                                                                       Jul 30 2013, 7:37 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.


ATTORNEYS FOR APPELLANT:                            ATTORNEY FOR APPELLEE:

FRANK D. OTTE                                       BRETT E. OSBORNE
JENNIFER F. PERRY                                   The Osborne Law Firm
Clark, Quinn, Moses, Scott & Grahn LLP              Indianapolis, Indiana
Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

MARGARET SMITH,                                     )
                                                    )
       Appellant-Respondent,                        )
                                                    )
               vs.                                  )     No. 49A05-1211-CT-552
                                                    )
KRISTOPHER SCHALER,                                 )
                                                    )
       Appellee-Petitioner.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable John F. Hanley, Judge
                            Cause No. 49D11-1203-CT-12653


                                          July 30, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                             STATEMENT OF THE CASE

       Margaret Smith (“Smith”) appeals the denial of her motion to dismiss Kristopher

Schaler’s (“Schaler”) complaint pursuant to Indiana Trial Rule 12(B)(6).

       We affirm.

                                          ISSUE

            Whether the trial court erred in denying Smith’s motion to dismiss.

                        FACTS AND PROCEDURAL HISTORY

       On March 28, 2012, Schaler filed a complaint naming Smith, Dustin Smith

(“Dustin”), and Michael Tucker (“Tucker”) as defendants. The complaint included two

counts, with Count I stating the following:

       1.     That on or about March 29, 2010, [Schaler] was a passenger in a
              blue Chevrolet Corvette automobile, being operated by [Dustin]
              and/or [Tucker] traveling on W. Sumner Avenue at or near the Bluff
              Road Intersection in Indianapolis, Marion County, Indiana;

       2.     That at said time and place, said Defendant(s) carelessly and
              negligently operated the motor vehicle off of the roadway and into,
              inter alia, a tree;

       3.     After said accident, Defendant, [Smith], came to the scene of the
              aforementioned accident, in an attempt to, inter alia, alter or hide
              evidence regarding said accident, in which her son Defendant,
              [Dustin] was involved, thereby causing further damage and injury to
              [Schaler];

       4.     That at the time of the accident, Defendant(s) was/were intoxicated;

       5.     That as a direct and proximate result of Defendant’s [sic] careless
              and negligent acts and/or omissions, [Schaler] has suffered severe
              physical injuries, in that said Plaintiff has suffered mental anguish,
              physical pain, and impairment and in all reasonable probability will

                                              2
                suffer physical pain, mental anguish, and impairment in the future.
                Additionally, [Schaler] has incurred medical bills in the future.
                Furthermore, [Schaler] has suffered a loss of earnings as a result of
                the accident, and in all reasonable probability, he will continue to
                suffer a loss of earning capacity in the future. By reason of the
                foregoing, [Schaler] has been damaged in an amount to be
                determined herein . . . .

(App. 39-40).

       Count II repeats some of the wording of the previous count, and also states in

pertinent part:

       7.       That Defendant(s) [Dustin] and/or [Tucker], willfully and wantonly
                drove and with great force and violence, while intoxicated, causing
                Plaintiff to be severely injured, and each of the defendants, including
                [Smith], willfully and wantonly altered, hid and/or covered up
                evidence regarding said accident . . . .

(App. 40-41).

       Smith answered by filing a motion to dismiss for failure to state a claim under

Indiana Trial Rule 12(B)(6). In pertinent part, the motion states that “the entirety of

Plaintiff’s Complaint, fails to state a claim upon which relief may be granted against

[Smith] because Indiana does not recognize a third-party cause of action on the facts

alleged.” (App. 10). In her “Brief in Support of Defendant’s Motion to Dismiss,” Smith

alleges that Schaler’s claim can only be read as a spoliation of evidence claim and that

Indiana does not recognize either a first- or third-party spoliation of evidence claim under

the facts of the complaint. The motion also states that the trial court “should dismiss

[Schaler’s] spoliation of evidence claim against [Smith] for failure to state a claim

recognized under Indiana law.” (App. 17).

                                               3
        A hearing was held on the Smith’s motion to dismiss,1 and the trial court

subsequently denied the motion in an August 30, 2012 order. Because the trial court’s

order was not a final appealable order, Smith filed a motion to certify the order and to

stay the proceedings pending appeal.             Schaler filed an objection to Smith’s motion

explaining that the complaint was not claiming spoliation of evidence but instead referred

to “further damage and injury” such as “delay in treatment, refusal to call emergency

personnel, refusal to notify police, and the like.” (App. 23). The objection also claims

that Smith’s actions “directly and proximately exacerbated [Schaler’s] accident-related

injuries, and the degree of said exacerbation is the amount of damages for which she was

responsible.” (App. 23). On October 4, 2012, the trial court issued its “Order Certifying

Interlocutory Order for Appeal and Staying Further Proceedings Pending Appeal.” (App.

25). On December 6, 2012, this Court accepted jurisdiction of this appeal pursuant to

Indiana Appellate Rule 14(B).

                                 DISCUSSION AND DECISION

    Smith contends that the trial court erred in denying her motion to dismiss because the

complaint does not state facts giving notice of any recognizable cause of action against

her.2 A motion to dismiss for failure to state a claim tests the legal sufficiency of the

complaint, not the facts supporting it. Allen v. Clarian Health Partners, Inc., 980 N.E.2d


1
 On appeal, Smith did not request a transcript of the motion to dismiss hearing or a reconstruction thereof
pursuant to Indiana Appellate Rule 31.
2
  This contention encompasses Smith’s references to the viability of first- and third-party spoliation
claims.
                                                    4
306, 308 (Ind. 2012). Thus, the motion tests whether the allegations in the complaint

establish any set of circumstances under which a plaintiff would be entitled to relief. Id.

In ruling on a motion to dismiss for failure to state a claim, the trial court is required to

view the complaint in the light most favorable to the non-moving party with every

inference in its favor. Id. Our review of a trial court’s denial of a motion to dismiss

pursuant to Trial Rule 12(B)(6) is de novo. Id. Viewing the complaint in the light most

favorable to the non-moving party, we must determine whether the complaint states any

facts on which the trial court could have granted relief. Id. “[W]hile we do not test the

sufficiency of the facts alleged with regard to their adequacy to provide recovery, we do

test their sufficiency with regard to whether or not they have stated some factual scenario

in which a legally actionable injury has occurred.” Lei Shi v. Cecilia Yi, 921 N.E.2d 31,

37 (Ind. Ct. App. 2010).

       Here, the complaint alleges that Smith arrived on the scene after the collision and,

among other things, attempted to alter or hide evidence. Her actions allegedly caused

“further damage and injury to [Schaler].” (App. 39). Given our standard of review, we

cannot say that Schaler fails to allege facts from which additional injuries occurred due to

Smith’s allegedly intentional or negligent acts. Furthermore, these acts do not pertain

solely to a spoliation claim. Smith is on notice that her alleged post-collision actions

allegedly caused further damages and injuries, and the details of Smith’s actions and

Schaler’s injuries will be developed during discovery. Accordingly, the trial court did

not err in denying Smith’s motion to dismiss.

                                             5
      Affirmed.

KIRSCH, J., concur.

VAIDIK, J., dissent with separate opinion.




                                             6
                                                                         Jul 30 2013, 7:37 am


_______________________________________________________


                              IN THE
                    COURT OF APPEALS OF INDIANA

MARGARET SMITH,                                   )
                                                  )
       Appellant,                                 )
                                                  )
              vs.                                 )    No. 49A05-1211-CT-552
                                                  )
KRISTOPHER SCHALER,                               )
                                                  )
       Appellee.                                  )
                                                  )


VAIDIK, Judge, dissenting.

       I respectfully disagree with my colleagues that Schaler has pled sufficient facts in

his complaint to allege more than an impermissible spoliation-of-evidence claim against

Smith. Since spoilation of evidence is not a viable cause of action, Glotzbach v. Froman,

854 N.E.2d 337, 339 (Ind. 2006); Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 350

(Ind. 2005), I would reverse the trial court’s denial of Smith’s motion to dismiss.

       Notice pleading is all that is required in Indiana, and the plaintiff does not have to

set forth all of the essential facts and every theory of the case. However, the plaintiff is

“required to provide a clean and concise statement that will put the defendant[] on notice

as to what has taken place and the theory that the plaintiff plans to pursue.” McQueen v.

                                             7
Fayette Cnty. Sch. Corp., 711 N.E.2d 62, 65 (Ind. Ct. App. 1999) (internal quotation and

citation omitted).

       The only facts contained in the pleading that referred to Smith’s actions, however,

were: “After said accident, Defendant, [Smith], came to the scene of the aforementioned

accident, in an attempt to, inter alia, alter or hide evidence regarding said accident, in

which her son Defendant, [Dustin] was involved, thereby causing further damage and

injury to [Schaler]; . . . .” Slip op. at 2. The majority finds this sufficient to put Smith on

notice that all of her alleged post-collision actions caused further damage and injuries to

Schaler. While notice pleading is only required to give reasonable notice of the claim, I

do not believe that the words “inter alia” are enough to satisfy this requirement.

       To have sufficiently pled a claim, the defendant must be

       sufficiently notified concerning the claim . . . so as to be able to prepare to
       meet it. A complaint’s allegations are sufficient if they put a reasonable
       person on notice as to why a plaintiff sues. Notice pleading merely requires
       pleading the operative facts so as to place the defendant on notice as to the
       evidence to be presented at trial.

Buschman v. ADS Corp., 782 N.E.2d 423, 430 (Ind. Ct. App. 2003) (internal citations

omitted). “Inter alia” does not provide Smith with enough information so that she could

prepare a defense to any claim that she caused injury to Schaler through actions other

than altering or hiding evidence.

       Put differently, Schaler has only pled a spoliation-of-evidence claim in his

complaint and has not given sufficient notice of any other claim. Since spoliation of

evidence is not a recognized cause of action in Indiana, I would find that the trial court

                                              8
erred in denying Smith’s motion to dismiss. I therefore respectfully disagree with my

colleagues.




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