      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
                                                                             Dec 28 2015, 8:37 am
      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
      Gregg Romaine
      Romaine Law
      Fishers, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Leo Prassas,                                            December 28, 2015
      Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                              64A05-1508-CT-1081
              v.                                              Appeal from the Porter Superior
                                                              Court
      Corick Construction, LLC,                               The Honorable William E. Alexa,
      Appellee-Defendant.                                     Judge
                                                              Trial Court Cause No.
                                                              64D02-1502-CT-891



      Bradford, Judge.



                                          Case Summary
[1]   In February of 2013, Appellant-Plaintiff Leo Prassas contracted with Appellee-

      Defendant Corick Construction, LLC to have some roofing work done at his
      Court of Appeals of Indiana | Memorandum Decision 64A05-1508-CT-1081 | December 28, 2015      Page 1 of 13
      residence. After the work was completed, Prassas filed a small claims action

      against Corick Construction alleging that the repairs had been completed in an

      unworkmanlike manner. After the small claims court found in favor of Corick

      Construction, Prassas filed the instant lawsuit, which alleges breach of contract,

      breach of implied warranty, and deceptive practices. Corick Construction

      subsequently filed a motion to dismiss. Prassas responded to this motion and

      filed a motion for default judgment. Following a hearing on the parties’

      motions, the trial court issued an order in which it ruled in favor of Corick

      Construction.


[2]   Prassas appealed, arguing that the trial court erred in ruling in favor of Corick

      Construction. Concluding that the trial court did not commit reversible error in

      effectively treating Corick Construction’s motion to dismiss as a motion for

      summary judgment but that issues of material fact remain that would preclude

      an award of summary judgment in Corick Construction’s favor, we reverse the

      judgment of the trial court and remand the matter to the trial court for further

      proceedings.



                            Facts and Procedural History
[3]   At all times relevant to the instant appeal, Corick Construction was under a

      voluntary-compliance order aimed at curtailing deceptive practices against

      consumers to whom it had supplied roofing services. As part of this order,

      Corick Construction was ordered to change its standard contract form to



      Court of Appeals of Indiana | Memorandum Decision 64A05-1508-CT-1081 | December 28, 2015   Page 2 of 13
      comply with Indiana law and to refrain from acting as a public insurance

      adjuster.


[4]   On February 13, 2013, Prassas and Corick Construction entered into a contract

      for Corick to repair and replace Prassas’s hail-damaged roof. The contract

      entered into by the parties is the same contract as the Indiana Attorney

      General’s Office had prohibited Corick Construction from using. The contract

      failed to provide a sufficient scope of services and provided for a guaranteed

      recovery fee from the insurance proceeds even if Corick Construction did not

      complete the contracted work.


[5]   Corick Construction worked with Prassas and his insurance company to assess

      Prassas’s damages and the associated repairs to assure that Prassas’s insurance

      company would pay for the necessary roof repairs. In completing the

      contracted work, Corick Construction replaced the shingles on the roof and

      partially replaced the gutters and downspouts. Prassas, a senior citizen, was not

      able to get up on the roof to inspect the installation of the shingles but

      repeatedly complained to Corick Construction that the downspouts were not

      replaced properly and the gutters were not angled properly to allow for the

      proper flow of water into the downspouts.


[6]   During the fall of 2014, a neighbor approached Prassas and informed him that

      something appeared to be wrong with his roof. The neighbor, who had a

      background in construction, told Prassas that the roof looked “wavy” and that

      the shingles looked slightly curled at the edges. Appellant’s App. p. 6. During


      Court of Appeals of Indiana | Memorandum Decision 64A05-1508-CT-1081 | December 28, 2015   Page 3 of 13
      the late fall 2014 and early winter of 2015, Prassas had his roof inspected by

      several roofers. These roofers informed Prassas that they observed that the

      shingle spacing varied greatly, the shingles looked worn and had curled at the

      edges, and the gutters were not properly angled at the rear of the house.


[7]   On February 4, 2015, Prassas filed a complaint for damages against Corick

      Construction alleging breach of contract, breach of implied warranty, and

      deceptive practices. In this complaint Prassas acknowledges that Corick

      Construction maintains that the roof and gutters were properly replaced and

      that there is no defect with the work performed under the contract. Prassas

      claims, however, that he will have to have the roof replaced and the gutters

      rehung as a result of Corick Construction’s allegedly faulty installation of the

      roof and gutters. Prassas claims that by acting as a public adjuster, Corick

      Construction caused Prassas to “not have a final inspection by an insurance

      representative who probably would have seen the defective workmanship.”

      Appellant’s App. p. 8.


[8]   On March 27, 2015, Corick Construction filed an Indiana Trial Rule 12(B)(6)

      motion to dismiss Prassas’s complaint. In this motion, Corick Construction

      alleged that the instant law suit was barred by the doctrine of res judicata because

      Prassas had filed a small claims action against Corick Construction alleging

      unworkmanlike quality of the roof replacement as it related to the same

      contract and same set of facts that were referred to in the instant action. Corick

      Construction indicated that the small claims action had been resolved against

      Prassas, with the judge specifically finding that Prassas failed to prove faulty

      Court of Appeals of Indiana | Memorandum Decision 64A05-1508-CT-1081 | December 28, 2015   Page 4 of 13
       workmanship in completing the contracted work. Corick Construction further

       indicated that following the small claims court’s ruling, Prassas, by counsel, had

       filed a motion to correct error and that this motion was subsequently deemed

       denied by the small claims court.


[9]    On March 31, 2015, Prassas responded to Corick Construction’s motion to

       dismiss and moved for default judgment. Following a May 5, 2015 hearing on

       the pending motions, the trial court took the matter under advisement. The

       trial court subsequently issued an order in which it ruled in favor of Corick

       Construction. This appeal follows.



                                 Discussion and Decision
[10]   Initially, we note that our disposition in the instant matter has been made more

       difficult by the fact that Corick Construction failed to submit an appellee brief.

       “Instead of imposing upon this court the burden of controverting arguments

       advanced for reversal, however, Indiana courts have long applied a less

       stringent standard of review with respect to showings of reversible error when

       the appellee fails to file a brief.” Johnson Cty. Rural Elec. Membership Corp. v.

       Burnell, 484 N.E.2d 989, 991 (Ind. Ct. App. 1985). Thus, Prassas need only

       establish the lower court committed prima facie error to win reversal. Id. (citing

       Ind. State Bd. of Health v. Lakeland Disposal Serv., Inc., 461 N.E.2d 1145, 1145 n. 1

       (Ind. Ct. App. 1984)). “In this context, ‘prima facie’ means at first sight, on

       first appearance, or on the face of it.” Id. (quoting Harrington v. Hartman, 142

       Ind. App. 87, 88, 233 N.E.2d 189, 191 (1968)). Likewise, the statement of facts

       Court of Appeals of Indiana | Memorandum Decision 64A05-1508-CT-1081 | December 28, 2015   Page 5 of 13
       contained in Prassas’s brief “is deemed by us to be accurate and sufficient for

       the disposition of this appeal.” Id. (citing Colley v. Carpenter, 172 Ind. App. 638,

       362 N.E.2d 163 (1977)).


         I. Proper Treatment of a Trial Rule 12(B)(6) Motion to
              Dismiss as a Motion for Summary Judgment
[11]   On appeal, Prassas contends that the trial court erred in ruling in favor of

       Corick Construction. In raising this contention, Prassas asserts that the trial

       court relied on evidence outside of the pleadings. Prassas further asserts that

       the trial court effectively treated Corick’s motion to dismiss as a motion for

       summary judgment. Prassas claims that it was erroneous for the trial court to

       do so because it ruled on the motion without providing Prassas the opportunity

       to put forth evidence which he claims would show the existence of genuine

       issues of material fact.


[12]           [Indiana Trial] Rule 12(B) provides that a motion to dismiss for
               failure to state a claim 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 court must
               grant the parties a reasonable opportunity to present T.R. 56
               materials. See T.R. 12(B); Biberstine v. New York Blower Co., 625
               N.E.2d 1308, 1313 (Ind. Ct. App. 1993), trans. dismissed. 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. Ayres v.
               Indian Heights Volunteer Fire Department, 493 N.E.2d 1229, 1233
               (Ind. 1986).


       Court of Appeals of Indiana | Memorandum Decision 64A05-1508-CT-1081 | December 28, 2015   Page 6 of 13
               Our review of the relevant cases discloses at least four
               considerations pertinent to a determination of whether a trial
               court’s failure to give express notice deprives the nonmovant of a
               reasonable opportunity to respond with T.R. 56 materials. First,
               we consider 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). See
               Duran v. Komyatte, 490 N.E.2d 388, 391 (Ind. Ct. App. 1986),
               trans. denied (noting that the operation of T.R. 12(B) is “well
               known” and a “clear mandate” of which counsel should be
               cognizant). Second, we consider whether there was ample time
               after the filing of the motion for the nonmovant to move to
               exclude the evidence relied upon by the movant in support of its
               motion or to submit T.R. 56 materials in response thereto. See
               Biberstine, 625 N.E.2d at 1314. Third, we consider whether the
               nonmovant presented “substantiated argument” setting forth
               how she “would have submitted specific controverted material
               factual issues to the trial court if [she] had been given the
               opportunity.” Ayres, 493 N.E.2d at 1233 (citing Macklin v. Butler,
               553 F.2d 525, 528 (7th Cir. 1977)).


       Azhar v. Town of Fishers, 744 N.E.2d 947, 950-51 (Ind. Ct. App. 2001) (first set of

       brackets added, footnote omitted).


[13]   In Azhar, we concluded that the trial court did not commit reversible error by

       treating the Defendants’ motion to dismiss as a motion for summary judgment

       because the Defendants’ reliance on evidence outside the pleadings was

       unmistakable and “given the mandatory wording of Trial Rule 12(B), Azhar

       should have known that the trial court was compelled to convert the motion to

       a summary judgment motion.” Id. at 951. We also noted that the approximate

       three-month period between the filing of the motion to dismiss and the hearing


       Court of Appeals of Indiana | Memorandum Decision 64A05-1508-CT-1081 | December 28, 2015   Page 7 of 13
       thereon was ample time to allow Azhar to “(1) move to exclude the evidence

       relied upon by the Defendants; (2) file a motion for additional time to conduct

       discovery to ascertain the evidence in opposition to the motion; and/or (3)

       submit materials in opposition thereto.” Id. We last noted that Azhar had

       “failed to show, either in the hearing below or in her appellate briefs, what

       specific additional material she would have presented if express notice had been

       given.” Id.


[14]   Here, similar to Azhar, we must conclude that the trial court did not commit

       reversible error by considering the evidence outside the pleadings submitted by

       Corick Construction and effectively treating Corick Construction’s motion to

       dismiss as a motion for summary judgment. Again, “[t]he 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.” Id. at 950.

       Upon review, we cannot say that Prassas was prejudiced or denied a reasonably

       opportunity to respond.


[15]   As in Azhar, Corick Construction’s reliance on evidence outside the pleadings

       was unmistakable. Thus, given the mandatory wording of Indiana Trial Rule

       12(B), Prassas should have known that the trial court was compelled to convert

       the motion into a motion for summary judgment. The record reflects that

       counsel for Prassas did, in fact, make such realization, acknowledging that

       because Corick Construction attached the small claims court judgment to its



       Court of Appeals of Indiana | Memorandum Decision 64A05-1508-CT-1081 | December 28, 2015   Page 8 of 13
       motion, the motion should have been treated as a motion for summary

       judgment.


[16]   We also believe that Prassas had ample time to (1) move to exclude the

       evidence relied on by Corick Construction, (2) file a motion for additional time

       to conduct discovery, or (3) to submit materials in opposition thereto. The

       record reveals that Prassas responded to Corick Construction’s motion. Over

       one month later, the trial court conducted a hearing on the pending motions.

       During this hearing, counsel for Prassas presented argument before the trial

       court stating Prassas’s opposition to Corick Construction’s motion. In doing

       so, counsel for Prassas acknowledged that Corick Construction’s motion was,

       in effect, a summary judgment motion. Counsel for Prassas also presented

       argument akin to what would be argued during a summary judgment hearing,

       i.e., argument aimed at showing that an issue of material fact existed with

       regard to whether Prassas’s claims were barred by the doctrine of res judicata.

       Specifically, Prassas argued that the issues raised in the instant matter were not

       the same as those raised in the small claims action but rather represented

       separate and distinct allegations of inadequate workmanship by Corick

       Construction. Prassas has not indicated what specific additional information he

       would have presented if express notice that the motion to dismiss would be

       treated as a motion for summary judgment had been given.




       Court of Appeals of Indiana | Memorandum Decision 64A05-1508-CT-1081 | December 28, 2015   Page 9 of 13
                  II. Propriety of Judgment in Favor of Corick
                                   Construction
[17]   Prassas appears to alternatively contend on appeal that, even assuming the trial

       court correctly treated Corick Construction’s motion to dismiss as a motion for

       summary judgment, the trial court’s ruling in favor of Corick Construction was

       erroneous. Thus, having concluded that the trial court did not commit

       reversible error by considering Corick Construction’s motion to dismiss as a

       motion for summary judgment, we must next consider whether summary

       judgment is appropriate.

               The purpose of summary judgment is to end litigation about
               which there can be no factual dispute and which may be
               determined as a matter of law. LeBrun v. Conner, 702 N.E.2d 754,
               756 (Ind. Ct. App. 1998). The moving party bears the burden of
               making a prima facie showing that there are no genuine issues of
               material fact. Ind. Trial Rule 56(C); Campbell v. Criterion Group,
               613 N.E.2d 423, 428 (Ind. Ct. App. 1993), on reh’g 621 N.E.2d
               342. It is only after the moving party makes a prima facie
               showing of the non-existence of a genuine issue of material fact
               that the burden shifts to the non-moving party to set forth specific
               facts showing the existence of a genuine issue for trial. T.R.
               56(E); Campbell, 613 N.E.2d at 428.


       Id. at 952.


[18]           Four elements determine whether a judgment has res judicata
               effect: 1) the former judgment must have been rendered by a
               court of competent jurisdiction; 2) the matter now in issue was,
               or might have been, determined in the former suit; 3) the
               particular controversy previously adjudicated must have been
               between the parties to the present suit or their privies; and 4) the

       Court of Appeals of Indiana | Memorandum Decision 64A05-1508-CT-1081 | December 28, 2015   Page 10 of 13
                judgment in the former suit must have been rendered on the
                merits. Cox v. Ind. Subcontractors Ass’n, Inc., 441 N.E.2d 222, 225
                (Ind. Ct. App. 1982).


       Moreton v. Auto-Owners Ins., 859 N.E.2d 1252, 1254 (Ind. Ct. App. 2007)

       (emphasis added). The parties do not appear to dispute that the small claims

       judgment was rendered by a court of competent jurisdiction, that the particular

       controversy previously adjudicated was between the same parties as the instant

       matter, or that the small claims judgment was rendered on the merits.


[19]   However, Prassas argued below, and again on appeal, that the issues presented

       in the instant law suit were not the same as those raised in the small claims

       action. Prassas specifically asserts on appeal that although Corick Construction

       claims that he was “trying to take two bites at the apple, it’s just not true.” Tr.

       p. 12.


[20]   The documents designated by Corick Construction and the argument offered by

       Prassas indicate that the small claims action involved allegations of faulty

       workmanship relating to the installation of a soffit. The complaint filed in the

       instant matter, however, involves the allegedly improper installation of shingles,

       gutters, and downspouts. Specifically, the complaint alleges that Corick

       Construction committed a breach of contract and breach of implied warranty

       with regard to the allegedly improper installation of the shingles, gutters, and

       downspouts. The complaint also contains the claim that the allegedly improper

       installation was not noticed upon final inspection because Corick Construction,

       in violation of a voluntary-compliance order that it had entered into with the

       Court of Appeals of Indiana | Memorandum Decision 64A05-1508-CT-1081 | December 28, 2015   Page 11 of 13
       Indiana Attorney General, worked with Prassas’s insurance company to assess

       Prassas’s damages, the associated necessary repairs, and the sum of funds that

       would be paid out for the completed repairs.


[21]   In addition, the complaint alleges that Prassas did not learn of the full extent of

       the allegedly improper installation of the shingles, gutters, and downspouts

       until he had his roof inspected by several roofers in late 2014 and early 2015.

       The designated documents demonstrate that the small claims court trial was

       conducted on November 21, 2014, and the court’s decision issued on December

       3, 2014. Thus, the pleadings and designated documents present an issue of

       material fact as to whether Prassas was aware of the allegedly improper

       installation of the shingles, gutters, and downspouts at the time he filed the

       small claims court action. It is reasonable to assume that if he did not know of

       the improper installation, he could not have included such claims in the small

       claims action.


[22]   Given that Prassas need only make a prima facie case of error, we conclude that

       the record indicates that an issue of material fact exists as to whether the claims

       raised in the instant lawsuit were the same as those raised before the small

       claims court. Because issue of material fact remains, we conclude that the trial

       court erred in ruling in Corick Construction’s favor and dismissing the instant

       lawsuit.


[23]   The judgment of the trial court is reversed and the matter remanded to the trial

       court for further proceedings.


       Court of Appeals of Indiana | Memorandum Decision 64A05-1508-CT-1081 | December 28, 2015   Page 12 of 13
Baker, J., and Pyle, J., concur.




Court of Appeals of Indiana | Memorandum Decision 64A05-1508-CT-1081 | December 28, 2015   Page 13 of 13
