      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
                                                                               FILED
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                           Nov 01 2018, 9:28 am

      court except for the purpose of establishing                             CLERK
                                                                           Indiana Supreme Court
      the defense of res judicata, collateral                                 Court of Appeals
                                                                                and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT
      Darla S. Brown
      Sturgeon & Brown
      Bloomington, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      In Re the Paternity of J.B.;                             November 1, 2018

      J.B., by Next Friend Zachary                             Court of Appeals Case No.
                                                               18A-JP-1251
      Nathaniel Cornett,
                                                               Appeal from the Bartholomew
      Appellant-Petitioner,                                    Superior Court
              v.                                               The Honorable James D. Worton,
                                                               Judge
      Kendra Pierson,                                          Trial Court Cause No.
                                                               03D01-1803-JP-1332
      Appellee-Respondent.



      Najam, Judge.


                                       Statement of the Case
[1]   J.B. (“Child”), by Next Friend Zachary Nathanial Cornett (“Cornett”), appeals

      the trial court’s grant of Kendra Pierson’s (“Mother’s”) motion to dismiss

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-1251 | November 1, 2018             Page 1 of 8
      Child’s paternity petition. Child presents a single issue for our review, namely,

      whether the trial court erred when it dismissed his petition. We reverse and

      remand for further proceedings.


                                   Facts and Procedural History
[2]   Cornett and Mother were married and had two children together. They

      divorced in 2008. In 2010, Cornett and Mother had sexual intercourse on at

      least one occasion. And on March 16, 2011, Mother, who was not married at

      the time, gave birth to Child. Cornett was present for the delivery. But Cornett

      was not named as Child’s father on the birth certificate, and Cornett did not

      register with the putative father registry.


[3]   Nonetheless, on October 22, 2014, Cornett filed a petition to establish his

      paternity of Child. Following a hearing, the trial court found that Cornett was

      not entitled to establish his paternity of Child because Cornett had “knowingly

      failed to provide for the care and support” of Child for at least one year.1

      Appellant’s App. Vol. II at 15. Accordingly, the trial court granted Mother’s

      motion to dismiss Cornett’s paternity petition.


[4]   On March 9, 2018, Child, by Next Friend Cornett, filed a petition to establish

      paternity with the trial court. Mother moved to dismiss the petition “pursuant

      to Trial Rule[s] 8 and 12,” alleging that: the petition is barred by res judicata;



      1
        Specifically, the trial court found that Cornett was “not entitled to establish paternity under I.C. 31-14”
      because of his knowing failure to provide support for Child for at least one year. Appellant’s App. Vol. II at
      15.

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-1251 | November 1, 2018                    Page 2 of 8
      Cornett “cannot now claim ‘next friend’ status” because the trial court

      previously concluded that establishing paternity was not in Child’s best

      interests; and the petition should not be permitted as a substitute to a direct

      appeal of the trial court’s dismissal of Cornett’s petition.2 Appellant’s App. Vol.

      II at 12. Child filed a memorandum in opposition to the motion to dismiss.

      The trial court dismissed the petition without a hearing. This appeal ensued.


                                      Discussion and Decision
[5]   Child contends that the trial court erred when it dismissed his paternity petition.

      Initially, we note that Mother has not filed an appellee’s brief.


              When an appellee fails to file a brief, we apply a less stringent
              standard of review. We are under no obligation to undertake the
              burden of developing an argument for the appellee. We may,
              therefore, reverse the trial court if the appellant establishes prima
              facie error. “Prima facie” is defined as “at first sight, on first
              appearance, or on the face of it.”


      Deckard v. Deckard, 841 N.E.2d 194, 199 (Ind. Ct. App. 2006) (citations

      omitted).


[6]   As Child points out, the trial court did not state a reason for dismissing his

      petition. And Mother’s motion to dismiss states only that she moved to dismiss

      “pursuant to Trial Rule 8 and 12.” Appellant’s App. Vol. II at 11. However,




      2
        Other than a passing reference to Trial Rules 8 and 12 in the introductory paragraph, Mother’s motion to
      dismiss did not include any citations to authority.

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-1251 | November 1, 2018                 Page 3 of 8
      because the substance of Mother’s primary argument was that the petition was

      barred by res judicata, we surmise that Mother intended to move to dismiss

      under Trial Rule 12(B)(6). See, e.g., Freels v. Koches, 94 N.E.3d 339, 341 (Ind.

      Ct. App. 2018) (addressing Trial Rule 12(B)(6) motion to dismiss based on res

      judicata). And Mother attached to her motion to dismiss a copy of the trial

      court’s 2014 order dismissing Cornett’s paternity petition.


[7]   Trial Rule 12(B) provides, in pertinent part, that


               [i]f, on a motion, asserting the defense number (6), to dismiss for
               failure of the pleading to state a claim upon which relief can be
               granted, 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.


      (Emphasis added). Because the trial court did not exclude that order from the

      record, and because it is a matter outside the pleadings, Mother’s Trial Rule 12

      motion was converted to a summary judgment motion.


[8]   We review an order for summary judgment de novo, which is the same standard

      of review applied by the trial court.3 Hughley v. State, 15 N.E.3d 1000, 1003

      (Ind. 2014). The moving party must “affirmatively negate an opponent’s

      claim” by demonstrating that the designated evidence raises no genuine issue of




      3
        The standard of review on appeal of a trial court’s grant of a motion to dismiss for the failure to state a
      claim is also de novo and requires no deference to the trial court’s decision. Bellows v. Bd. of Comm’rs of Cty. of
      Elkhart, 926 N.E.2d 96, 110 (Ind. Ct. App. 2010). Thus, our standard of review is de novo regardless whether
      the motion to dismiss was converted to a summary judgment motion.

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-1251 | November 1, 2018                        Page 4 of 8
      material fact and that the moving party is entitled to judgment as a matter of

      law. Id. (internal quotation marks omitted). The burden then shifts to the

      nonmoving party to demonstrate a genuine issue of material fact. Id. The party

      appealing from a summary judgment decision has the burden of persuading this

      court that the grant or denial of summary judgment was erroneous. Knoebel v.

      Clark Cty. Sup. Ct. No. 1, 901 N.E.2d 529, 531-32 (Ind. Ct. App. 2009).


[9]   Child first contends that his paternity petition is not barred under the doctrine

      of res judicata. As we have explained:


              “The principle of res judicata is divided into two branches: claim
              preclusion and issue preclusion.

              The first of these branches, claim preclusion, applies where a
              final judgment on the merits has been rendered and acts as a
              complete bar to a subsequent action on the same issue or claim
              between those parties and their privies. When claim preclusion
              applies, all matters that were or might have been litigated are
              deemed conclusively decided by the judgment in the prior action.
              The following four requirements must be satisfied for claim
              preclusion to apply as a bar to a subsequent action: (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 could
              have been, determined in the prior action; and (4) the controversy
              adjudicated in the former action must have been between the parties to
              the present suit or their privies.

              The second branch of the principle of res judicata is issue
              preclusion, also known as collateral estoppel. Issue preclusion
              bars the subsequent litigation of a fact or issue that was
              necessarily adjudicated in a former lawsuit if the same fact or
              issue is presented in the subsequent lawsuit. If issue preclusion
      Court of Appeals of Indiana | Memorandum Decision 18A-JP-1251 | November 1, 2018   Page 5 of 8
               applies, the former adjudication is conclusive in the subsequent
               action, even if the actions are based on different claims. The
               former adjudication is conclusive only as to those issues that
               were actually litigated and determined therein. Thus, issue
               preclusion does not extend to matters that were not expressly adjudicated
               and can be inferred only by argument. In determining whether
               issue preclusion is applicable, a court must engage in a two-part
               analysis: (1) whether the party in the prior action had a full and
               fair opportunity to litigate the issue, and (2) whether it is
               otherwise unfair to apply issue preclusion given the facts of the
               particular case. The non-exhaustive factors to be considered by
               the trial court in deciding whether to apply issue preclusion
               include: (1) privity, (2) the defendant’s incentive to litigate the
               prior action, and (3) the ability of the plaintiff to have joined the
               prior action.”


       Freels, 94 N.E.3d at 342 (quoting Angelopoulos v. Angelopoulos, 2 N.E.3d 688, 696

       (Ind. Ct. App. 2013), trans. denied) (emphases added).


[10]   Here, the trial court did not rule on the merits of Cornett’s 2014 paternity

       petition. Cornett had filed the petition more than two years after Child’s birth,

       which is beyond the two-year statute of limitations under Indiana Code Section

       31-14-5-3. Had Cornett provided support for Child, his petition would have

       been permitted under Indiana Code Section 31-14-5-3(b)(2). However, the trial

       court found that Cornett had not provided support for Child, and the court

       dismissed the petition without reaching the question of paternity.


[11]   Further, Child was neither a party in the previous paternity action nor in privity

       with a party. As this court has held,




       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1251 | November 1, 2018    Page 6 of 8
               [i]n light of the interests involved and the manifest purpose of the
               statutory scheme to promote the welfare of the child . . . [in an
               action where a child may be barred from establishing its rights on
               res judicata grounds] . . . we hold [that the loss of the child’s
               rights] can only be justified where the Child was clearly named as
               a party in the prior proceeding.


       J.E. v. N.W.S., 582 N.E.2d 829, 832 (Ind. Ct. App. 1991) (some alterations

       original), trans. denied. Accordingly, Child’s paternity petition is not barred by

       claim preclusion. See id; see also Kieler v. C.A.T., 616 N.E.2d 34, 39 (Ind. Ct.

       App. 1993) (holding minor twins’ paternity petition filed by Next Friend, their

       mother, was not barred under claim preclusion because the twins were not

       parties in previous paternity petition filed by mother) trans. denied. Likewise,

       here, because the trial court did not reach the question of Cornett’s alleged

       paternity in the 2014 petition, Child’s paternity petition is not barred by issue

       preclusion. See Freels, 94 N.E.3d at 342.


[12]   Trial Rule 12(B)(6) and res judicata aside, Mother also asserted in her motion to

       dismiss that Child’s paternity petition is barred in light of the trial court’s

       finding that dismissal of Cornett’s 2014 paternity petition was in Child’s best

       interests. And Mother alleged that Cornett should not be permitted to use the

       instant proceedings as a work-around to a direct appeal from the court’s

       dismissal of Cornett’s paternity petition. But Mother’s contentions are entirely

       without merit. This court has held that a putative father may file a paternity

       petition as a child’s next friend. Mitchell v. Mitchell (In re P.L.M.), 661 N.E.2d

       898, 900 (Ind. Ct. App. 1996), trans. denied. And this court has held that a


       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1251 | November 1, 2018   Page 7 of 8
       parent whose paternity petition was denied may subsequently bring a paternity

       petition in a child’s name as the child’s next friend. See Kieler, 616 N.E.2d at

       39.


[13]   The trial court erred when it dismissed Child’s paternity petition. We reverse

       and remand for further proceedings.


[14]   Reversed and remanded.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1251 | November 1, 2018   Page 8 of 8
