MEMORANDUM DECISION
                                                                            Aug 04 2015, 8:06 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                           ATTORNEY FOR APPELLEES
Brenda J. Marcus                                                 Philip F. Cuevas
Merrillville, Indiana                                            Litchfield Cavo LLP
                                                                 Chicago, Illinois



                                                IN THE
     COURT OF APPEALS OF INDIANA

Sharla C. Williams,                                              August 4, 2015

Appellant- Petitioner,                                           Court of Appeals Cause No.
                                                                 45A03-1406-CT-202
         v.
                                                                 Appeal from the Lake Superior
TradeWinds Services, Inc., Board                                 Court
                                                                 The Honorable William E. Davis,
of Directors of TradeWinds                                       Judge
Services, Inc., Jon Gold in his                                  Cause No. 45D05-1308-CT-152
individual capacity and official
capacity,
Appellees-Respondents,




Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision on Rehearing 45A03-1406-CT-202 | August 4, 2015   Page 1 of 10
                                    Case Summary and Issue
[1]   Sharla Williams has petitioned for rehearing of this court’s memorandum

      decision in Williams v. TradeWinds Servs., Inc., No. 45A03-1406-CT-202 (Ind. Ct.

      App., June 10, 2015). In that decision, we dismissed Williams’s appeal after

      concluding that an untimely motion to correct error forfeited her right to appeal

      under Indiana Appellate Rule 9(A)(1). Williams’s motion to correct error,

      which was filed on March 24, 2014, was filed more than thirty days after the

      trial court’s final judgment order, which was dated February 11, 2014.

      However, Williams points out that the final judgment was not entered into the

      Chronological Case Summary (“CCS”) until nearly two weeks later on

      February 24, 2014.1 Under Indiana Appellate Rule 9(A)(1), it is the date of

      entry in the CCS that determines whether Williams’s motion was timely.

      Consequently, we agree that Williams’s motion to correct error was indeed

      timely and that her right to appeal was not forfeited. We therefore grant

      Williams’s petition for rehearing and address her claims on the merits.


[2]   Williams appeals the trial court’s order granting summary judgment—and

      eventual entry of final judgment—on a number of her claims against

      TradeWinds Services, Inc., the TradeWinds Board of Directors, and Jon Gold

      (collectively, “TradeWinds”). Williams also appeals two interlocutory orders,




      1
        We note that the Statement of the Case provided in Williams’s initial Appellant’s Brief states the operative
      date of the trial court’s final judgment order as “February 11, 2014,” and Williams made no mention of a
      later CCS entry on February 24, 2014. See Appellant’s Brief at 4.

      Court of Appeals of Indiana | Memorandum Decision on Rehearing 45A03-1406-CT-202 | August 4, 2015   Page 2 of 10
      which were a denial of her motion to file an amended complaint, and a denial

      of her motion for preservation of evidence. Williams raises the following issues

      for our review: (1) whether the trial court erred by treating TradeWinds’s

      motion to dismiss as a motion for summary judgment after the parties

      submitted materials outside of the pleadings; (2) whether the trial court erred by

      directing the entry of final judgment on several of Williams’s claims; (3)

      whether the trial court abused its discretion by denying Williams’s motion to

      amend her complaint; and (4) whether the trial court abused its discretion by

      denying Williams’s motion for an order to preserve evidence. Concluding

      Williams has failed to demonstrate that the trial court erred, we affirm.



                               Facts and Procedural History
[3]   We recounted the following facts and procedural history in our previous

      opinion:

               Williams began working for TradeWinds in 1999. In the fall of 2009,
               TradeWinds became suspicious that Williams had improperly taken
               money from a customer account and initiated an investigation of the
               matter. In November 2009, Williams resigned from TradeWinds.
               In March 2010, Williams was criminally charged with theft and
               exploitation of a dependent, both Class D felonies. However, those
               charges were later dismissed. Also in 2010, Williams filed an action
               against TradeWinds in the United States District Court for the
               Northern District of Indiana. A third amended complaint was filed in
               that action, which alleged federal claims of race discrimination and sex
               discrimination, in addition to a number of state law claims. On March
               4, 2013, the district court dismissed Williams’s federal claims and
               declined to retain jurisdiction over her state law claims.



      Court of Appeals of Indiana | Memorandum Decision on Rehearing 45A03-1406-CT-202 | August 4, 2015   Page 3 of 10
         On April 2, 2013, Williams commenced this action. Her complaint
         consisted of eleven counts: (1) wrongful discharge; (2) intentional
         interference with employment; (3) intentional infliction of emotional
         distress; (4) negligence; (5) defamation; (6) defamation per se; (7)
         intentional fraudulent misrepresentation; (8) false imprisonment; (9)
         malicious prosecution; (10) malicious prosecution; and (11) breach of
         duty. On May 20, 2013, TradeWinds filed a motion to dismiss
         Williams’s complaint. On July 8, 2013, Williams filed both a motion
         to amend her complaint and a memorandum in opposition to
         TradeWinds’s motion to dismiss. On August 8, 2013, Williams filed
         an amended memorandum in opposition of TradeWinds’s motion to
         dismiss. In arguing the issues raised in TradeWinds’s motion to
         dismiss, both parties submitted, referenced, and relied upon additional
         exhibits outside the pleadings. On October 15, 2013, the trial court
         issued an order on TradeWinds’s motion to dismiss; the trial court
         noted that the motion was treated as one for summary judgment
         because facts outside of the pleadings were presented for the trial
         court’s consideration. The trial court granted summary judgment to
         TradeWinds on Counts 1, 2, 3, 4, 7, and 11. On the same day, the
         trial court also issued an order denying Williams’s motion to amend
         her complaint, stating that she failed to submit a proposed amended
         complaint for the trial court’s review.
         On November 22, 2013, the trial court denied a motion filed by
         Williams seeking a court order for TradeWinds to preserve certain
         documents that Williams believed were relevant for discovery
         purposes. The Court denied Williams’s motion because Williams did
         not previously seek to have the documents produced through
         discovery.
         On December 9, 2013, TradeWinds filed a motion requesting that the
         trial court enter final judgment on the Counts for which the trial court
         granted summary judgment. On February 11, 2014, the trial court
         granted TradeWinds’s motion and entered final judgment pursuant to
         Indiana Trial Rules 54(B) and 58. On March 24, 2014, Williams filed
         a motion to correct error, which the trial court denied on May 9, 2014.
Williams, slip op. at 2-4. Additionally, on April 11, 2014, Williams filed

another motion to amend her complaint, seeking to reassert the same claims on



Court of Appeals of Indiana | Memorandum Decision on Rehearing 45A03-1406-CT-202 | August 4, 2015   Page 4 of 10
      which the trial court entered final judgment. On June 5, 2014, the trial court

      denied her motion to amend.



                                    Discussion and Decision
          I. Motion to Dismiss Treated as Summary Judgment
[4]   First, Williams challenges the trial court’s decision to treat TradeWinds’s

      motion to dismiss as a motion for summary judgment. Specifically, Williams

      contends she was not provided with adequate notice that the motion would be

      treated as one for summary judgment.


[5]   Regarding the treatment of a motion to dismiss as one for summary judgment,

      Indiana Trial Rule 12(B) provides in pertinent part:

               If, [on a motion under Indiana Trial Rule 12(B)(6)], matters outside
               the pleading are presented to and not excluded by the court, the
               motion shall be treated as one for summary judgment and disposed of
               as provided in Rule 56. In such case, all parties shall be given
               reasonable opportunity to present all material made pertinent to such a
               motion by Rule 56.
      “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.” Azhar v. Town of Fishers, 744 N.E.2d 947, 950 (Ind. Ct.

      App. 2001) (citing Ayres v. Indian Heights Volunteer Fire Dep’t, 493 N.E.2d 1229,

      1233 (Ind. 1986)).




      Court of Appeals of Indiana | Memorandum Decision on Rehearing 45A03-1406-CT-202 | August 4, 2015   Page 5 of 10
[6]   Here, both TradeWinds and Williams submitted materials outside the pleadings

      and referenced those materials in their briefing on TradeWinds’s motion to

      dismiss. Consequently, Williams was fully aware that the trial court was

      considering materials outside the pleadings and was required by Trial Rule

      12(B) to treat TradeWinds’s motion as one for summary judgment. Therefore,

      the trial court did not commit reversible error.2


                                  II. Entry of Final Judgment
[7]   Second, Williams challenges the trial court’s decision to enter final judgment on

      several claims pursuant to Trial Rule 54(B), which provides that the trial court

      “may direct the entry of a final judgment as to one or more but fewer than all of

      the claims or parties only upon an express determination that there is no just

      reason for delay and upon an express direction for the entry of judgment.”

      However, Williams’s argument on this point is restricted to a single sentence

      alleging that TradeWinds requested entry of final judgment “to cut off the

      plaintiff’s right to amend her complaint.” Appellant’s Brief at 18. Williams

      offers no support for her allegation of bad faith, nor does she provide any

      relevant legal analysis. Indiana Appellate Rule 46(A)(8) requires a party’s brief

      to support her contentions with cogent reasoning and citation to the record and

      relevant legal authorities. Failure to comply with the requirements of the




      2
        Williams also argues on appeal that the trial court erred by denying her motion to correct error, restating
      her claim that the trial court improperly ruled upon TradeWinds’s motion to dismiss as a motion for
      summary judgment. For the same reason that the trial court’s conversion of TradeWinds’s motion was not
      error, the trial court likewise did not commit error by denying Williams’s motion to correct error.

      Court of Appeals of Indiana | Memorandum Decision on Rehearing 45A03-1406-CT-202 | August 4, 2015   Page 6 of 10
      appellate rule results in forfeiture of an argument on appeal. Reed v. Reid, 980

      N.E.2d 277, 296-97 (Ind. 2012). Williams has failed to properly develop her

      challenge to the trial court’s entry of final judgment, and thus the issue is

      forfeited.


                  III. Williams’s Motion to Amend Complaint
[8]   Next, Williams contends the trial court abused its discretion by denying her

      requests to amend her complaint. “The trial court has broad discretion when

      deciding whether to permit amendments to pleadings.” Templin v. Fobes, 617

      N.E.2d 541, 543 (Ind. 1993). An abuse of discretion occurs when the trial

      court’s decision is clearly against the logic and effect of the facts and

      circumstances. Id. We consider several factors in determining whether a trial

      court’s decision on a motion to amend is an abuse of discretion, including

      “undue delay, bad faith, or dilatory motive on the part of the movant, repeated

      failure to cure deficiency by amendment previously allowed, undue prejudice to

      the opposing party by virtue of the amendment, and futility of the amendment.”

      Hilliard v. Jacobs, 927 N.E.2d 393, 398 (Ind. Ct. App. 2010) (citation omitted),

      trans. denied.


[9]   Frankly, Williams’s briefing on this issue is quite confusing, and it is not clear

      on what basis she argues an amendment to her complaint should have been




      Court of Appeals of Indiana | Memorandum Decision on Rehearing 45A03-1406-CT-202 | August 4, 2015   Page 7 of 10
       granted.3 At the outset, we observe that Williams did not have a right to amend

       her complaint under Trial Rule 12(B), which provides that a “pleading may be

       amended once as of right pursuant to Rule 15(A) within ten [10] days after

       service of notice of the court’s order [of dismissal pursuant to Rule 12(B)(6).]”

       Because TradeWinds’s motion to dismiss was properly treated as a motion for

       summary judgment, Williams was not entitled to amend her complaint as a

       matter of right. See Robbins v. Canterbury School, Inc., 811 N.E.2d 957, 960 (Ind.

       Ct. App. 2004).


[10]   As to Williams’s first attempt to amend her complaint, the trial court denied

       that request after noting that Williams failed to include a proposed amended

       complaint with her motion. At that point, the trial court had no reason to

       believe that allowing Williams to amend her complaint would have an effect on

       the validity of her claims. Thus, we cannot conclude that the trial court’s denial

       of that motion was an abuse of discretion.


[11]   Williams’s second motion to amend her complaint did not come until a full two

       months after the trial court entered final judgment on the claims she sought to

       amend. This court has previously said that after final judgment has been

       entered on a claim, “there is nothing left to amend.” Leeper Elec. Servs., Inc. v.




       3
         Williams’s reply brief contains a section dubbed “Plaintiff is Entitled to Amendment of Her Complaint.”
       Appellant’s Reply Br. at 3. But despite spanning a full thirteen pages of the brief, that section fails to include
       a single sentence seemingly relevant to her motion to amend her complaint; instead, the section is a tirade of
       incoherent accusations that TradeWinds has acted outrageously and engaged in vexatious litigation. Id. at 3-
       16.

       Court of Appeals of Indiana | Memorandum Decision on Rehearing 45A03-1406-CT-202 | August 4, 2015      Page 8 of 10
       City of Carmel, 847 N.E.2d 227, 231 (Ind. Ct. App. 2006), trans. denied.

       Additionally, Williams had four months after the entry of summary judgment

       during which time she could have filed a motion to amend her complaint prior

       to final judgment, but she did not. And even if the entry of final judgment did

       not preclude amendment of Williams’s complaint, she has failed to carry her

       burden on appeal that justice would require amendment and that the

       amendment would not be futile. See Ind. Trial Rule 15(A); Hilliard, 927 N.E.2d

       at 398. We conclude the trial court did not abuse its discretion by denying

       Williams’s motion to amend her complaint.


                               IV. Motion to Preserve Evidence
[12]   Finally, Williams argues the trial court erred by denying her motion for an

       order to preserve evidence. The trial court denied her motion due to her failure

       to previously seek production of the documents and to fulfill the requirements

       set forth in Indiana Trial Rule 26(F).


[13]   To the extent that Williams’s motion is related to the preservation of evidence

       relevant to those counts on which the trial court entered final judgment, the

       issue is moot because we have concluded the trial court did not abuse its

       discretion by entering final judgment on those counts in favor of TradeWinds.

       On the other hand, insofar as the motion relates to the preservation of evidence

       relevant to Williams’s remaining claims, the trial court’s decision is an

       interlocutory order over which this court does not presently have jurisdiction.

       See Ind. Appellate Rule 5 and 14.


       Court of Appeals of Indiana | Memorandum Decision on Rehearing 45A03-1406-CT-202 | August 4, 2015   Page 9 of 10
                                                    Conclusion
[14]   We conclude the trial court did not err by treating TradeWinds’s motion to

       dismiss as a motion for summary judgment; entering final judgment on several

       of Williams’s claims; denying Williams’s motion to amend her complaint; or

       denying Williams’s motion for an order to preserve evidence. Therefore, we

       grant Williams’s petition for rehearing and affirm the trial court’s decision.


[15]   Affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision on Rehearing 45A03-1406-CT-202 | August 4, 2015   Page 10 of 10
