MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Dec 18 2019, 8:54 am

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


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEES
Mark J. Roberts                                          Clifford R. Whitehead
Maggie L. Smith                                          Evansville, Indiana
Jeffrey S. Dible
Jenai M. Brackett
Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

LaDonna Snyder, as Personal                              December 18, 2019
Representative of the Estate of                          Court of Appeals Case No.
Alan Lance Wright,                                       18A-PL-2702
Appellant-Defendant,                                     Appeal from the
                                                         Boone County Circuit Court
        v.                                               The Honorable
                                                         J. Jeffrey Edens, Judge
Alisa K. Wright and                                      Trial Court Cause No.
BioConvergence LLC,                                      06C01-1703-PL-239
Appellees-Plaintiffs.



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-2702 | December 18, 2019                 Page 1 of 21
                                               Case Summary
[1]   Alisa K. Wright’s (Alisa) marriage to Alan Lance Wright (Lance), now

      deceased, was dissolved in January 2017 in the Boone Superior Court. As part

      of the dissolution, matters were alleged and presented concerning Lance’s

      conduct while employed with BioConvergence LLC (BioC) – a company that

      Alisa formed in 2004 – and whether such conduct constituted dissipation of

      assets for purposes of division of the marital estate. In September 2016, shortly

      before the dissolution final hearing, Alisa filed in another court a complaint,

      later amended to add BioC as a plaintiff, asserting eight claims against Lance

      stemming from his employment with BioC and his position on the board of

      directors, including breach of fiduciary duty, breach of contract, tortious

      interference with business relationships, and misappropriation of trade secrets.

      About a year after the dissolution was final, Lance filed a motion for summary

      judgment asserting that the claims had been fully adjudicated by the dissolution

      court and were barred by res judicata. The trial court denied his motion, and

      the personal representative of Lance’s estate, 1 LaDonna Snyder (Snyder), now

      appeals asserting that summary judgment should have been granted because the

      dissolution court already resolved the matters involving Lance’s conduct related

      to BioC.


[2]   We affirm.




      1
          Lance passed away in January 2019.


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2702 | December 18, 2019   Page 2 of 21
                                   Facts & Procedural History
[3]   Alisa and Lance married in 1987, after graduating from college, where Alisa

      studied pharmacy and Lance studied engineering. There were no children born

      of the marriage. Alisa and Lance each had careers at different businesses, then,

      in 2004, Alisa formed and began working at BioC, a service provider to the life

      sciences industry that provides contract services, including development,

      production, testing, supply chain, and consulting services, to the

      pharmaceutical industry. BioC is headquartered in Bloomington, Indiana, and,

      as reflected in its 2005 Articles of Incorporation, its initial members were Alisa,

      Lance, and two other individuals. Lance began working part-time for BioC in

      2004 and began serving on the Board of Directors and Board of Advisors in

      2005. In 2006, he left employment with another company and joined BioC full-

      time, where he remained until he was terminated in August 2012. Lance was,

      at first, Chief Engineering Officer at BioC, and, in 2008, he became Chief

      Operating Officer. Alisa at all times has been the majority member and Chief

      Executive Officer of BioC. At the time of their dissolution, Alisa owned

      approximately 75% and Lance owned approximately 5% of BioC’s total units.


[4]   In August 2012, Lance filed a petition for dissolution in the Boone Superior

      Court. In the dissolution proceedings, Alisa claimed that Lance had dissipated

      marital assets, including BioC, by engaging in misconduct that harmed both

      Alisa and BioC. During the dissolution proceeding, in August 2014, BioC’s

      four-person Board of Directors consented to allowing the Board’s Chairperson,

      Kathy Jackson, to intervene in the dissolution on behalf of BioC to protect the

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2702 | December 18, 2019   Page 3 of 21
      confidentiality of certain requested documents. In September 2016, the

      dissolution court held a six-day final hearing. Alisa testified and presented

      evidence in support of her position that Lance had dissipated assets of BioC by

      committing “deceit, willful misconduct, negligence, and fraud,” in “violation of

      the operating agreement and his duties as an officer and member” and engaged

      in the “concealment of key . . . information that is needed to make good

      business decisions and that he knew were needed to make good business

      decisions.” Appellant’s Appendix Vol. III at 5. More specifically, Alisa testified

      that Lance concealed meetings he had with other BioC employees regarding

      Alisa and BioC; concealed communications relating to the valuation of BioC

      and securities fraud claims; engaged in an extramarital affair with a BioC

      employee; assisted in and provided information to another BioC employee for

      suit against Alisa and BioC; made false and defamatory statements about Alisa;

      took emails containing BioC information when leaving employment at BioC;

      and disclosed confidential information to third-parties.


[5]   In January 2017, the dissolution court issued findings and conclusions in which

      it determined that a 50/50 split of the marital estate was appropriate. Its

      findings and conclusions included:


              8. Between 2005 and November of 2008, Lance and Alisa paid
              into BioC a total of approximately $3,260,000.00 of combined
              capital contribution in exchange for units in November 2005 and
              November 2008. Units were allocated as to give Alisa
              approximately 75% and Lance approximately 5% of the total
              units of BioC.


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2702 | December 18, 2019   Page 4 of 21
                                                       ***


           13. Alisa advances two theories about Lance and his work at
           BioC. One, he was incompetent. 2 Two, he was deceitful. 3 For



2
    In its findings, the dissolution court footnoted as follows:

           A spouse’s dereliction of business duties when a business entity is an asset of the marriage
           constitutes dissipation. Stutz v. Stutz, 556 N.E.2d 1346, 1349 (Ind. Ct. App. 1990).


           As the principle is suggested to apply here, Lance supposedly dropped the ball on the
           filing of a timely warranty claim for architectural windows installed by his friend Greg
           Menefee’s company for [a] custom building. Sixteen windows in the BioC building had
           to be replaced. Lance probably could have handled that project better, but there is no
           showing that that shortcoming materially impacted the company’s value or profitability.
           Then there is the fact that Lance’s job functions after he left BioC were taken over by
           other employees — he was not replaced. The Court heard testimony from those taking
           on his responsibilities tantamount to that there were messes that had to be cleaned up
           after Lance left. Employees who have followed Lance may truly think that. But it rings
           hollow to the Court. Lance worked for BioC for more than six years. If he was
           incompetent enough to have harmed BioC’s business, he’d have been fired long before.
           Lance’s work was adequate. It was satisfactory enough at least to not harm BioC’s
           business or the wealth of the parties.


Appellant’s Appendix Vol. II at 57.
3
    Here, the dissolution court footnoted:

           When considering dissipation and whether a party wasted or misused marital assets, Indiana law
           requires this Court to consider whether the allegedly dissipating party had the intent to hide, deplete,
           or divert a marital asset; whether supposedly wasteful expenditures, acts or omissions benefitted the
           mar[ital] enterprise or occurred for a purpose entirely unrelated to the marriage; whether the waste
           was remote in time and effect or occurred just before the filing of a divorce petition; and whether the
           diminishment was excessive or de minimis.” Estudillo v. Estudillo, 956 N.E.2d 1084, 1094 (Ind. Ct.
           App. 2011).
           There was some suboptimal behavior at BioC from late 2011-2012. By late 2011, the Wright[s’]
           marriage was unraveling. Lance was considering leaving the home and in April 2012 indicated that
           he would disengage from BioC. Yet these two had to continue to work together. It could not have
           been a pleasant time and Lance is credible in his claims that Alisa was not doing her best managerial
           work. But if Lance, not the boss but the COO reporting to Alisa, ever had license to critique her job
           performance as CEO it was decidedly not soon after a certain admitted “error in judgment” on his
           part. Lance wasn’t his best self either.
           No paramour ever financially benefited to the detriment of the marital estate or BioC. Lance did
           not dissipate. The only other point in bringing it up is to explain why the Court does not find
           credible Lance’s version that Alisa was wrecking the company. Alisa did the best she could and she

Court of Appeals of Indiana | Memorandum Decision 18A-PL-2702 | December 18, 2019                     Page 5 of 21
         either or both of these reasons, generally a theory of dissipation,
         Lance ought to receive a share of the marital estate of less than
         fifty percent, so she theorizes. While he does not call for an
         unequal distribution, Lance, for his part, suggests that Alisa was
         managing the company poorly and that he and his acolytes
         working there saved it.


         14. But, at least insofar as harming BioC and diminishing the
         marital estate, the Court finds that any mistakes Lance made
         during his six plus years working at BioC did not do that. Any of
         Lance’s dishonesty or surreptitious office politicking, while
         personally hurtful to Alisa, did not financially harm her or BioC.


         15. Alisa and a human resources employee met with Lance on
         August 9, 2012 to inform him that his last day at BioC was to be
         August 31, 2012. In that meeting, Lance was told not to return
         to BioC until the following Monday. Lance disobeyed that
         instruction and, along with two other employees, visited BioC on
         Saturday August 11, 2012. Further, Lance returned alone to
         BioC on Sunday, August 12, 2012. Lance admits he retrieved
         some emails and financial records of BioC but says that he was
         entitled to do that and that many items retrieved were personal in
         nature. It is suspicious that he would come into the office on the
         weekend when specifically told not to and then collect material.
         But again the Court has not been shown how this disobedience
         harmed the value of BioC. As for his right as a minority owner
         to review financial records, Lance certainly had the right to look
         at financial records of a business in which he was a minority




         was being productive. She may have been focused on the external aspects of BioC’s business,
         finding new clients and diversifying business, but that is [a] big part of what a CEO does. Any
         notion that Alisa’s job performance as CEO harmed BioC is just not supported by the facts. BioC is
         today a profitable going concern mainly because of Alisa’s vision in starting the company and
         because of her leadership.
Id. at 57-58.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-2702 | December 18, 2019               Page 6 of 21
              owner. But taking them out was not the proper way to go about
              exercising that right.


                                                     ***


              18. When Lance left, the value of the business, as will be
              discussed in more detail below, was about $1.5 million. BioC is
              Alisa’s creation. Of the $3.2 million that Alisa and Lance
              invested during its start-up phase, most of which was money
              Alisa brought into the marriage, more than half of that was gone
              in 2012. In evaluating whether something other than a 50/50
              division of wealth is appropriate, as of 2012 the parties’ relative
              contribution to the marital estate is an equitable wash. Put
              another way, from 1987-2005, Alisa has made most of the money
              the Wrights earned. From 2005-2012, she lost most of what they
              lost.


                                                     ***


              24. Alisa’s interest of 58,381.624 units 74.88% of BioC is worth
              $1,403,706.00. Lance’s 4,223.81 units 5.42% is worth
              $101,604.00. The total value to the marital estate of the Wrights’
              interest in BioC of 62,605.433 units 80.3% of the controlling units
              of BioC is $1,505,310.00. Each unit Lance and Alisa own is
              worth $24.05.


      Appellant’s Appendix Vol. II at 56-60.


[6]   During the hearing, the dissolution court heard evidence about a transfer of

      $100,000 in 2011 and 2012 from Lance and Alisa to their friends Greg and Julie

      Menefee, who also owned units of BioC. The Menefees asked the Wrights for

      the $100,000 because Greg needed to increase his liquid assets on his personal


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2702 | December 18, 2019   Page 7 of 21
balance sheet in order for him to be able to be bonded in the construction

industry. Ultimately, the Wrights wrote eight checks to the Menefees for the

funds, and there was conflicting testimony presented at the dissolution final

hearing as to whether the $100,000 was a loan or a gift, with Lance maintaining

that the two couples had helped each other out in the past and he intended to

give the money to the Menefees, and Alisa testifying that the $100,000 was a

short term loan that she intended would be repaid. The dissolution court found

that the eight checks were “a business accommodation,” not gifts, and it further

stated:


        55. What Alisa has is a personal asset; a chose in action which is a claim
        to a right to recover money from the Menefees. Maybe it is a loan.
        Maybe it is equitable claim for unjust enrichment. Whatever kind
        of expected (hoped for) repayment chose of action it is, it is not part of the
        marital estate and it is not capable of division. McNevin v. McNevin,
        447 N.E.2d 611, 615 (Ind. Ct. App. 1983). Neffle v. Neffle, 483 N.E.2d
        767, 771 (Ind. Ct. App. 1985), trans. denied. “The contingent and
        speculative nature and value of a chose in action is what makes it
        incapable of division and hence excluded from marital property.”
        Id. at 771-72.


        56. Whatever Alisa is able to recover in her lawsuit against the
        Menefees, if indeed she is able recover anything, she is entitled to
        keep. This Court has nothing to say about its value and who it
        ought to be set off to, because it is not marital property. It is too
        speculative.


        57. . . . [I]f Lance took a position identical to Alisa’s – that there
        was always the understanding that the Menefees would pay back
        the money within a short period of time – the claim against the


Court of Appeals of Indiana | Memorandum Decision 18A-PL-2702 | December 18, 2019    Page 8 of 21
              Menefees would still be only a chose in action and not marital asset
              subject to division. . . .


      Id. at 65-66 (emphases added).


[7]   Alisa appealed the dissolution court’s decision, raising various challenges, and

      this court issued a memorandum decision on September 28, 2017, affirming the

      trial court’s equal division of marital property. Wright v. Wright, No. 06A01-

      1701-DR-52 (Ind. Ct. App. Sept. 28, 2017), trans. denied. In addressing Alisa’s

      claim that the court’s division was erroneous because of Lance’s alleged

      dissipation stemming from his conduct at BioC, the Wright court stated:


              Wife asserts that Husband’s “obvious and heinous breaches of
              his fiduciary obligations resulted in dissipation of the marital
              estate, and specifically [Wife]’s share of it.” Appellant’s Br. at
              20. In support of that contention, Wife first maintains that there
              was “sufficient evidence” of Husband’s dissipation, such as
              testimony that he “worked with others to increase the expenses
              and risk to BioC,” he “breached certain fiduciary duties,” and his
              “actions introduced uncertainty into BioC’s operations.”
              Appellant’s Br. at 20. But the trial court expressly found that
              “any mistakes [Husband] made during his six-plus years working
              at BioC” did not harm BioC or diminish the value of the marital
              property. Appellant’s App. Vol. 2 at 56. We will not reweigh
              that evidence on appeal.


      Wright, slip op. at *9.


[8]   Meanwhile, on September 2, 2016, which was shortly before the dissolution

      trial began, Alisa filed in the Monroe Circuit Court a complaint against Lance,

      which Alisa amended in August 2017 to add BioC as a party plaintiff and

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2702 | December 18, 2019   Page 9 of 21
additional claims. 4 As is relevant here, the Amended Complaint alleged the

following facts common to all counts:


        14. While acting as a member, director, and/or officer of BioC,
        Mr. Wright engaged in the following deliberate and repeated
        willful mismanagement and misconduct, and he individually and
        deliberately directed and persuaded others to do the same by his
        use of deceit to conceal and deny the truth of the relevant
        matters:


        a. He knowingly, intentionally, and deliberately concealed from
        BioC and from Ms. Wright, and by deceit he persuaded others to
        conceal from BioC and from Ms. Wright, factual information
        that he was obligated to disclose to BioC and to Ms. Wright.


        b. Over the course of several years while married to Alisa, he
        knowingly, intentionally, and deliberately engaged in a lengthy
        extramarital affair with another BioC employee, and while
        engaged in this affair he improperly advanced her career, her
        financial goals, and her personal goals within BioC, he
        improperly gave her access to confidential BioC information, and
        he caused BioC to enter into a loan agreement with her on
        improperly favorable terms.


        c. When confronted about his extramarital affair, he falsely
        denied the existence of the affair and continued to knowingly,
        intentionally, and deliberately conceal and distract from the affair
        by defaming Ms. Wright.




4
 In February 2017, the Monroe Circuit Court court granted Lance’s petition to transfer venue, and the case
was transferred to the Boone Circuit Court.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-2702 | December 18, 2019             Page 10 of 21
        d. He knowingly, intentionally, and deliberately collaborated
        with, provided confidential information and documents to, and
        assistance to, BioC’s former chief financial officer, Kathryn Eddy
        (“Ms. Eddy”) for use by Ms. Eddy in her lawsuit against BioC
        and Ms. Wright, and he actively colluded with Ms. Eddy, her
        agents, and other third-parties, in advancing meritless claims
        asserted by Ms. Eddy against BioC and Ms. Wright.


        e. He knowingly, intentionally, and deliberately made false and
        defamatory statements to third-parties, including BioC
        employees and members, accusing Ms. Wright of having
        significantly failing physical and mental health, in order to
        undermine her leadership of BioC and to trigger a provision in
        BioC’s operating agreement that could give him control of the
        company if Ms. Wright were incapacitated.


        f. He knowingly, intentionally, and deliberately concealed from
        BioC and from Ms. Wright that he, Ms. Eddy, and other BioC
        employees were conducting secret on-site and off-site meetings in
        hopes of building support for a plan to reorganize BioC and strip
        Ms. Wright of her BioC ownership, and her authority to lead
        BioC, in favor of Mr. Wright.


        g. He knowingly, intentionally, and deliberately concealed from
        Ms. Wright and from BioC secret communications among
        himself, Ms. Eddy, and BioC’s accounting firm that were
        material to the valuation of BioC and to alleged securities fraud
        claims.


        h. He knowingly, intentionally, and deliberately improperly
        forwarded and removed from BioC’s computer system numerous
        e-mail messages containing confidential and proprietary
        information, as well as trade secrets.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-2702 | December 18, 2019   Page 11 of 21
              i. He knowingly, intentionally, and deliberately improperly
              removed property from BioC upon his departure from the
              company.


      Appellant’s Appendix Vol. III at 77-79. Alisa and BioC asserted eight claims

      against Lance: Count I, Breaches of Fiduciary Duty; Count II, Breach of

      Contract; Count III, Tortious Interference with Business Relationship; Count

      IV, Misappropriation of Trade Secrets; Count V, Computer Tampering; Count

      VI, Conversion; Count VII, Criminal Mischief; and Count VIII, Defamation.


[9]   On January 15, 2018, Lance filed a Motion for Summary Judgment on the

      Amended Complaint. His motion asserted that res judicata – both claim

      preclusion and issue preclusion – barred Alisa’s and BioC’s claims, arguing that

      “the claims and issues in . . . the Amended Complaint all arise from the same

      acts of Lance’s alleged misconduct [that were] litigated in the Dissolution

      Proceeding.” Id. at 7. Lance argued that the dissolution court heard

      considerable testimony and evidence on Alisa’s dissipation claim related to

      Lance’s conduct and determined that BioC was not harmed, and thus their

      “attempt to relitigate the same issues and claims that were already adjudicated”

      was precluded by res judicata. Id. at 2. Lance urged that Alisa’s own appeal

      from the dissolution court’s decision illustrated his point – that the same claims

      she makes in her Amended Complaint had already been decided against her –

      because she argued in her appellant’s brief that Lance’s “obvious and heinous

      breaches of his fiduciary obligations resulted in dissipation of the marital estate,

      and specifically Alisa’s share of it” and that it was “unjust for Lance to


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2702 | December 18, 2019   Page 12 of 21
       improperly benefit from activities that undermined Alisa and BioC[.]” Id. at 6.

       Lance acknowledged that BioC was not a party in the dissolution proceeding,

       but maintained that BioC “is in privity with Alisa and its interests were

       involved and litigated in the Dissolution Proceeding” such that “BioC is also

       bound by such judgment.” Id. at 3.


[10]   Alisa and BioC filed their Plaintiffs’ Response in Opposition to Lance’s

       Motion, arguing, inter alia, that (1) the claims against Lance asserted in the

       Amended Complaint were choses in action, and the dissolution court made its

       intention clear that the parties’ choses in action were not part of the marital

       estate and that its dissolution decree should not bind non-parties; (2) res

       judicata was not applicable, as neither the claims nor the issues were expressly

       adjudicated in the prior dissolution proceeding, highlighting that the dissolution

       court did not determine any of the necessary elements of the causes of action,

       and, while it found that Lance did not dissipate marital assets, it did not

       determine whether Lance was liable for the claims as asserted in the Amended

       Complaint; and (3) as to Lance’s claim that Alisa was in privity with BioC,

       “Alisa was never in privity with BioC, as her interests were solely for her

       personal benefit (i.e., acquire a larger share of the marital estate) and were never

       aligned with BioC’s interest in the pending claims (i.e., obtain a monetary

       judgment), which could never have been achieved in the dissolution

       proceeding.” Id. at 177. Alisa and BioC also urged that material facts were in

       dispute and precluded summary judgment for Lance.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2702 | December 18, 2019   Page 13 of 21
[11]   Following a July 2018 hearing, the trial court issued an order on September 4,

       2018, denying Lance’s motion. It stated, in part:


               Generally, Lance argues that res judicata, under both issue
               preclusion and claim preclusion, bars Alisa from bringing this
               matter. Further, Lance argues BioC is barred from bringing this
               claim because it is a privy to Alisa.


               At issue is whether or not [the dissolution court]’s finding, that
               Lance did not dissipate the value of BioC, is sufficient to
               determine this separate action as a matter of law based on similar
               facts but under a different context.


               The Court finds that, although the issues were similar; the specific
               issues in play in this matter, as to both plaintiffs, could not have been
               fully determined by the dissolution Court.


               Accordingly, the Court finds that res judicata does not bar Alisa
               from bringing this matter.


               Further, even if BioC was privy to Alisa, for reasons stated above
               res judicata does not bar it from bringing this matter.


       Appellant’s Appendix Vol. II at 23 (emphasis added). The trial court certified its

       order for interlocutory appeal, and we accepted jurisdiction.


                                       Discussion & Decision
[12]   Snyder contends that the trial court should have granted Lance’s motion for

       summary judgment. When reviewing the entry or denial of summary judgment,

       our standard of review is the same as that of the trial court: summary judgment


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2702 | December 18, 2019   Page 14 of 21
       is appropriate only where there is no genuine issue of material fact and the

       moving party is entitled to judgment as a matter of law. Hilliard v. Jacobs, 957

       N.E.2d 1043, 1046 (Ind. Ct. App. 2011) (citing Ind. Trial Rule 56(C)), trans.

       denied, cert. denied 568 U.S. 998 (2012). The reviewing court construes all

       factual inferences in the non-moving party’s favor and resolves all doubts as to

       the existence of a material issue against the moving party. Einhorn v. Johnson,

       996 N.E.2d 823, 828 (Ind. Ct. App. 2013), trans. denied.


[13]   Snyder argues that Alisa and BioC are trying to re-assert “the same matters in

       new litigation in front of a different judge” by “assigning new names and labels

       to [the] claims” and that res judicata prevents them from doing so because the

       matter was fully adjudicated in the dissolution action. Appellant’s Brief at 5.

       “Res judicata, whether in the form of claim preclusion or issue preclusion (also

       called collateral estoppel), aims to prevent repetitious litigation of disputes that

       are essentially the same, by holding a prior final judgment binding against both

       the original parties and their privies.” Webb v. Yeager, 52 N.E.3d 30, 40 (Ind.

       Ct. App. 2016), trans. denied.


                                             a. Claim Preclusion

[14]   Snyder argues that Alisa and BioC’s “overarching allegation” in the Amended

       Complaint is that Lance, while acting as member, director, and/or officer of

       BioC, engaged in “deliberate and repeated willful mismanagement and

       misconduct, and he individually and deliberately directed and persuaded others

       to do the same by his use and deceit to conceal and deny the truth” and that the

       dissolution court already “rejected every single one of Alisa’s claims of
       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2702 | December 18, 2019   Page 15 of 21
       misconduct related to BioC” when it concluded “that Lance did not engage in

       dissipation of any BioC assets[.]” Appellant’s Brief at 12, 25, 30. Snyder urges

       that Plaintiffs cannot “relitigate what amounts to substantially the same claims

       that were litigated in the Dissolution Proceeding[.]” Id. at 25.


[15]   Claim preclusion bars 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. Thrasher, Buschmann, & Voelkel, P.C. v. Adpoint, Inc., 24 N.E.3d

       487, 494 (Ind. Ct. App. 2015); MicroVote Gen. Corp. v. Ind. Election Com’n, 924

       N.E.2d 184, 191 (Ind. Ct. App. 2010). Four requirements must be met for a

       claim to be prohibited under the doctrine of claim preclusion: (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. MicroVote, 924 N.E.2d at 191. Snyder

       maintains that all four of the claim preclusion requirements have been met. We

       disagree.


[16]   Even if there was considerable testimony and evidence presented to the

       dissolution court in support of Alisa’s contentions that Lance committed

       misconduct in various ways, we cannot say that the dissolution court addressed

       the material elements of the Amended Complaint’s legal claims or rendered

       judgment on the merits on each of them. For instance, it did not expressly

       determine if Lance breached a fiduciary duty, if an employment or

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2702 | December 18, 2019   Page 16 of 21
       confidentiality contract existed or if he breached it, whether he breached the

       operating agreement, whether BioC had certain business relationships with

       other companies or individuals and whether Lance interfered with those,

       whether he defamed Alisa, or whether he committed criminal mischief or

       computer tampering. Although Alisa raised similar allegations and presented

       evidence concerning aspects of Lance’s conduct at BioC – in the course of

       asserting that Lance dissipated assets – this fact does not preclude her or BioC

       from filing a lawsuit to recover a money judgment. An overlap in some

       evidence does not equate to a full adjudication on the merits. Furthermore, in

       their Amended Complaint, Alisa and BioC seek compensatory damages,

       punitive damages, and treble damages; none of these remedies were available to

       either of them in the dissolution proceeding.


[17]   As to the requirements of jurisdiction and privity, the record reflects that the

       dissolution court expressly stated in its order that it was not determining or

       affecting any non-party’s rights, other than as to discovery. In that same vein,

       in a dissolution discovery order, the court stated:


               When persons to whom one is not married, however, are
               believed to have committed legal wrongs, the court where one
               seeks to hold those others “accountable” is not a divorce court.
               This court in this case ‘has neither the authority nor responsibility
               to hold persons outside of this marriage “accountable” to either
               Ms. or Mr. Wright.


               Persons besides Mr. and Mrs. Wright, though not parties to this
               case, may be potential witnesses. This court’s jurisdiction to hold
               anyone “accountable,” other than Mr. and Mrs. Wright, is

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2702 | December 18, 2019   Page 17 of 21
               limited to the authority to compel non-parties to disclose
               information relevant to this divorce; to produce evidence they
               possess and to testify as to what they have seen or heard.


       Appellant’s Appendix Vol. III at 244 (emphases in original).


[18]   Here, we reject Snyder’s suggestion that Alisa was in privity with BioC and

       represented BioC’s interests. The term privity describes the relationship

       between persons who are parties to an action and those who are not parties to

       an action but whose interests in the action are such that they may nevertheless

       be bound by the judgment in that action. MicroVote, 924 N.E.2d at 196. “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.” Id. While Snyder

       maintains that Alisa controlled BioC and thus represented its interests, Alisa

       and BioC dispute that assertion, arguing that, at a minimum, a question of fact

       exists on the issue because, at the time of the dissolution proceedings, BioC was

       controlled by its four-member Board, whose chairperson was Kathy Jackson.

       Alisa and BioC point out that the Board authorized Jackson to intervene on

       BioC’s behalf for the protection of BioC’s confidential information, and there

       would have been no need for Jackson to intervene if Alisa was already

       representing or protecting BioC’s interests. BioC had no opportunity to litigate

       or conduct discovery in the dissolution action related to the claims presented in

       the Amended Complaint, and we conclude that Alisa was not in privity with

       BioC in the dissolution action.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2702 | December 18, 2019   Page 18 of 21
[19]   We find that the four prongs of claim preclusion were not met and, accordingly,

       the trial court properly denied Lance’s motion for summary judgment on this

       basis.


                                              b. Issue Preclusion

[20]   “The second branch of the principle of res judicata is issue preclusion, also

       known as collateral estoppel.” Freels v. Koches, 94 N.E.3d 339, 342 (Ind. Ct.

       App. 2018). In general, issue preclusion prohibits 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. Id. The doctrine applies even if

       the second adjudication is on a different claim. Id. However, issue preclusion

       does not extend to matters that were not expressly adjudicated and can be

       inferred only by argument. Id.


[21]   Where, as here, a defendant seeks to prevent a plaintiff from asserting a claim

       that the plaintiff has previously litigated and lost, the use has been termed

       “defensive” collateral estoppel. Thrasher, 24 N.E.3d at 494. There are three

       requirements for the doctrine of collateral estoppel to apply: (1) a final

       judgment on the merits in a court of competent jurisdiction; (2) identity of the

       issues; and (3) the party to be estopped was a party or the privity of a party in

       the prior action. Id. Two additional considerations are relevant in deciding

       whether collateral estoppel is appropriate: whether the party against whom the

       prior judgment is asserted had a full and fair opportunity to litigate the issue

       and whether it would be otherwise unfair under the circumstances to permit the


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2702 | December 18, 2019   Page 19 of 21
       use of issue preclusion. Sims v. Scopelitis, 797 N.E.2d 348, 351 (Ind. Ct. App.

       2003), trans. denied.


[22]   Snyder argues that issue preclusion applies to bar Alisa and BioC’s current

       claims because “[t]he ‘issue’ of whether Lance’s (alleged) misconduct caused

       Alisa or BioC harm is identical in both this lawsuit and the dissolution

       proceeding[,]” and the dissolution court “expressly resolved that very issue

       against Alisa/BioC.” Appellant’s Brief at 42.


[23]   While Snyder suggests that the already-decided issue was whether Alisa or

       BioC were harmed by Lance’s conduct, we find that description frames the

       issue too broadly. Alisa alleged and sought to prove that Lance dissipated

       marital assets and to a degree that the presumptive equal division was rebutted.

       The dissolution court did not determine whether, under the various legal claims

       now advanced in the Amended Complaint, Lance caused any damage or was

       liable to Alisa and BioC for damages, and if so, in what amount. That is, while

       the dissolution court determined that Lance’s conduct did not constitute

       dissipation, i.e., the marital estate was not harmed to an extent that the equal

       division had been rebutted, it did not determine whether Lance was legally

       liable to Alisa to any degree for his actions. Moreover, as stated, BioC was not

       a party to the prior action nor did Alisa represent BioC’s full interests, and BioC

       did not have a full and fair opportunity to litigate the claims it now makes.

       Issue preclusion does not bar either Alisa or BioC from proceeding on their

       Amended Complaint.



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2702 | December 18, 2019   Page 20 of 21
[24]   Accordingly, we find that the trial court properly denied Lance’s motion for

       summary judgment. 5


[25]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       5
         Alisa and BioC maintain that Lance’s summary judgment motion was properly denied, not only because
       the requirements of claim preclusion and issue preclusion were not met, but also pursuant to McNevin v.
       McNevin, 447 N.E.2d 611 (Ind. Ct. App. 1983), where a former wife (Nancy) brought a personal injury claim
       against her former husband (Robert) to recover damages for Robert’s alleged assault on Nancy prior to
       dissolution. The trial court dismissed Nancy’s complaint for personal injuries finding that her tort claim was
       or should have been considered in the property settlement. On appeal, this court reversed, and in so doing
       found that Nancy’s personal injury claim was a chose in action that “fails to qualify as marital property
       because it was not susceptible to division at the time of dissolution” as “any attempt at valuation would be
       based on pure speculation[.]” Id. at 616, 618. Alisa and BioC urge that McNevin is dispositive to the present
       situation and establishes that Alisa’s current claims are choses in action and were not part of the marital
       estate (and not now barred by res judicata); Snyder argues that McNevin is inapplicable and distinguishable
       because, in that case, the parties submitted a settlement agreement in the dissolution and had not already
       fully litigated matters, as he claims occurred in the present case. Because we find that summary judgment
       was properly denied because Snyder failed to satisfy the necessary requirements of res judicata, we do not
       reach the parties’ McNevin arguments.



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2702 | December 18, 2019                Page 21 of 21
