MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Apr 25 2019, 9:03 am

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


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Edward L. Murphy, Jr.                                     WRECKS, INC.
Lauren R. Deitrich                                        Thomas F. O’Gara
ROTHBERG LOGAN & WARSCO LLP                               James R. A. Dawson
Fort Wayne, Indiana                                       TAFT STETTINIUS & HOLLISTER LLP
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Amy D. Martin,                                            April 25, 2019
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          18A-CT-2722
        v.                                                Appeal from the Boone Circuit
                                                          Court
Lawrence A. Maurer, et al.,                               The Honorable J. Jeffrey Edens,
Appellees-Defendants.                                     Judge
                                                          Trial Court Cause No.
                                                          06C01-1711-CT-1414



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CT-2722 | April 25, 2019                   Page 1 of 8
                                               Case Summary
[1]   Amy D. Martin (“Martin”) filed a declaratory action naming as defendants her

      ex-husband Lawrence A. Maurer (“Maurer”)1 and Wrecks, Inc. (“Wrecks”).

      Wrecks moved to dismiss, asserting—inter alia—dismissal was proper under

      Trial Rule 12(B)(8) because the same action was pending in a different court.

      The trial court dismissed the action, citing Rule 12(B)(8) and other grounds.

      Martin filed a motion to reconsider and a motion to correct error, which were

      denied. Martin now appeals, challenging dismissal of the action and alleging

      invited error. Concluding that dismissal was proper under Trial Rule 12(B)(8)

      irrespective of any alleged invited error, we affirm the trial court in all respects.



                                Facts and Procedural History
[2]   Martin and Maurer dissolved their marriage in 2010 pursuant to a settlement

      agreement in which Maurer represented and warranted having a 20% interest in

      “real estate and other assets related to” Wrecks. Appellant’s App. Vol. 2 at 60.

      The settlement agreement—incorporated into a dissolution decree entered in

      Hamilton County—specified that Martin would receive 55% “of the net

      proceeds of sale and/or any asset distribution and/or any other form of

      distribution of value” from Maurer’s represented 20% interest in Wrecks. Id.




      1
          Maurer did not appear in this action and does not actively participate on appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2722 | April 25, 2019          Page 2 of 8
[3]   In early 2015, Martin filed a motion for proceedings supplemental in the

      Hamilton Circuit Court. Martin named Wrecks as a garnishee defendant and

      alleged that Wrecks recently sold real estate, refused to pay Martin any portion

      of the proceeds, and had denied that Maurer had any interest in the proceeds.

      Martin alleged that “Wrecks should be summoned to answer regarding any

      property of [Maurer’s] in its possession.” Id. at 72. Wrecks filed a responsive

      pleading in which it denied Maurer had any interest in Wrecks or its assets.

      Thereafter, Martin petitioned to set aside the dissolution decree, alleging that

      Maurer fraudulently misrepresented his interest in assets pertaining to Wrecks.


[4]   At some point, Wrecks moved to bifurcate the fraud claim and the garnishment

      claim, seeking a stay of action against Wrecks until a ruling on the petition to

      set aside the decree. In March 2016, the Hamilton Circuit Court bifurcated the

      claims and ordered a stay of further proceedings against Wrecks as a party. In

      its bifurcation order, the court reasoned that “if Martin is successful in having

      the Divorce Decree set aside for fraud, then no judgment potentially involving

      Maurer’s purported interest in Wrecks would exist, and there would no longer

      be a basis for Wrecks to be included as a garnishee defendant.” Id. at 126-27.


[5]   In November 2017—during the stay concerning Wrecks in Hamilton County—

      Martin filed the instant Boone County action against Wrecks and Maurer. In

      her Complaint for Declaratory Judgment, Martin referred to the dissolution

      decree and asserted that “[a]n actual controversy exists as to whether Maurer

      holds a 20% interest in the proceeds of real estate sold by Wrecks.” Id. at 25.

      Martin noted the pending Hamilton County action but alleged that Wrecks—in

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2722 | April 25, 2019   Page 3 of 8
      moving to bifurcate claims—“argued that . . . proceedings supplemental was

      not the proper forum for the claim asserted by Martin” and that the matter

      should be dealt with in a separate action between Maurer and Wrecks. Id. at

      26. Martin sought “a declaratory judgment determining that Maurer has an

      enforceable interest in the proceeds of real estate sold by Wrecks which would

      be subject to the Property Settlement Order in the Dissolution Action.” Id.


[6]   In January 2018, Wrecks filed a motion to dismiss the Boone County action,

      alleging—inter alia—dismissal was proper under Trial Rule 12(B)(8). A few

      months later, during the pendency of Wrecks’s motion to dismiss the Boone

      County action, Martin filed a motion in the Hamilton Circuit Court, requesting

      a lift of any stay so that Martin could withdraw her claim against only Wrecks.

      The Hamilton Circuit Court denied this motion in April 2018.


[7]   On June 28, 2018, the Boone Circuit Court granted Wrecks’s motion to dismiss

      the declaratory action. A few days later, on July 3, 2018, the Hamilton Circuit

      Court reconsidered its refusal to lift the stay and granted Martin’s motion to

      withdraw the claim against Wrecks, dismissing that claim without prejudice. In

      light of this development, Martin moved the Boone Circuit Court to reconsider

      its dismissal or, in the alternative, correct error. These motions were denied.


[8]   Martin now appeals.




      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2722 | April 25, 2019   Page 4 of 8
                                   Discussion and Decision
[9]    Indiana Trial Rule 12(B)(8) permits dismissal of an action where “[t]he same

       action [is] pending in another state court of this state.” This rule “applies where

       the parties, subject matter, and remedies are precisely the same, and it also

       applies when they are only substantially the same.” Beatty v. Liberty Mut. Ins.

       Grp., 893 N.E.2d 1079, 1084 (Ind. Ct. App. 2008). Whether two actions are the

       same under the rule “depends on whether the outcome of one action will affect

       the adjudication of the other.” Kentner v. Ind. Pub. Employers’ Plan, Inc., 852

       N.E.2d 565, 570 (Ind. Ct. App. 2006) (quoting Vannatta v. Chandler, 810 N.E.2d

       1108, 1110 (Ind. Ct. App. 2004)), trans. denied. “[I]nasmuch as it is a question

       of law,” we apply a de novo standard of review to the grant or denial of a motion

       to dismiss under Trial Rule 12(B)(8).2 Id.


[10]   At the time the Boone Circuit Court granted the motion to dismiss under Rule

       12(B)(8), there was a pending action in the Hamilton Circuit Court involving

       the same parties: Martin, Maurer, and Wrecks. After the stay ordered in the

       Hamilton County case, the litigation would initially concern whether to set

       aside the decree because of a fraudulent misrepresentation that Maurer had an

       interest in certain assets of Wrecks. Relatedly, the Boone County case was




       2
         Thus, to the extent Martin notes that the Hamilton Circuit Court characterized the matters as “separate and
       independent,” Br. of Appellant at 19, we owe no deference to that determination. Further, to the extent
       Martin suggests Wrecks relies on matters outside the record, we have constrained our review to the record.



       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2722 | April 25, 2019                    Page 5 of 8
       designed to answer whether Maurer made a misrepresentation at all, as Martin

       sought a declaratory judgment “that Maurer has an interest in the proceeds of

       the sale of real estate by Wrecks which is therefore subject to the Property

       Settlement Order in the Dissolution Action.” Appellant’s App. Vol. 2 at 26.


[11]   In arguing that the matters are not substantially the same and that the Boone

       Circuit Court erred in dismissing the action, Martin focuses on language in the

       July 2018 order of the Hamilton Circuit Court—entered subsequent to the Trial

       Rule 12(B)(8) dismissal. In that order, the Hamilton Circuit Court determined

       that the declaratory action “is a separate and independent claim from the

       dissolution of marriage action” pending before it. Appellant’s App. Vol. 3 at 7.

       Martin suggests, without citation, that the Boone Circuit Court erred by failing

       to “explain that conflict,” Br. of Appellant at 17, or otherwise “interpret the

       Hamilton Circuit Court Order” when ruling on Martin’s motions, id. at 18. We

       disagree, however, because events subsequent to an order do not render that

       order erroneous. See Styck v. Karnes, 462 N.E.2d 1327, 1331 (Ind. Ct. App.

       1984) (noting that events subsequent to trial did not constitute newly discovered

       evidence and that “[t]he proper method . . . to enlighten the trial court is

       through T.R. 60(B) which specifically provides [for] relief from a judgment”). 3




       3
         Martin briefly argues that the Boone Circuit Court erred in paragraph 29 of its written order concerning the
       motion to reconsider. Therein, the Boone Circuit Court determined that the motion had been “deemed
       denied” under Trial Rule 53.4(A). Appellant’s App. Vol. 2 at 20. Martin argues that the court incorrectly
       applied the rule. Yet, this argument is unavailing because the court nevertheless “in the alternative denie[d]
       the Motion to Reconsider.” Id.; see Ind. App. R. 66(A) (“No error or effect in any ruling or order or in

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2722 | April 25, 2019                     Page 6 of 8
[12]   Martin also argues that the practical effect of contradictory rulings in Boone

       County and Hamilton County is to “deprive [her] of a court to hear her claim

       against Wrecks.” Br. of Appellant at 17. Yet, when the Hamilton Circuit

       Court dismissed Wrecks as a party, it did so without prejudice. Martin further

       asserts that “[i]n view of the Boone Circuit Court Order, [Martin] is without a

       court to determine [Maurer’s] interest, if any, in Wrecks.” Id. at 19. Yet, in the

       proceedings supplemental against Maurer, Martin and Maurer could litigate

       whether Maurer has an interest in Wrecks.


[13]   We conclude that the matters were substantially the same. Although framed

       differently, the predicate for both matters was Martin’s purported interest—

       conferred by dissolution decree—in any assets distributed to Maurer from his

       represented interest in Wrecks.4 Further, factual determinations in the Boone

       County case would bear on an issue central to the Hamilton County case:

       whether there was a misrepresentation. Because the actions were substantially

       the same, dismissal was proper under Trial Rule 12(B)(8). Moreover, even after

       the Hamilton Circuit Court dismissed Wrecks as a party, dismissal remained

       proper because the outcome of the Boone County case would affect the




       anything done or omitted by the trial court . . . is ground for granting relief or reversal on appeal where its
       probable impact . . . is sufficiently minor so as not to affect the substantial rights of the parties.”).
       4
         Martin characterizes the scope of the Boone County action as potentially encompassing “improper actions”
       on the part of Wrecks: “If it is shown by the evidence that Wrecks also knew of the provisions of the Property
       Settlement Agreement, and endeavored to circumvent that agreement by compensating [Maurer] in other
       manners, Wrecks would have liability for those improper actions.” Br. of Appellant at 19-20. Martin asserts
       that she “is attempting to establish” that wrongdoing, Reply Br. at 7, and that she “is entitled to have that
       claim heard,” Br. of Appellant at 20. Yet, Martin did not allege tortious conduct in her Complaint for
       Declaratory Judgment. Rather, Martin sought a declaratory judgment regarding an interest in Wrecks.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2722 | April 25, 2019                         Page 7 of 8
       adjudication of the other case—and potentially lead to incompatible results. See

       Kentner, 852 N.E.2d at 570. That is, one court could determine that Maurer

       lacked any interest in Wrecks while the other court could determine that

       Maurer possessed the represented interest.


[14]   Martin argues Wrecks invited any procedural irregularity in its arguments to the

       Hamilton Circuit Court when seeking bifurcation. Thus, according to Martin,

       Wrecks cannot avail itself of a Rule 12(B)(8) defense. Yet, Trial Rule 12(B)(8)

       implements principles underlying a sound judiciary, including “comity between

       and among the courts of this state . . . and judicial efficiency.” Thacker v.

       Bartlett, 785 N.E.2d 621, 625 (Ind. Ct. App. 2003). In light of these principles,

       even if Wrecks had invited a separate proceeding, we conclude that the Boone

       Circuit Court did not commit err in granting the timely Rule 12(B)(8) motion.5


[15]   Affirmed.


       Riley, J., and Pyle, J., concur.




       5
           Having reached this conclusion, we need not address arguments concerning other grounds for dismissal.


       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2722 | April 25, 2019                   Page 8 of 8
