Court of Appeals of Indiana | Memorandum Decision 45A03-1407-PL-226 | May 26, 2015 Page 1 of 15

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. 

ATTORNEYS FOR APPELLANTS

Peter J. Rusthoven 

Barnes & Thornburg LLP 

Indianapolis, Indiana 

Brian Custy 

Merrillville, Indiana 

ATTORNEYS FOR APPELLEE

F. Joseph Jaskowiak 

Lauren K. Kroeger 

Hoeppner, Wagner & Evans LLP 

Merrillville, Indiana 

Karl L. Mulvaney 

Nana Quay-Smith 

Bingham Greenebaum Doll LLP 

Indianapolis, Indiana 

IN THE 

COURT OF APPEALS OF INDIANA

Lake County Trust Co., as Trustee 

for Lake County Trust 5434, James 

L. Gagan and Eugene H. Deutsch, 

Appellants, 

v. 

United Consumers Club, INC., 

Appellee

May 26, 2015

Court of Appeals Case No. 

45A03-1407-PL-226 

Appeal from the Lake Superior 

Court 

The Honorable John M. Sedia, 

Judge 

Cause No. 45D01-1401-PL-11 

Friedlander, Judge. 
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[1] This is the second iteration of a legal dispute involving property owned by Lake 

County Trust 5434 (the Trust) and leased by United Consumers Club (United), 

with the primary difference between this one and the first lawsuit being the 

addition of James L. Gagan and Eugene H. Deutsch (the Beneficiaries), who 

are beneficiaries of the Trust, as parties to the lawsuit. In both actions, the 

plaintiff(s) sued United for recovery of unpaid rent. In the first action, an 

interlocutory appeal that we shall designate as United I, the action was brought 

by Lake County Trust Co. (the Trustee) on behalf of the Trust. On grounds 

that will be explained below, this court determined that the Trust did not have 

standing to sue United and reversed the trial court’s order denying United’s 

motion to dismiss for lack of standing. See Lake Cnty. Trust Co. v. United 

Consumers Club, Inc., 45A03-1111-PL-527 (Ind. Ct. App. Sept. 11, 2012). The 

case was dismissed after remand on March 13, 2013 pursuant to the Trust’s 

motion to dismiss. 

[2] The present lawsuit was filed in January 2014, and is essentially the same as the 

first, with the exception that the Beneficiaries were added as plaintiffs. United 

filed a Trial Rule 12(B)(6) to dismiss the January 2014 action on grounds of res 

judicata. The Beneficiaries appeal the grant of that motion, presenting a single 

issue for review: did the trial court err in holding that the ruling in United I

constituted a dismissal on the merits against the Beneficiaries, thus barring on 

res judicata grounds the present case? 

[3] We reverse. 
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[4] The underlying facts were set out in United I, as follows: 

Lake County Trust 5434 (“the Trust”) sued United Consumers 

Club (“United”) for recovery of unpaid rent. The lawsuit was 

brought by the Trustee only; the trust beneficiaries were not 

named as plaintiffs even though the trust document explicitly 

provided the Trust could not collect or receive the rents from the 

trust property. ... 

The document creating the Trust provides in part: 

It is further expressly understood and agreed that [the 

Trust] has no right or power whatsoever to manage, 

control or operate said real estate in any way or to any 

extent and is not entitled at any time to collect or receive 

for any purpose, directly or indirectly, the rents, issues, 

profits or proceeds of said real estate or any mortgage or 

any disposition thereof. 

In May of 2009, the Trust, in the name of the Trustee only and 

not the beneficiaries, sued United for recovery of unpaid rent. In 

August 2009 the Trust amended its complaint to allege United 

had not paid base rent, taxes, and operating expenses as required 

under the lease agreement. United moved to dismiss, and its 

motion was denied. In December 2009, United filed its amended 

answer and counterclaim in which it alleged, among other things, 

that the Trust was not the real party in interest or was otherwise 

“not qualified to bring these claims per the terms of the lease,” 

and “lacks standing to sue for the relief sought in the amended 

complaint.” 

The parties then filed cross-motions for summary judgment, and 

in September of 2011 the trial court granted summary judgment 

for the Trust on certain issues and for United on one issue. In its 

summary judgment order, it concluded the Trust had standing to 

bring the lawsuit. The trial court certified its order for 

interlocutory appeal, and we accepted jurisdiction. 

[5] Id., slip op. at 1 (internal citations and footnote omitted). 
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[6] On appeal, this court noted that an allegation of lack of standing is treated as a 

motion to dismiss under T.R. 12(B)(6). The main purpose of standing is to 

insure that the party before the court has a substantive right to enforce the claim 

that is being made in the litigation. See Lunsford v. Deutsche Bank Trust Co. 

Americas as Tr., 996 N.E.2d 815 (Ind. Ct. App. 2013). We further noted that “a 

court has no jurisdiction over a particular case unless a party with standing is 

participating in the case.” Lake Cnty. Trust Co. v. United Consumers Club, Inc., 

45A03-1111-PL-527, slip op. at 1. Based upon the following rationale, we 

concluded that the Trust did not have standing to sue United for unpaid rent 

and therefore that its lawsuit should have been dismissed: 

The trust document is explicit that the Trust “is not entitled at 

any time to collect or receive for any purpose, directly or 

indirectly, the rents, issues, profits or proceeds of said real 

estate,” ... and we agree with United that “[u]sing the words that 

the Trust had ‘no power to collect rents,’ also left the Trustee 

with no power to bring a lawsuit to collect rent.” 

[7] Id. (internal footnote and citations omitted). 

[8] This brings us to the present case. As indicated above, this lawsuit is essentially 

the same as the first, with the exception of the addition of the Beneficiaries as 

plaintiffs. United contends that the dismissal of United I constituted a decision 

on the merits against the Beneficiaries of the dispute over nonpayment of rent 

and therefore is res judicata with respect to the present case. The trial court 

agreed, citing Indiana Trial Rule 41(B), “which provides that any dismissal 

other than a dismissal for lack of jurisdiction, operates as an adjudication on the 
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merits [.]” Appellant’s Appendix at 6. The Beneficiaries challenge that 

determination. 

[9] We begin by briefly addressing the trial court’s citation to T.R. 41(B) in support 

of its ruling. The relevant portion of that provision states, “Unless the court in 

its order for dismissal otherwise specifies, a dismissal under this subdivision or 

subdivision (E) of this rule and any dismissal not provided for in this rule, other 

than a dismissal for lack of jurisdiction, operates as an adjudication upon the 

merits.” T.R. 41(B). Clearly, the premise of the trial court’s ruling is that the 

dismissal of the case in United I was something “other than a dismissal for lack 

of jurisdiction.” Although the dismissal was based technically upon T.R. 

12(B)(6), the specific reasoning for dismissal was that the Trust lacked standing 

to sue United for unpaid rent. As this court stated in United I, “a court has no 

jurisdiction over a particular case unless a party with standing is participating in 

the case.” Lake Cnty. Trust Co. v. United Consumers Club, Inc., 45A03-1111-PL527, slip op. at 1 (citing In re Custody of G.J., 796 N.E.2d 756 (Ind. Ct. App. 

2003), trans. denied). In short, the lawsuit in United I was dismissed for lack of 

standing, which had jurisdictional implications. For this reason, on the facts of 

this case, the exception in the quoted portion of T.R. 41(B) applies and thus, as 

to all parties except the Trust, it did not constitute an adjudication on the merits 

within the meaning of T.R. 41(B). 

[10] A T.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief 

can be granted tests the legal sufficiency of a claim, not the facts supporting it. 

Godby v. Whitehead, 837 N.E.2d 146 (Ind. Ct. App. 2005), trans. denied. 
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Accordingly, we view the complaint in the light most favorable to the nonmoving party and draw every reasonable inference in that party’s favor. Id. We 

will affirm a grant of such a motion to dismiss if it is apparent that the facts 

alleged in the complaint are incapable of supporting relief under any set of 

circumstances. Id. “In determining whether any facts will support the claim, 

we look only to the complaint and may not resort to any other evidence in the 

record.” Id. at 149. Finally, we apply a de novo standard of review in appeals 

from the grant of a motion to dismiss under T.R. 12(B)(6). Godby v. Whitehead, 

837 N.E.2d 146. 

[11] Both parties agree that this case turns on the question of whether res judicata 

properly applies. More specifically, the issue is whether, with respect to the 

Beneficiaries, the former judgment satisfies the element of res judicata that it 

was “rendered on the merits.”1

 The parties’ competing positions on that 

question are as follows: quoting Schultz v. State, 731 N.E.2d 1041, 1043 (Ind. Ct. 

 

1 Res judicata is appropriate only where the following four elements are present: 

1. the former judgment must have been rendered by a court of 

competent jurisdiction; 

2. the former judgment must have been rendered on the merits; 

3. the matter now in issue was or might have been determined in the 

former suit; and 

4. the controversy adjudicated in the former suit must have been 

between the parties to the present action or their privies. 

Indiana State Ethics Comm’n v. Sanchez, 18 N.E.3d 988, 993 (Ind. 2014) (quoting Chemco 

Transp., Inc. v. Conn., 527 N.E.2d 179, 181 (Ind. 1988)). 
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App. 2000), trans. denied, United argues “[a] decision that a party lacks standing 

pursuant to Trial Rule 12(B)(6) operates as an adjudication on the merits.” 

This quote from Schultz cites Lake Cnty. Council v. State Bd. of Tax Comm’rs, 706 

N.E.2d 270, 280 (Ind. T.C. 1999) adhered to on reconsideration sub nom.

Montgomery v. State Bd. of Tax Comm’rs, 708 N.E.2d 936 (Ind. T.C. 1999), rev’d, 

730 N.E.2d 680 (Ind. 2000), as its source authority. Lake County Council, 

however, adds an important qualifier that the panel in Schultz chose not to 

include, i.e., “[a] decision that a party lacks standing pursuant to Trial Rule 

12(B)(6) operates as an adjudication on the merits ... as to the party seeking to 

invoke the court’s jurisdiction.” Lake Cnty. Council v. State Bd. of Tax Comm’rs, 706 

N.E.2d at 280 (emphasis supplied). In light of the full quote from Lake Cnty. 

Council v. State Bd. of Tax Comm’rs, the granting of United’s motion in the 

present case clearly acted as an adjudication on the merits against the Trust. 

The question is, was this ruling also binding upon the Beneficiaries? 

[12] “Not all judgments of dismissal on the grounds stated in Ind. Rules of 

Procedure, Trial Rule 12(B) constitute an adjudication on the merits so as to bar 

presentation of the same issues in a subsequent action.” Ragnar Benson, Inc. v. 

Wm. P. Jungclaus Co., 352 N.E.2d 817, 820 (Ind. Ct. App. 1976). In this case, 

United I was dismissed upon the determination that the Trust lacked standing to 

bring the lawsuit. The Beneficiaries contend this was tantamount to a dismissal 

on grounds that the Trust was not the real party in interest. This, in turn, 

would justify application of the rule that “dismissal for want of a real party in 

interest is not on the merits and would not bar any action which the real party 
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in interest might decide to bring at a later time.” State v. Rankin, 260 Ind. 228, 

233, 294 N.E.2d 604, 607 (1973). 

[13] The concepts of standing and real party in interest often are understandably 

considered one and the same. Hammes v. Brumley, 659 N.E.2d 1021 (Ind. 1995). 

Our Supreme Court has indicated, however, that they are not. “Although they 

are quite similar, they are indeed different concepts.” Id. at 1029. Standing 

refers to the question of whether a party has an actual demonstrable injury for 

purposes of a lawsuit. Barnette v. U.S. Architects, LLP, 15 N.E.3d 1 (Ind. Ct. 

App. 2014). “To establish standing, the plaintiff must ‘demonstrate a personal 

stake in the outcome of the lawsuit and must show that he or she has sustained 

or was in immediate danger of sustaining, some direct injury as a result of the 

conduct at issue.’” Vectren Energy Mktg. & Serv., Inc. v. Exec. Risk Specialty Ins. 

Co., 875 N.E.2d 774, 777 (Ind. Ct. App. 2007) (quoting Shourek v. Stirling, 621 

N.E.2d 1107, 1109 (Ind. 1993)). On the other hand, our Supreme Court has 

explained that a real party in interest “is the person who is the true owner of the 

right sought to be enforced.” Hammes v. Brumley, 659 N.E.2d at 1030. Put 

another way, the real party in interest is the one who is “entitled to the fruits of 

the action.” Id. 

[14] In the present case, the Trust manages the property for the benefit of the 

Beneficiaries, and normally would therefore be authorized to file a lawsuit for 

recovery of unpaid rent pertaining to the trust property. Thus, the Trust would 

usually have standing to file this lawsuit. See Ind. Code Ann. § 30-4-3-3(a)(11) 

(West, Westlaw current with legislation of the 2015 First Regular Session of the 
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119th General Assembly effective through April 23, 2015) (“a trustee has the 

power to ... prosecute or defend actions, claims, or proceedings for the 

protection of ... trust property”). We determined in United I, however, that 

because of a provision in the lease governing this particular property, the Trust 

lacks standing. Whether the Trust did or did not have standing, the 

Beneficiaries were the real party in interest, as they were entitled to the fruits of 

the action, viz., the unpaid rent.2

 See Hammes v. Brumley, 659 N.E.2d 1021. 

[15] Both sides of this dispute seem to acknowledge that the Beneficiaries could have 

been substituted for the Trust as the real parties in interest in the lawsuit that 

was ultimately dismissed pursuant to our holding in United I. United contends 

that the failure to do that was a strategic decision on the part of the Trust and 

the Beneficiaries that was calculated “to avoid United’s counterclaims against 

the beneficiaries individually.” Appellee’s Brief at 23. United further contends 

the Beneficiaries “participated in the prior litigation”, Appellee’s Brief at 17, and 

actively resisted joining in that lawsuit. Indeed, this court indicated in United I

that there was “strenuous[]” resistance to the joinder of the Beneficiaries in that 

lawsuit. Lake Cnty. Trust Co. v. United Consumers Club, Inc., 45A03-1111-PL-527, 

slip op. at 2. United claims that in choosing not to substitute the Beneficiaries 

as the real party in interest in the first lawsuit, the Trust and the Beneficiaries 

 

2

 Indeed, were it not for the lease provision divesting the Trust of standing, the “real party in interest” 

requirement would not represent an impediment to the Trust prosecuting this action. See Trial Rule 17 (A)(1) 

(addressing the real party in interest) (“(the) trustee of an express trust ... may sue in his own name without 

joining with him the party for whose benefit the action is brought, but stating his relationship and the 

capacity in which he sues”). 
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were manipulating the process, and further that the present lawsuit represents a 

subversion of the Trial Rules, and specifically a “circumvention” of the 

Appellants’ failure to comply with T.R. 17. 

[16] United’s T.R. 17 argument presumes that T.R. 17 required the Appellants to 

substitute the Beneficiaries for the Trust in United I after the Trust was 

determined to lack standing. We can find no authority for this proposition. 

T.R. 17(A) does provide that a real party in interest has “a reasonable time” 

after an objection has been lodged against the original party to ratify the action 

or be joined or substituted in the action. The rule further provides that when 

such does occur, the ratification, joinder, or substitution “shall have the same 

effect as if the action had been commenced initially in the name of the real 

party in interest.” T.R. 17(A). We can find no language, however, that may be 

interpreted as mandating that ratification, substitution, or joinder of the real 

party in interest must occur after a court has determined that the party bringing 

the action lacks standing or is determined not to be the real party in interest. 

[17] Still, we do not necessarily disagree with United’s contention that “a real party 

in interest which manipulates the named plaintiff for strategic reasons does so at 

its own peril.” Appellee’s Brief at 22 (citing Metal Forming Techs., Inc v. Marsh & 

McLennan Co., 224 F.R.D. 431 (S.D. Ind. 2004)). The question is whether that 

situation is present in this case. In addition to Metal Forming Techs., United cites 

Posley v. Clarian Health, 2012 WL 3886328 (S.D. Ind. Sept. 6, 2012) in support 

of its contention that T.R. 17 should be construed so as to require joinder, 

ratification, or substitution of the real party in interest in the original action 
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where the original plaintiff has been determined not to be the real party in 

interest. In those two cases, the question was whether the case should be 

dismissed on the defendant’s motion. 

[18] In Posley, an individual filed a lawsuit against a health-care entity. Subsequent 

to that, the individual filed for Chapter 7 bankruptcy protection. The healthcare provider filed a motion to dismiss the complaint on grounds that the 

bankruptcy trustee, not the individual, was the real party in interest. The 

individual argued that ratification was the proper course of action. The court 

ultimately agreed that ratification was appropriate after applying the “honest 

mistake test” to determine whether the real party in interest had engaged in a 

“sleight of hand” by filing the complaint in the name of a different party. Posley 

v. Clarian Health, 21012 WL 3886328, slip op. at 3. The “honest mistake test” 

requires a party wishing to substitute another party to establish that “when he 

brought this action in his own name, he did so as the result of an honest and 

understandable mistake.” Id. at 2 (citing Feist v. Consol. Freightways Corp., 100 F. 

Supp.2d 273, 276 (E.D. Pa. 1999), aff’d, 216 F.3d 1075 (3d Cir. 2000), cert. 

denied, 532 U.S. 920 (2001)). The Posley court determined that the original 

named plaintiff, at the time she filed the lawsuit in her own name, exercised her 

only legal choice at the time, and therefore permitted ratification. 

[19] In Metal Forming Techs., Inc. v. Marsh & McLennan Co., the plaintiffs leased a 

premises that was subsequently damaged by a fire. The landlord’s primary 

insurer paid property damages to the landlord pursuant to an insurance policy. 

The primary insurer brought a subrogation action against the plaintiffs to 
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recover expenses it paid to the landlord as a result of the fire. Prior to the fire, 

the plaintiffs had purchased two separate liability insurance policies from two 

separate companies. One of those insurers denied coverage after the fire, and 

the other, Travelers Insurance, informed the plaintiffs that their coverage was 

limited to $100,000, one-tenth of what the plaintiffs believed they had 

purchased, and significantly less than the primary insurer’s subrogation claim. 

The plaintiffs and the primary insurer reached a settlement agreement 

concerning the primary insurer’s subrogation claims. In that agreement, the 

plaintiffs agreed to have judgment for $1,500,000 entered against them in favor 

of the primary insurer. The primary insurer would receive the $100,000 

proceeds from the Travelers policy, and the primary insurer further agreed that 

it would not take any steps or pursue any action to collect or execute that 

judgment against the plaintiffs. The plaintiffs agreed to assign to the primary 

insurer all of its claims against Marsh & McLennan Company, through which 

the plaintiffs had purchased their two insurance policies. Finally, as part of the 

agreement, the plaintiffs agreed to permit the primary insurer to sue Marsh in 

the plaintiffs’ names and to assist in the prosecution of the assigned claims 

against Marsh. 

[20] The plaintiffs then sued Marsh alleging that Marsh had failed to procure 

adequate insurance coverage for them. Marsh filed a motion for summary 

judgment contending that the plaintiffs were not the real parties in interest 

because they had assigned their claims to the primary insurer. The court 

concluded that the plaintiffs were not the real parties in interest and that the 
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primary insurer filed this action “in disguise, using Plaintiffs’ names while 

knowing that Plaintiffs no longer owned the claims that were brought.” Metal 

Forming Techs., Inc. v. Marsh & McLennan Co., 224 F.R.D. at 432. Moreover, the 

court concluded that the primary insurer’s decision to sue in the plaintiffs’ 

names “was a strategic and tactical decision in contravention of Rule 17(a).”3

 

Id. at 437. Ultimately, the court denied a motion to substitute under Rule 17(a) 

because the plaintiffs and the primary insurer had failed to demonstrate that 

there was “an honest or understandable mistake or difficulty in naming the 

proper party.” Id.

[21] The outcomes in Posley and Metal Forming Techs., Inc. both turned at least in part 

on the issue of whether the failure to identify the real party in interest in the 

complaint was motivated by tactical considerations, or instead was a product of 

honest mistake or difficulty in naming the proper party. Assuming for the sake 

of argument that those holdings apply in the present case, United has not 

presented a compelling argument that the action in United I was prosecuted in 

the name of the Trustee on behalf of the Trust rather than the Beneficiaries as a 

strategic or tactical matter, or was anything other than an honest or 

understandable mistake. Having said that, we note United’s claim that the first 

lawsuit was brought in the name of the Trust in order to “avoid United’s 

 

3

 The court opined that the primary insurers’ “decision to sue in Plaintiff’s names was made “to make the 

Plaintiffs more sympathetic to a jury,” and to “make this suit about a company ravaged by fire and not about 

an insurance company that paid for the fire’s damage.” Metal Forming Techs., Inc v. Marsh & McLennan Co., 

224 F.R.D. at 437.
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counterclaims against the beneficiaries individually.” Appellee’s Brief at 23. 

United does not further illuminate the nature of these counterclaims or the 

manner in which they could have been avoided by substituting the Trust for the 

Beneficiaries as named plaintiff. We simply are not convinced that the Trust or 

the Beneficiaries would fail the “honest mistake test” discussed in Posley and

Metal Forming Techs., Inc.

[22] In any event, neither Posley nor Metal Forming Techs., Inc. suggests that where a 

court has determined that the plaintiff was not a real party in interest, the real 

party in interest must be substituted in that action or suffer an adverse decision 

on the merits. Neither can we find any language in T.R. 17 that mandates such 

a result. Simply put, T.R. 17 indicates that substitution, ratification, or joinder 

are permissible, but gives no indication that they are mandatory steps that must 

be taken in the event it is determined that the party originally filing the action is 

not the real party in interest. We are reluctant to engraft such a requirement, 

especially in light of our Supreme Court’s statement in Lake Cnty. Council v. State 

Bd. of Tax Comm’rs, 706 N.E.2d at 280 that a “decision that a party lacks 

standing pursuant to Trial Rule 12(B)(6) operates as an adjudication on the 

merits ... as to the party seeking to invoke the court’s jurisdiction.” Dicta or 

not, it bespeaks the Supreme Court’s view that dismissal of a plaintiff’s action 

on grounds of lack of standing operates only against that party, and does not 

implicate the interests of an unnamed real party in interest, especially where the 

failure to name the real party in interest in the complaint was not motivated by 

procedural or tactical skullduggery. 
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[23] In summary, the dismissal of United I on grounds that the Trust was not the real 

party in interest because of a provision in the lease governing United’s tenancy 

constituted a judgment on the merits only against the Trust. It did not operate 

as a judgment on the merits against the real parties in interest, i.e., the 

Beneficiaries. Moreover, although T.R. 17 authorized substitution of the 

Beneficiaries when it was determined that they, not the Trust, were the real 

parties in interest, it did not mandate that action. Neither the authority nor the 

equitable arguments presented by United convince us otherwise. Because the 

Beneficiaries are real parties in interest in the dispute with United involving 

alleged unpaid rent, and because that dispute has not yet been resolved against 

them on the merits, the trial court erred in dismissing on res judicata grounds 

the Beneficiaries’ action for recovery of unpaid rent. 

[24] Judgment reversed. 

Kirsch, J., and Crone, J., concur.