. By contrast, T.R. 

12(C) contains no provision allowing amendment. 

[28] In Gregory & Appel, Inc. v. Duck, 459 N.E.2d 46, 49 (Ind. Ct. App. 1984), we held 

that, when a 12(B)(6) defense (such as failure to state a claim upon which relief 

may be granted) is raised by a 12(C) motion for judgment on the pleadings, the 

trial court must treat the motion as a 12(B)(6) motion for failure to state a claim 

upon which relief may be granted and allow the non-moving party ten days to 

amend their complaint as a matter of right. However, we rejected the claim 
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that a T.R. 12(C) motion must necessarily be treated as a 12(B)(6) motion 

where the responsive pleading did not raise failure to state a claim upon which 

relief may be granted as a defense. Id. at 49. We did not agree that “a 12(C)

motion which does not address the sufficiency of the complaint must,

nonetheless, be treated as a 12(B)(6) motion.” Id.

[29] Here, Riddell, in its motion for judgment on the pleadings, did not challenge 

the sufficiency of Elliott’s complaint to state a claim upon which relief may be 

granted. Thus, the trial court properly treated Riddell’s motion as a T.R. 12(C) 

motion and did not err in denying Elliott’s motion to correct error in which he 

requested leave to file a third amended complaint.

[30] We find the trial court did not err when it granted Riddell’s motion for 

judgment on the pleadings and denied Elliott’s motion to correct error. The 

judgment of the trial court is affirmed. 

Bailey, J., and Pyle, J., concur.