                                                               FILED
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                 Jul 03 2012, 8:58 am
the defense of res judicata, collateral
estoppel, or the law of the case.                                   CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




APPELLANT PRO SE:                               ATTORNEYS FOR APPELLEE:

AARON ISBY                                      GREGORY F. ZOELLER
Carlisle, Indiana                               Attorney General of Indiana

                                                ELIZABETH ROGERS
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

AARON ISBY,                                     )
                                                )
       Appellant-Plaintiff,                     )
                                                )
               vs.                              )      No. 49A05-1110-MI-592
                                                )
LEE HOEFLING, DAVID GILSTRAP,                   )
JAMES BASINGER, ROGER RANDALL, Jr.,             )
KEVIN EWERS, EDWIN BUSS,                        )
and DAVID SLOAN                                 )
                                                )
       Appellees-Defendants.                    )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable John F. Hanley, Judge
                            Cause No. 49D11-1105-MI-18467


                                       July 3, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
        Appellant-Plaintiff Aaron Isby appeals from the dismissal of his lawsuit against

Appellees-Defendants Lee Hoefling, David Gilstrap, James Basinger, Roger Randall, Jr.,

Kevin Ewers, Edwin Buss, and David Sloan1 (collectively, “the Appellees”). Isby argues

that the trial court erroneously concluded that he had failed to state a claim on which

relief could be granted. We affirm.

                          FACTS AND PROCEDURAL HISTORY

        Isby is currently incarcerated at the Wabash Valley Correction Facility in Carlisle.

Isby’s television was allegedly confiscated on January 9, 2010, and allegedly damaged by

prison officials. On January 25, 2010, Isby and Gilstrap executed a written “Settlement

and Release Agreement” (“the Agreement”) that provides as follows:

        The undersigned hereby promises that in exchange for a used television set
        to be provided to him by the Wabash Valley Correctional Facility (WVCF),
        he agrees to dismiss any claims pending or contemplated, with regard to
        any lost/damaged television set up to and including the date of the
        execution of this Agreement. In executing this Agreement, the undersigned
        releases the State of Indiana and the Indiana Department of Correction and
        it’s [sic] agents and employees from any liability for any lost/damaged
        television set for which the undersigned would otherwise be entitled to seek
        reimbursement.
        The undersigned acknowledges receipt of a used television set AS IS from
        the Wabash Valley Correctional Facility by the execution of this
        Agreement.

Appellant’s App. p. 97.

        Soon after receiving the television, Isby complained in writing to prison staff that

it was a “lemon” and not “in mint condition[.]” Isby v. Gilstrap, Cause No. 49A05-1009-


        1
           Neither Isby nor the Appellees list Sloan as a party on appeal. However, Sloan was named in
Isby’s suit as a defendant and was still a party when Isby’s complaint was dismissed. Pursuant to Indiana
Appellate Rule 17, a party of record below is a party on appeal.


                                                   2
CT-660 slip op. at 1 (Ind. Ct. App. July 19, 2011). On July 1, 2010, Isby filed an “Action

for Declaratory Judgment” in Marion Superior Court against Gilstrap, Buss, Ewers,

Basinger, Randall, and Sloan. Id. Isby alleged in the 2010 lawsuit that the defendants

had entered into the agreement with the intent to defraud him because they had never

intended to give him a “workable mint” replacement television, as he alleged the

Agreement required them to do. Id. On September 7, 2010, the first trial court dismissed

Isby’s suit on the basis that it failed to state a claim upon which relief could be granted.

Id. at 2.   On July 19, 2011, this court affirmed the dismissal in an unpublished

memorandum decision. Id. at 4.

       Meanwhile, on May 11, 2011, Isby filed a “Civil Action for Equitable Remedies

and Damages” against Appellees. In his second suit, Isby claimed that some Appellees

had breached the Agreement, the Agreement was unconscionable, the Agreement was

invalid because Gilstrap had not been authorized to sign it, and some Appellees had been

negligent in damaging his television. Moreover, in addition to the six persons named in

the first lawsuit, Isby added Hoefling to the second suit as a defendant, contending only

that Hoefling “Breached the Contract/Agreement by illegally delegating his Duties to a

low ranking prison guard who gave plaintiff a defective Television Not in Conformity

with what was promised under the Contract/Agreement[.]” Appellant’s App. p. 89. On

August 1, 2011, the Appellees filed a motion to dismiss on the ground that Isby’s

complaint was barred by res judicata. On October 6, 2011, the trial court dismissed

Isby’s second suit in full, concluding that it was barred by res judicata.

                            DISCUSSION AND DECISION

                                              3
    Whether the Trial Court Erred in Granting the Appellees’ Motion to Dismiss

       Isby contends that the doctrine of res judicata does not operate to bar his claims

and that the trial court erred in granting the Appellees’ motion to dismiss.

              A motion to dismiss for failure to state a claim tests the legal
       sufficiency of the claim, not the facts supporting it. Charter One Mortgage
       Corp. v. Condra, 865 N.E.2d 602, 604 (Ind. 2007). Review of a trial
       court’s grant or denial of a motion based on Trial Rule 12(B)(6) is therefore
       de novo. Id. When reviewing a motion to dismiss, we view the pleadings
       in the light most favorable to the nonmoving party, with every reasonable
       inference construed in the nonmovant’s favor. City of New Haven v.
       Reichhart, 748 N.E.2d 374, 377 (Ind. 2001). A complaint may not be
       dismissed for failure to state a claim upon which relief can be granted
       unless it is clear on the face of the complaint that the complaining party is
       not entitled to relief. Id. (citing McQueen v. Fayette County Sch. Corp.,
       711 N.E.2d 62, 65 (Ind. Ct. App. 1999), trans. denied).

Babes Showclub, Jaba, Inc. v. Lair, 918 N.E.2d 308, 310 (Ind. 2009).

       “The doctrine of res judicata prevents the repetitious litigation of disputes that are

essentially the same.” Afolabi v. Atlantic Mortg. & Inv. Corp., 849 N.E.2d 1170, 1173

(Ind. Ct. App. 2006) (citing French v. French, 821 N.E.2d 891, 896 (Ind. Ct. App.

2005)). “The principle of res judicata is divided into two branches: claim preclusion and

issue preclusion, also referred to as collateral estoppel.” Id.

                                   A. Claim Preclusion

              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 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

                                              4
       adjudicated in the former action must have been between the parties to the
       present suit or their privies. In determining whether claim preclusion
       should apply, it is helpful to inquire whether identical evidence will support
       the issues involved in both actions.
               A party is not allowed to split a cause of action, pursuing it in a
       piecemeal fashion and subjecting a defendant to needless multiple suits.

Indpls. Downs, LLC v. Herr, 834 N.E.2d 699, 703 (Ind. Ct. App. 2005), trans. denied

(internal citations and quotation marks omitted).

       As previously mentioned, Isby made four claims against seven defendants in this

second suit, six of which defendants were also named in the first suit. There is no dispute

that the prior judgment was rendered by a court of competent jurisdiction on the merits,

so our analysis will focus on the other two requirements of claim preclusion. Isby has not

brought any claim in the second suit that could not have been determined in the first. See

id. Although Isby claims that the contract breach claim brought in this suit is distinct

from that brought in the first suit and that his three other claims were not known to him

when he filed the first suit, there is no claim of newly discovered evidence or anything

else that might excuse his failure to bring all of his claims at one time.

       As for the final requirement that all involved be parties or privies, six defendants

to the first suit are also named in the second, so all requirements for claim preclusion are

clearly met. At least in the case of the six defendants common to both suits, Isby seems

to be engaging in the sort of cause-of-action-splitting and piecemeal litigation that are not

allowed. See id.

       Hoefling, however, was not a party to the first suit, and so claim preclusion will

apply to him only if he is a privy to one or more of the other defendants in this suit.


                                              5
         Whereas a “party” is one who is directly interested in the subject matter and
         has a right to make a defense or control the proceedings, a “privy” is one
         who after rendition of the judgment has acquired an interest in the subject
         matter affected by the judgment. The term includes those who control an
         action, though not a party to it, and those whose interests are represented by
         a party to the action. As such, an entity does not have to control a prior
         action, or be a party to a prior action, for privity to exist. Therefore, in
         determining the parties for res judicata purposes, this court looks beyond
         the nominal parties and treats those whose interest are involved as the real
         parties.

MicroVote Gen. Corp. v. Ind. Election Comm’n, 924 N.E.2d 184, 196 (Ind. Ct. App.

2010).     There is no indication that Hoefling acquired any interest in the first suit

following judgment, that he had any control over it, or that his interests were represented

by any of the six defendants. As such, Hoefling was not a privy to any of the six

defendants, and claim preclusion does not bar Isby’s contract breach claim against him.

                                     B. Issue Preclusion

         We need only to determine whether the breach of contract claim against Hoefling

is barred by the doctrine of issue preclusion.

                Issue preclusion, or collateral estoppel, 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. Where collateral
         estoppel is applicable, the former adjudication will be conclusive in the
         subsequent action even if the two actions are on different claims. However,
         the former adjudication will only be conclusive as to those issues that were
         actually litigated and determined therein. Collateral estoppel does not
         extend to matters that were not expressly adjudicated and can be inferred
         only by argument. In determining whether to allow the use of collateral
         estoppel, the trial 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 collateral estoppel given the
         facts of the particular case.




                                                 6
Afolabi, 849 N.E.2d at 1175-76 (citing Indpls. Downs, 834 N.E.2d at 702 (internal

citations omitted)). “The application of the principle of collateral estoppel involves a two

step process: (1) determine what the first judgment decided; and (2) examine how that

determination bears on the second case.” Webb v. State, 453 N.E.2d 180, 183 (Ind. 1983)

(citing U.S. v. Mespoulede, 597 F.2d 329, 333 (2d Cir. 1979)).

       The only issue actually adjudicated in the first suit was whether the Agreement

entitled Isby to receive a “mint” television, and the judgment in the first suit was based

on the conclusion that the Agreement only entitled him to receive a used television in “as

is” condition. As previously mentioned, Isby now claims that he expected to receive a

“mint” television and that Hoefling breached the Agreement by allowing a defective

television to be given to him. Isby’s expectations, however, have nothing to do with the

language of the Agreement; there can be no breach of the Agreement for failing to deliver

a “mint” television if the Agreement only required delivery of a used television in “as is”

condition, regardless of Isby’s expectations. Indeed, there can be no breach, even for

delivery of a defective television, when the Agreement only required delivery of one in

“as is” condition. Isby’s breach of contract claim against Hoefling, even though it was

not barred by claim preclusion, is barred by issue preclusion.

                                     CONCLUSION

       All of Isby’s claims against Gilstrap, Basinger, Randall, Ewers, Buss, and Sloan

are barred as res judicata by the doctrine of claim preclusion. Isby’s contract breach

claim against Hoefling, the only one brought against him, is barred by the doctrine of

issue preclusion. Consequently, we affirm the trial court’s judgment in all respects.

                                             7
We affirm the judgment of the trial court.

VAIDIK, J., and CRONE, J., concur.




                                     8
