Court of Appeals of Indiana | Memorandum Decision 18A-PL-1526 | February 19, 2019 Page 1 of 10

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 APPELLANT

Jason R. Delk

Daniel J. Gibson

Delk McNally LLP

Muncie, Indiana

ATTORNEYS FOR APPELLEE HORIZON 

BANK, N.A.

Elizabeth Flynn

Craig V. Braje

Braje, Nelson & Janes, LLP

Michigan City, Indiana 

ATTORNEYS FOR APPELLEE CHICAGO 

TITLE INSURANCE COMPANY

Tammy L. Ortman

Jennifer S. Ortman

Lewis & Kappes, P.C.

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Thomas J. Moss,

Appellant-Plaintiff,

v.

Horizon Bank, N.A., and 

Chicago Title Insurance 

Company,

February 19, 2019

Court of Appeals Case No.

18A-PL-1526

Appeal from the LaPorte Superior 

Court

The Hon. Richard R. Stalbrink, 

Jr., Judge

Trial Court Cause No. 

46D02-1710-PL-1843
Court of Appeals of Indiana | Memorandum Decision 18A-PL-1526 | February 19, 2019 Page 2 of 10

Appellees-Defendants.

Bradford, Judge.

Case Summary

[1] Thomas Moss is a beneficiary of two land trusts, one of which, Trust 08-1292, 

sold land to the other, Trust 08-3923, in 2005. Trust 08-1292, and Moss 

individually as a beneficiary of it, were to be paid over time and were each

granted a mortgage by Trust 08-3923. In 2012, Moss became aware that the

mortgages had apparently never been recorded, potentially leaving him and 

Trust 08-1292 as unsecured creditors to Trust 08-3923. In July of 2012, Trust 

08-3923 filed for bankruptcy and indeed attempted to avoid the mortgages. 

[2] In 2013, Moss sued Chicago Title Insurance Company and Horizon Bank, 

N.A. (collectively, “the Defendants”), in LaPorte Superior Court for, inter alia, 

their alleged failure to ensure that the mortgages were recorded (“the 2013 

Lawsuit”). In 2015, the parties stipulated that the lawsuit be dismissed with 

prejudice, with Moss reserving only the right to pursue claims against the 

Defendants in Trust 08-3923’s bankruptcy proceeding. In 2017, when Moss 

sued the Defendants again in LaPorte Superior Court (“the 2017 Lawsuit”), 

Chicago Title moved to dismiss on res judicata grounds, which motion the trial 

court granted. Moss contends that the trial court improperly failed to convert 

Chicago Title’s motion to dismiss to a summary-judgment motion and erred in 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-1526 | February 19, 2019 Page 3 of 10

concluding that the dismissal of the 2013 Lawsuit was res judicata as to the 

2017 Lawsuit. Because we disagree with both contentions, we affirm. 

Facts and Procedural History

[3] In 1980, Moss and a number of other investors, using a land trust designated 

Trust 08-1292, purchased a parcel of land in LaPorte County that became 

known as “Dune Top.” Through a merger, Horizon became trustee of Trust 

08-1292. In 2005, three beneficiaries of Trust 08-1292 requested a sale of Dune 

Top. Beachwalk LP, the founder and developer of the Beachwalk development 

and of which Moss was the general partner, agreed to purchase Dune Top, with 

title to be held by another land trust, Trust 08-3923, of which Horizon also 

eventually became trustee. Beachwalk agreed to pay $1,500,000 for Dune Top, 

paying $90,000 for each of six investor shares (a total of $540,000) while paying 

the balance over time and executing a promissory note and mortgage (“the 

Trust Mortgage”) in favor of Trust 08-1292. Because Beachwalk did not have 

enough ready cash to cover the $540,000 payment, it was agreed that it would 

pay the $270,000 owed to Moss over time pursuant to a promissory note 

secured by a mortgage executed in favor of Moss (“the Moss Mortgage”). 

Closing on the sale of Dune Top from Trust 08-1292 to Trust 08-3923 occurred 

on or about July 28, 2005, at Ticor Title Insurance Company, Chicago Title’s 

predecessor-in-interest. 

[4] In April of 2012, while Moss was attempting to assemble documents related to 

Beachwalk’s then-dire financial condition, he discovered that the Trust and

Moss Mortgages (collectively, “the Mortgages”) had not been recorded in 2005. 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-1526 | February 19, 2019 Page 4 of 10

On July 18, 2012, Beachwalk filed for Chapter 11 bankruptcy and initiated an 

adversary proceeding to avoid the unrecorded Mortgages. 

[5] Moss filed the 2013 Lawsuit on November 1, 2013, in LaPorte Superior Court

1. Specifically, Moss alleged breach of contract by Ticor for failure to properly 

record the Mortgages and secure title insurance, professional negligence by 

Ticor, breach of Horizon’s fiduciary duty to ensure that the Mortgages were

properly recorded, and improper disbursement of the assets of Trust 08-3923 by 

Horizon. On February 19, 2014, the trial court granted Chicago Title’s motion 

to dismiss with prejudice. Moss filed a motion to reconsider, and that motion, 

along with other pending motions, were set for hearing on December 18, 2014. 

[6] On the date of the hearing, all parties agreed to dismiss the 2013 Lawsuit with 

prejudice. The parties filed a stipulation for dismissal on January 5, 2015, and 

an order for dismissal with prejudice (“the Order”) was entered that day:

IT IS THEREFORE ORDERED, ADJUDGED AND 

DECREED, that all remaining claims between and among 

Thomas J. Moss, Horizon Bank, N.A., a/k/a Horizon Bancorp, 

individually and as Trustee of Trust Number 08-1292 and Chicago 

Title Insurance Company, as successor by merger to Ticor Title

Insurance company, are hereby dismissed with prejudice excepting 

only [Moss]’s opportunity to file claims in the pending bankruptcy 

case of Debtor, Moss Family Limited Partnership, et al[.], Case 

No. 12-32540-hcd. 

Appellant’s App. Vol. II pp. 48–49. Meanwhile, on January 2, 2015, Moss had 

filed claims in bankruptcy court against the Defendants (“the Bankruptcy 

Lawsuit”). Horizon Bank moved to dismiss the Bankruptcy Lawsuit, which 

motion was granted on June 16, 2016. Moss did not appeal this dismissal. 
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[7] On October 31, 2017, Moss filed a new complaint against the Defendants (“the 

2017 Lawsuit”) in LaPorte Superior Court 2, alleging that Horizon breached 

the terms of Trust 08-3923 and committed constructive Fraud by transferring 

the trust’s assets to Moss without authorization. Moss also alleged that Ticor

breached its contractual obligations by failing to issue a title insurance policy 

and record the Mortgages and committed constructive fraud by falsely 

representing that it had secured title insurance. At the same time, Moss moved 

for relief from the Order in LaPorte Superior Court 1. 

[8] On January 21, 2018, Horizon moved to dismiss the 2017 Lawsuit pursuant to

Indiana Trial Rule 12(B)(8), arguing that the same case was pending in another 

court, namely LaPorte Superior Court 1. On February 14, 2018, Chicago Title 

moved to dismiss the 2017 Lawsuit pursuant to Trial Rule 12(B)(6), arguing res 

judicata. Chicago Title’s motion was accompanied by four exhibits, including 

the Order. On May 31, 2018, the trial court denied Horizon’s motion to 

dismiss, granted Chicago Title’s, and ultimately granted dismissal, with 

prejudice, as to both Defendants. 

Discussion and Decision

[9] Moss contends that the trial court erred in (1) considering extraneous material

attached to Chicago Title’s motion to dismiss without converting it to a 

summary-judgment motion and in (2) concluding that Moss’s claims in the 

2017 Lawsuit are barred by res judicata. 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-1526 | February 19, 2019 Page 6 of 10

I. Conversion to Summary-Judgment Motion

[10] Chicago Title made, and the trial court granted, a motion pursuant to Trial 

Rule 12(B)(6), which allows for dismissal for “[f]ailure to state a claim upon 

which relief can be granted[.]” If, while making a 12(B)(6) motion, 

matters outside the pleading are presented to and not excluded by 

the court, the motion shall be treated as one for summary 

judgment and disposed of as provided in Rule 56. In such case, all 

parties shall be given reasonable opportunity to present all material 

made pertinent to such a motion by Rule 56.

Ind. Trial Rule 12(B). Moss contends that the trial court erroneously failed to 

convert Chicago Title’s motion to dismiss into a summary-judgment motion 

and also failed to give him a reasonable opportunity to present material in 

opposition. It is true that we have held that a trial court’s failure to provide 

explicit notice of its intended conversion of a motion to dismiss to one for 

summary judgment is reversible error if a reasonable opportunity to respond is 

not afforded and the party is prejudiced. Lanni v. Nat’l Collegiate Athletic Ass’n,

989 N.E.2d 791, 795 (Ind. Ct. App. 2013). 

[11] In this case, however, Chicago Title argues—and we agree—that the trial court 

was not required to convert its motion to dismiss into a summary-judgment 

motion. In Indiana, materials of which a trial court may take judicial notice 

(such as the court records from the 2013 Lawsuit) are not considered “matters 

outside the pleading.” In Davis ex relatione Davis v. Ford Motor Co., 747 N.E.2d 

1146 (Ind. Ct. App. 2001), trans. denied, we stated that when evaluating a 

12(B)(6) motion to dismiss, “the court may look only at the pleadings, with all 

well-pleaded material facts alleged in the complaint taken as admitted, 
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supplemented by any facts of which the court will take judicial notice.” Id. at 1149 

(emphasis added) (citing Anderson v. Anderson, 399 N.E.2d 391, 406 (Ind. Ct. 

App. 1979)).1 We conclude that because the extraneous matters on which the 

trial court relied were matters of which it could take judicial notice,2it was not 

required to convert Chicago Title’s action to a summary-judgment motion. 

II. Res Judicata

[12] Defendants contend that the 2017 Lawsuit is barred by res judicata, specifically

by the dismissal of the 2013 Lawsuit with prejudice. It is well-settled that a 

dismissal with prejudice is a dismissal on the merits and is conclusive of the 

 

1

 The Anderson court relied on George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 

551 (2nd Cir. 1977). Frey Ready-Mixed Concrete, however, does not even mention judicial notice, much less 

explicitly state that consideration of judicially-noticed facts is proper in a motion-to-dismiss context. 

Wherever the Anderson court found their support, our research has revealed a wealth of authority—in the 

federal courts, at least—for the proposition, dating at least as far back as 1944, in another case where a 

motion to dismiss which included judicially-noticeable material was premised upon res judicata. The District 

Court for the Western District of Missouri set the scene in this way: “This venerable controversy haunts us 

like a ghost which cannot be laid. Once our colleague put an end to it. Twice we buried it. Twice the Court 

of Appeals not only refused to resurrect it, but almost spat on the grave. Here it comes again!” Kithcart v. 

Metro. Life Ins. Co., 62 F. Supp. 93, 93 (W.D. Mo. 1944). The court dismissed Kithcart’s action on the basis 

that “the amended petition shows on its face, when supplemented by facts of which judicial knowledge is taken, that 

the controversy presented is res adjudicata.” Id. at 94 (emphasis added); see also, e.g., Henson v. CSC Credit 

Servs., 29 F.3d 280, 284 (7th Cir. 1994) (“[W]e recently held that ‘[t]he district court may also take judicial 

notice of matters of public record’ without converting a 12(b)(6) motion into a motion for summary 

judgment.”) (citation omitted); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986) (“On a 

motion to dismiss, we may take judicial notice of matters of public record outside the pleadings.”) (citations 

omitted); Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196–97 (3rd Cir. 1993) (“To 

decide a motion to dismiss, courts generally consider only the allegations contained in the complaint [...] and 

matters of public record.”); Allen v. Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991) (“In determining 

the adequacy of a claim under Rule 12(b)(6), consideration is limited to the facts stated on the face of the 

complaint [...] and to matters of which judicial notice may be taken.”) (citation omitted). 

2

 Pursuant to Indiana Rule of Evidence 201(b)(5), “[a] court may judicially notice [....] records of a court of 

this state[,]” which includes the “Order for Dismissal with Prejudice” issued by LaPorte Superior Court 1 on 

January 5, 2015. While the record does not seem to contain any explicit statement that the trial court took 

judicial notice of the exhibits attached to Chicago Title’s 12(B)(6) motion, it seems clear that this essentially 

occurred. In any event, Moss does not claim that the attachments should not have been and/or were not 

judicially noticed, only that they qualify as extraneous. 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-1526 | February 19, 2019 Page 8 of 10

rights of the parties and res judicata as to the questions which might have been 

litigated. Fox v. Nichter Const. Co., 978 N.E.2d 1171, 1180 (Ind. Ct. App. 2012), 

trans. denied. 

[13] Moss does not deny that the claims in the 2017 Lawsuit are essentially the same 

as he pursued in 2013, arguing only that the dismissal of the 2013 Lawsuit does 

not bar the 2017 Lawsuit because the Order reserved him the right to pursue 

claims against the Defendants in bankruptcy court. As mentioned, the Order 

applied to all claims between the parties subject to it “excepting only [Moss]’s 

opportunity to file claims in the pending bankruptcy case of Debtor, Moss 

Family Limited Partnership, et al[.], Case No. 12-32540-hcd.” Appellant’s App. 

Vol. II p. 49. 

When interpreting an agreed entry, we will recognize that such 

agreements are contractual in nature and binding on the parties. 

Singh v. Singh, 844 N.E.2d 516, 524 (Ind. Ct. App. 

2006)(interpreting the effect of an agreed entry in the context of a 

dissolution of marriage settlement agreement); Battershell v. 

Prestwick Sales, Inc., 585 N.E.2d 1, 4 (Ind. Ct. App. 1992), trans. 

denied. The interpretation or legal effect of a contract is a question 

of law to be determined by the court. Battershell, 585 N.E.2d. at 4–

5. [T]he interpretation of a contract is controlled by the intent of 

the parties as expressed by the clear language of the contract. 

[Delgado v. Boyles, 922 N.E.2d 1267, 1270 (Ind. Ct. App. 2010), 

trans. denied.] Clear, plain, and unambiguous contract terms are 

conclusive of the parties’ intent, and a court will not construe the 

contract or consider extrinsic evidence, but will merely apply the 

contractual provisions as they are written. [Fid. Nat. Title Ins. Co. 

v. Mussman, 930 N.E.2d 1160, 1165 (Ind. Ct. App. 2010), trans. 

denied].
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City of Jeffersonville v. Envtl. Mgmt. Corp., 954 N.E.2d 1000, 1011–12 (Ind. Ct. 

App. 2011). 

[14] We find it difficult to imagine that the reservation of rights in the Order could 

be any more clear that Moss’s right to pursue claims against the Defendants is 

limited to one specific case in bankruptcy court. The Order explicitly provides 

that the reservation “only” applies to a particular bankruptcy case, language 

that, in our view, definitively forecloses future litigation on these claims in other 

forums or cases. Moss, no doubt recognizing that the reservation of rights is 

limited by its plain terms to bankruptcy Case No. 12-32540-hcd, urges us to 

infer that the reservation also covered possible future litigation in state court in 

the event the claims were not fully adjudicated in bankruptcy court.3 This 

interpretation of the reservation language is untenable, however, as it would 

require us to ignore the parties’ and LaPorte Superior Court 1’s use of language 

limiting Moss’s right to pursue claims to one case in bankruptcy court. If the 

parties had intended to reserve Moss’s right to further pursue his claims in state 

court under any circumstances, language to that effect could easily have been 

used. Because such language was not used, the trial court correctly concluded

 

3

 Moss relies on the Alaska case of DeNardo v. Calista Corp., 111 P.3d 326 (Alaska 2005), in which a 

stipulation included language that it did “not affect plaintiff’s claims against Calista Corporation and Alaska 

Newspapers, Inc. in ... A00–309 Civ ...., currently pending in the U.S. District Court for the District of 

Alaska.” Id. at 332. The DeNardo court concluded that the stipulation language did not bar future 

proceedings in state court, as it referred to the claims pending in federal court being reserved, not the forum in 

which they were litigated. Id. at 333–34. Here, however, the reservation of rights preserved only Moss’s

right to bring whatever claims he might have in a particular case in a particular forum, not any particular 

claims. 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-1526 | February 19, 2019 Page 10 of 10

that the Order is res judicata as to the 2017 Lawsuit. The trial court did not err 

in dismissing Moss’s 2017 Lawsuit. 

[15] The judgment of the trial court is affirmed. 

Najam, J., and Altice, J., concur.