MEMORANDUM DECISION
                                                                Mar 12 2015, 10:05 am
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                                   ATTORNEY FOR APPELLEES
MacArthur Drake                                          Voyle A. Glover
Gary, Indiana                                            Merrillville, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Shelley Bradford,                                        March 12, 2015

Appellant-Plaintiff,                                     Court of Appeals Cause No.
                                                         45A03-1404-MF-147
        v.                                               Appeal from the Lake Superior
                                                         Court.

Mike Lazo and Angela Lazo,                               The Honorable William E. Davis,
                                                         Judge.
Appellees-Defendants.
                                                         Cause No. 45D05-1106-MF-187




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision | 45A03-1404-MF-147 | March 12, 2015   Page 1 of 13
                                   STATEMENT OF THE CASE
[1]   Appellant-Third-Party Plaintiff, Shelly Bradford (Bradford), appeals the trial

      court’s grant of Appellees-Third-Party Defendants’, Mike & Angela Lazo

      (collectively, Lazo), motion to dismiss pursuant to Indiana Trial Rule 12(B)(6).


[2]   We affirm.


                                                   ISSUES

[3]   Bradford raises three issues on appeal, which we consolidate and restate as the

      following two issues:


          (1) Whether the trial court’s judicial notice of prior proceedings converted

              Lazo’s motion to dismiss into a motion for summary judgment; and

          (2) Whether the trial court properly dismissed Bradford’s complaint based

              on res judicata grounds.


                           FACTS AND PROCEDURAL HISTORY

[4]   Bradford owned and lived in one unit of a four-unit condominium complex in

      Hobart, Indiana. Lazo is the owner of two units in the same complex and

      resides in one. Bradford and Lazo are also the co-owners of a garage unit and a

      plot of vacant real estate, adjacent to the condominium complex.


[5]   On June 3, 2008, Bradford filed a complaint against Lazo, claiming that Lazo

      prevented her access to her condominium’s electrical panel, furnace, and water

      heater, which are located in Lazo’s condominium, and to the jointly-owned

      Court of Appeals of Indiana | Memorandum Decision | 45A03-1404-MF-147 | March 12, 2015   Page 2 of 13
      garage (First Complaint). On May 19, 2010, the trial court dismissed this cause

      with prejudice for failure to prosecute pursuant to Indiana Trial Rule 41(E).


[6]   On June 6, 2011, a mortgage foreclosure action was filed against Bradford

      under the current cause number. Bradford named Lazo as the third-party

      defendants, filing a third-party complaint on January 30, 2012, which alleged:

               3. For the past five years, and continuing to date, [Lazo] ha[s],
               individually and/or in concert with each other, intentionally,
               deliberately and maliciously conducted themselves and acted to
               commit, against [Bradford], trespass, conversion, harassment, false
               imprisonment, obstruction of access to property, defamation, abuse of
               process, tortious interference with contractual relations and
               interference with the quiet enjoyment of [Bradford’s] real and personal
               property located at Golf View, in addition to [Lazo’s] filing of
               frivolous claims in [c]ourt against [Bradford].
               4. [Lazo] block[s] Bradford’s access and use of common areas of Golf
               View.
               ***
               7. [Lazo] block[s] Bradford’s access and use of the garage she co-owns
               with them.
      (Appellant’s App. pp. 25-26).


[7]   On February 13, 2012, Lazo filed a first motion to dismiss based on res judicata.

      Following a hearing, the trial court denied the motion but allowed Lazo “to

      refile same anytime before July 16, 2012.”1 (Appellant’s App. p. 21). On July




      1
        Bradford argues that “[n]othing in Trial Rule 12(B), (G) or (H)(2) contemplates or permits a defendant to
      file successive motions to dismiss.” (Appellant’s Br. p. 18). We disagree. “A court has inherent power to
      control its own orders.” Metro. Dev. Comm’n of Marion Cnty. v. Newlon, 297 N.E.2d 483, 484 (Ind. Ct. App.
      1973). As such, a “trial court has the inherent power to reconsider any previous ruling so long as the action
      remains in fieri.” Johnson v. Estate of Brazili, 917 N.E.2d 1235, 1242 n.5 (Ind. Ct. App. 2009).

      Court of Appeals of Indiana | Memorandum Decision | 45A03-1404-MF-147 | March 12, 2015            Page 3 of 13
      17, 2012, Lazo filed his second motion to dismiss “pursuant to Indiana Trial

      Rule 12(B),[2] 41(C) and 41(D).” (Appellant’s App. p. 47). On December 2,

      2013, the trial court conducted a hearing on Lazo’s second motion to dismiss,

      which was granted ten days later. In its Order, the trial court stated:

              The [c]ourt takes judicial notice of the [First Complaint’s]
              chronological case summary and all pleadings, order, and motions
              filed [in the First Complaint]. The [c]ourt then took the matter under
              advisement.
              The [c]ourt now GRANTS the [m]otion to [d]ismiss. [Bradford]
              argues that 41E Dismissal only applies to the acts of trespass alleged
              therein and not to subsequent acts that occurred after the [First
              Complaint] was filed and before this cross-claim was filed. However,
              the case of Ilagan v. McAbee, 634 N.E.2d 827, 829 (Ind. Ct. App. 1994)
              holds a dismissal with prejudice constitutes a dismissal on the merits
              and a dismissal with prejudice is res judicata as to any questions that
              might have been litigated. Therefore the [m]otion to [d]ismiss herein
              is granted due to the dismissal on the merits entered in the [First
              Complaint].
      (Appellant’s App. p. 18). On February 10, 2014, Bradford filed a motion to

      correct error which, after a hearing, was summarily denied by the trial court.


[8]   Bradford now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION




      2
        Although Lazo failed to specify in his motion to dismiss which prong of Indiana Trial Rule 12(B) he wished
      to proceed under, he clarified that his motion was based on Ind. T.R. 12(B)(6) during the hearing.

      Court of Appeals of Indiana | Memorandum Decision | 45A03-1404-MF-147 | March 12, 2015          Page 4 of 13
                                               I. Judicial Notice

[9]    During the hearing on Lazo’s motion to dismiss, the trial court granted his

       request to judicially notice the pleadings and proceedings in the First

       Complaint. Bradford contends that instead of merely considering the

       allegations in her complaint, the trial court improperly reflected on facts and

       information outside the pleadings in its determination of Lazo’s motion to

       dismiss.


[10]   Indiana Trial Rule 12(B) provides that a motion to dismiss under Rule 12(B)(6)

       “shall” be treated as a motion for summary judgment when “matters outside

       the pleading are presented to and not excluded by the trial court.” Where a trial

       court treats a motion to dismiss as one for summary judgment, the trial court

       must grant the parties a reasonable opportunity to present Trial Rule 56

       materials. Ind. Trial Rule 12(B). “The trial court’s failure to give explicit

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

       judgment is reversible error only if a reasonable opportunity to respond is not

       afforded a party and the party is thereby prejudiced.” Azhar v. Town of Fishers,

       744 N.E.2d 947, 950 (Ind. Ct. App. 2001).


[11]   To determine whether a trial court’s failure to give express notice deprives a

       nonmovant of a reasonable opportunity to respond with Indiana Trial Rule 56

       materials, we must consider: (1)“whether the movant’s reliance on evidence

       outside the pleadings should have been so readily apparent that there is no

       question that the conversion is mandated by T.R. 12(B);” (2)“whether there was

       ample time after the filing of the motion for the nonmovant to move to exclude
       Court of Appeals of Indiana | Memorandum Decision | 45A03-1404-MF-147 | March 12, 2015   Page 5 of 13
       the evidence relied upon by the movant in support of its motion or to submit

       T.R. 56 materials in response thereto;” and (3)“whether the nonmovant

       presented substantiated argument setting forth how he would have submitted

       specific controverted material factual issues to the trial court if he had been

       given the opportunity.” Id. at 951-52.


[12]   Here, although the trial court referred to the hearing on Lazo’s motion as a

       hearing on a motion to dismiss, and indicated in its order that it was granting

       Lazo’s motion to dismiss, a review of the record reveals that the trial court did

       not deprive Bradford of a reasonable opportunity to respond with T.R. 56

       materials or that Bradford was prejudiced.


[13]   First, Lazo’s reliance on the evidence outside the pleadings in this case was

       obvious. In his motion to dismiss Bradford’s complaint, Lazo clearly references

       the First Complaint by cause number—alleging “damages resulting from an

       alleged denial of access to a shared common areas in Golf View

       Apartments,”—as well as the trial court’s order to dismiss the First Complaint

       with prejudice. (Appellant’s App. p. 47).3 Given the mandatory wording of

       T.R.12(B), Bradford should have known that the trial court was compelled to

       convert the motion into a summary judgment motion. See Duran v. Komyatte,

       490 N.E.2d 388, 391 (Ind. Ct. App. 1986) (noting that the operation of T.R.




       3
        Even though the motion to dismiss indicates that the First Complaint and the order to dismiss are attached
       as “Exhibits,” it appears from Bradford’s reply to Lazo’s motion that the Exhibits were not appended to the
       motion as filed before the trial court. Nevertheless, Lazo submitted these Exhibits to this court in a separate
       appendix.

       Court of Appeals of Indiana | Memorandum Decision | 45A03-1404-MF-147 | March 12, 2015              Page 6 of 13
       12(B)(6) is “well known” and a “clear mandate” of which counsel should be

       cognizant), reh’g denied, trans. denied.


[14]   Second, after Lazo filed his motion, Bradford had ample time before the

       hearing to either move to exclude the evidence relied upon by Lazo or to submit

       T.R. 56 materials in opposition thereto. In fact, in her response to Lazo’s

       motion, Bradford unequivocally asserted that she “does not waive, agree or

       acquiesce to matters outside her complaint being considered on [Lazo’s]

       Motion to Dismiss. She objects to having [Lazo’s] dismissal motion[] treated as

       a summary judgment or partial summary judgment motion.” (Appellant’s App.

       p. 51). Despite this unambiguous statement, during the hearing on the motion,

       Bradford abandoned her position, responding, “We don’t have a specific

       objection to the judicial notice concept, Judge, but the [c]ourt has to know what

       to take judicial notice of with regard to the [First Complaint].” (Transcript p.

       27).


[15]   Third, Bradford failed to indicate what specific additional material she would

       have presented if express notice had been given. Rather, instead of taking

       advantage of the opportunity to identify additional materials, during the

       proceedings Bradford argued the distinctions between the First Complaint and

       the current cause, and noted that “the [c]ourt, having taken judicial notice, will

       be able to see in the [First Complaint.]” (Tr. p. 31).


[16]   Although the trial court wrongly designated its judgment as a judgment

       granting a motion to dismiss, the trial court did provide the parties with a


       Court of Appeals of Indiana | Memorandum Decision | 45A03-1404-MF-147 | March 12, 2015   Page 7 of 13
       reasonable opportunity to present materials pertinent to a summary judgment

       motion, making the designation harmless. See Dixon v. Siwy, 661 N.E.2d 600,

       604 (Ind. Ct. App. 1996). We will, therefore, review this case as arising from a

       grant of summary judgment.


                                           II. Summary Judgment


                                            A. Standard of Review


[17]   Summary judgment is appropriate only when there are no genuine issues of

       material fact and the moving party is entitled to a judgment as a matter of law.

       Ind. Trial Rule 56(C). “A fact is material if its resolution would affect the

       outcome of the case, and an issue is genuine if a trier of fact is required to

       resolve the parties’ differing accounts of the truth . . . , or if the undisputed facts

       support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756,

       761 (Ind. 2009).


[18]   In reviewing a trial court’s ruling on summary judgment, this court stands in the

       shoes of the trial court, applying the same standards in deciding whether to

       affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

       891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we

       must determine whether there is a genuine issue of material fact and whether

       the trial court has correctly applied the law. Id. at 607-08. In doing so, we

       consider all of the designated evidence in the light most favorable to the non-

       moving party. Id. at 608. The party appealing the grant of summary judgment

       has the burden of persuading this court that the trial court’s ruling was

       Court of Appeals of Indiana | Memorandum Decision | 45A03-1404-MF-147 | March 12, 2015   Page 8 of 13
       improper. Id. When the defendant is the moving party, the defendant must

       show that the undisputed facts negate at least one element of the plaintiff’s

       cause of action or that the defendant has a factually unchallenged affirmative

       defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary

       judgment must be reversed if the record discloses an incorrect application of the

       law to the facts. Id.


                                                   B. Analysis


[19]   In its order, the trial court ruled that Bradford’s cause was barred by res judicata.

       Bradford now contends that the doctrine is not applicable to the case at bar

       because the current cause is based on new evidence and, therefore, the trial

       court erred in dismissing her complaint.


[20]   The doctrine of res judicata bars the litigation of a claim after a final judgment

       has been rendered in a prior action involving the same claim between the same

       parties or their privies. MicroVote Gen. Corp. v. Ind. Election Comm’n, 924 N.E.2d

       184, 191 (Ind. Ct. App. 2010). The principle behind this doctrine, as well as the

       doctrine of collateral estoppel, is the prevention of repetitive litigation of the

       same dispute. Id. The following four requirements must be satisfied for a claim

       to be precluded under the doctrine of res judicata: 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




       Court of Appeals of Indiana | Memorandum Decision | 45A03-1404-MF-147 | March 12, 2015   Page 9 of 13
       adjudicated in the former action must have been between the parties to the

       present suit or their privies. Id.


[21]   Bradford does not dispute, and Lazo agrees, that the court deciding the First

       Complaint was vested with the authority to render an order in that cause.

       Likewise, the parties in the action have remained the same. Accordingly, the

       only elements at issue are the judgment in the First Complaint and the

       boundaries of the claim litigated in the previous action.


                                          1. Judgment on the Merits


[22]   We have previously held that “a dismissal with prejudice constitutes a dismissal

       on the merits.” Richter v. Asbestos Insulating & Roofing, 790 N.E.2d 1000, 1002

       (Ind. Ct. App. 2003), trans. denied. Thus, a dismissal with prejudice is

       conclusive of the rights of the parties and is res judicata as to any questions that

       might have been litigated. Id. at 1002-03. As such, the dismissal with prejudice

       of the First Complaint represents a dismissal on all the merits.


                                      2. Determined in the Prior Action


[23]   It is well established that as to res judicata, a party is not allowed to split a claim

       or cause of action, pursuing it in a piecemeal fashion and subjecting the

       defendant to needless multiple suits. Ind. State Highway Comm’n v. Speidel, 392

       N.E.2d 1172, 1175 (Ind. Ct. App. 1979). However, two or more separate

       causes of action may arise from the same tortious act, and in such case a

       judgment on one action does not bar suit on the second. Id. In this light, the


       Court of Appeals of Indiana | Memorandum Decision | 45A03-1404-MF-147 | March 12, 2015   Page 10 of 13
       most critical question for the application of res judicata is whether the present

       claim was within the issues of the first or whether the claim presents an attempt

       to split a cause of action or defense. Biggs v. Marsh, 446 N.E.2d 977, 982 (Ind.

       Ct. App. 1983). It has generally been said that the test for making this

       determination is whether identical evidence will support the issues involved in

       both actions. Id.


[24]   In the First Complaint, filed on June 3, 2008, Bradford asserted that Lazo

       prevented her from accessing “an easement to the electrical panel, furnace, and

       water heater in the hallway of” Lazo’s condominium as well as challenged her

       access to the jointly-owned garage. (Appellees’ App. p. 1). In her current

       complaint, Bradford contends

               3. For the past five years, and continuing to date, [Lazo] ha[s],
               individually and/or in concert with each other, intentionally,
               deliberately and maliciously conducted themselves and acted to
               commit, against [Bradford], trespass, conversion, harassment, false
               imprisonment, obstruction of access to property, defamation, abuse of
               process, tortious interference with contractual relations and
               interference with the quiet enjoyment of [Bradford’s] real and personal
               property located at Golf View, in addition to [Lazo’s] filing of
               frivolous claims in [c]ourt against [Bradford].
               4. [Lazo] block[s] Bradford’s access and use of common areas of Golf
               View.
               ***
               7. [Lazo] block[s] Bradford’s access and use of the garage she co-owns
               with them.
       (Appellant’s App. pp. 25-26). Despite the seemingly addition of several new

       causes of action in the current complaint, all claims find their genesis in the


       Court of Appeals of Indiana | Memorandum Decision | 45A03-1404-MF-147 | March 12, 2015   Page 11 of 13
       same act, i.e., Lazo’s attitude towards Bradford gaining entrance into

       commonly held areas. See Ind. State Highway Comm’n, 392 N.E.2d at 1175.


[25]   Nevertheless, in a reference to Biggs, Bradford insists that different evidence

       supports each complaint. Namely, she claims that the First Complaint “could

       have only pertained to acts which [Lazo] had already performed before the

       filing of the [June 3, 2008] [First Complaint],” whereas the current cause

       alludes to acts committed in 2011. (Appellant’s Br. p. 15). Regardless,

       Bradford’s own complaint contradicts her argument. In its introductory

       paragraph, the complaint unambiguously references acts “[f]or the past five

       years and continuing to date[.]” (Appellant’s App. p. 25). As the complaint

       was filed on January 30, 2012, it encompasses acts reaching back to January 30,

       2007—prior to the filing of the First Complaint. Therefore, implicit in this

       opening paragraph is Bradford’s acknowledgment that the current case is

       intrinsically woven into the operative facts of the First Complaint.


[26]   Moreover, in Hilliard v. Jacobs, 957 N.E.2d 1043 (Ind. Ct. App. 2011), reh’g

       denied, trans. denied, cert. denied 133 S.Ct. 577 (2012), we discussed the identical

       evidence test proponed by Biggs. Rejecting a literal interpretation of the test “as

       it would invite piecemeal litigation with a vengeance,” we advocated for the

       application of a practical interpretation of the identical evidence test. Id. at

       1047 (quoting Atkins v. Hancock Co. Sheriff’s Merit Bd., 910 F.2d 403, 405 (7th Cir.

       1990)). Here, Bradford’s claims all sought the same ultimate relief and there is

       no claim in the second case that could not have been adjudicated in the first

       case. Allowing Bradford’s claims to continue would be allowing her the

       Court of Appeals of Indiana | Memorandum Decision | 45A03-1404-MF-147 | March 12, 2015   Page 12 of 13
       possibility of seemingly endless litigation about Lazo’s conduct over a specific

       time period—as long as she withheld some piece of evidence or some legal

       theory, she could attempt to litigate her claims again until she received a ruling

       in her favor. This would completely eviscerate the doctrine of res judicata.


[27]   Consequently, in light of the evidence before us, we agree with the trial court

       that Bradford’s cause is barred by res judicata and thus affirm the summary

       judgment in favor of Lazo.


                                               CONCLUSION

[28]   Based on the foregoing, we conclude that the trial court’s order to dismiss is

       more properly characterized as a summary judgment because of its

       consideration of matters outside the pleadings. Furthermore, we conclude that

       the trial court properly determined that Bradford’s action was barred on res

       judicata principles.


[29]   Affirmed.


[30]   Vaidik, C. J. and Baker, J. concur




       Court of Appeals of Indiana | Memorandum Decision | 45A03-1404-MF-147 | March 12, 2015   Page 13 of 13
