MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any
                                                                             Sep 14 2018, 9:19 am
court except for the purpose of establishing
the defense of res judicata, collateral                                           CLERK
                                                                              Indiana Supreme Court
estoppel, or the law of the case.                                                Court of Appeals
                                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEY FOR APPELLEE
Daniel W. Sherman                                           LAKES OF THE FOUR SEASONS
Valparaiso, Indiana                                         PROPERTY OWNERS
                                                            ASSOCIATION, INC.
                                                            Brian E. Less
                                                            Law Office of Brian E. Less, PC
                                                            St. John, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

Tricia Dennis,                                              September 14, 2018
Appellant-Plaintiff,                                        Court of Appeals Case No.
                                                            18A-CT-425
        v.                                                  Appeal from the Porter Superior
                                                            Court
R&M Construction, Inc. and the                              The Honorable Roger V. Bradford,
Lakes of the Four Seasons                                   Judge
Property Owners Association,                                Trial Court Cause No.
Inc.,1                                                      64D01-1408-CT-7036
Appellees-Defendants.




1
  While counsel for R&M Construction, Inc. filed an appearance, he did not file an appellate brief or
otherwise participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-425 | September 14, 2018                     Page 1 of 7
      Bradford, Judge.



                                              Case Summary
[1]   Tricia Dennis owns a home in the Lakes of the Four Seasons subdivision.

      Dennis claims to have experienced drainage issues after R&M Construction

      (“R&M”) started construction on the lot adjacent to Dennis’s property. Dennis

      filed suit against R&M, the Lakes of the Four Seasons Property Owners

      Association, Inc. (the “Association”), and a number of other parties. 2 The

      Association was dismissed from the lawsuit after the trial court found that it did

      not owe a duty to Dennis. On April 12, 2016, Dennis requested permission to

      file a second amended complaint in which she sought to amend her claims

      against the Association and bring the Association back into the lawsuit. The

      Association objected, arguing that it would suffer undue prejudice if Dennis

      were granted the requested relief. Following a hearing, the trial court denied

      Dennis’s request. Dennis argues on appeal that the trial court abused its

      discretion in doing so. Concluding otherwise, we affirm.



                               Facts and Procedural History
[2]   On August 13, 2014, Dennis filed suit against the Association asserting

      negligence and breach of contract claims. The Association filed a motion to




      2
          The other parties have been dismissed from the lawsuit.


      Court of Appeals of Indiana | Memorandum Decision 18A-CT-425 | September 14, 2018   Page 2 of 7
      dismiss on August 27, 2014, arguing that (1) it did not owe Dennis a duty and

      (2) Dennis failed to include the restrictive covenants relied on in her breach of

      contract claim. Dennis responded on September 2, 2014, by filing her first

      amended complaint to which she attached an unverified copy of the restrictive

      covenants. The Association renewed its motion to dismiss on September 19,

      2014.


[3]   On October 27, 2015, the trial court conducted a hearing on the Association’s

      motion. At the conclusion of this hearing, the trial court dismissed the claims

      levied against the Association, stating the following:


              The Court has not found any place in the portions of the
              covenants that have been submitted where there’s any obligation
              on the part of the [Association] to enforce those covenants; they
              have the power, they may, there’s no absolute duty and there’s
              no duty under contract, there’s no duty on negligence. So I’ll
              grant the motion to dismiss and the Defendant, [the Association],
              will be dismissed from this case.


      Tr. p. 12. Dennis’s motion to correct error was denied on December 16, 2015.

      She did not appeal either the dismissal of her claims against the Association or

      the denial of her motion to correct error.


[4]   On April 12, 2016, Dennis filed a motion requesting permission to file a second

      amended complaint. Specifically, she sought to amend her claims against the

      Association and to bring the Association back into the lawsuit. Dennis relied

      on two pieces of allegedly newly-discovered evidence in support. The first piece

      included instructions given by the Association to the contractors building new

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-425 | September 14, 2018   Page 3 of 7
      homes on property falling inside the Association’s physical parameters. The

      instruction highlighted by Dennis reads as follows:


              Existing topography of the building lot is to be maintained as
              nearly as possible. Finished ground elevation of the sides and
              rear of the lot must meet the level of the adjacent lots not less
              than two (2) feet within the lot boundaries. The Building Control
              Committee shall not approve any plans, which adversely affect
              the drainage form said lot to the adjacent land.


      Appellant’s App. Vol. IV, p. 21. The second piece included a statement

      attributed to one of the Association’s directors during an October 7, 2013

      executive meeting of the Association indicating that the building plan for the

      home built adjacent to her home should not have been permitted through

      building control. Dennis asserted that these pieces of evidence bolstered her

      claim that the Association owed her a duty.


[5]   For reasons unclear in the record, the trial court did not conduct a hearing or

      rule on Dennis’s motion. On July 18, 2017, Dennis asked the trial court to set a

      hearing on her April 12, 2016 motion. The Association filed an objection to

      Dennis’s April 12, 2016 motion on August 1, 2017. The trial court conducted a

      hearing on December 7, 2017, after which it denied Dennis’s request for

      permission to file a second amended complaint.



                                 Discussion and Decision
[6]   At the outset, we note that to the extent that Dennis’s appellate arguments can

      be interpreted as a challenge to the propriety of the trial court’s October 27,

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-425 | September 14, 2018   Page 4 of 7
      2015 dismissal of the Association from the underlying action, such a challenge

      is untimely. We will therefore limit our review to whether the trial court

      abused its discretion in denying Dennis’s request for permission to file a second

      amended complaint.


[7]   Dennis contends that the trial court abused its discretion in denying her April

      12, 2016 motion. Trial Rule 15(A) allows a party to amend her pleading one

      time as a matter of course if the request is filed within a certain time frame.

      After that, a party may amend her pleading “only by leave of court or by

      written consent of the adverse party; and leave shall be given when justice so

      requires.” Ind. R. Trial P. 15(A).


              Although amendments to pleadings are to be liberally allowed,
              the trial court retains broad discretion in granting or denying
              amendments to pleadings. We will reverse only upon a showing
              of an abuse of that discretion. An abuse of discretion may occur
              if the trial court’s decision is clearly against the logic and effect of
              the facts and circumstances before the court, or if the court has
              misinterpreted the law. We consider whether a trial court’s
              ruling on a motion to amend is an abuse of discretion by
              evaluating a number of factors, 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) (internal citations

      and quotation omitted).




      Court of Appeals of Indiana | Memorandum Decision 18A-CT-425 | September 14, 2018   Page 5 of 7
[8]    Dennis did not change her theory of recovery or add an additional theory of

       recovery in the proffered second amended complaint. She merely argues that

       allegedly newly-discovered evidence, i.e., the building instructions and the

       statement during the October 7, 2013 executive meeting, bolsters her claim that

       the Association owed her a duty.


[9]    It has long been “a familiar rule of practice, as applicable to all classes of cases,

       that a new trial will never be granted on account of newly-discovered evidence

       where, by the use of reasonable diligence, the newly-discovered evidence might

       have been obtained and used at the trial sought to be vacated.” Allen v. Bond,

       112 Ind. 523, 530, 14 N.E. 492, 495 (1887). As far as the Association is

       concerned, the proceedings were over and the matter had been resolved.

       Bringing it back into the case would, in effect, subject it to a new trial on the

       question of duty. As such, pursuant to the rationale of Indiana Supreme

       Court’s decision in Allen, it would be inappropriate to bring the Association

       back into the lawsuit if the allegedly newly-discovered evidence could have

       been discovered by the use of reasonable diligence by Dennis before the

       Association was dismissed from the lawsuit.


[10]   Dennis presents no argument that either piece of allegedly newly-discovered

       evidence could not have been discovered or was not available to her prior to

       initiation of the lawsuit. She does not dispute the Association’s assertion that

       both the building instructions and the minutes from the executive meeting were

       available to members of the Association upon request well before the August

       13, 2014 filing date. We conclude that Dennis failed to exercise reasonable

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-425 | September 14, 2018   Page 6 of 7
       diligence by not requesting all relevant documents from the Association before

       initiating the underlying lawsuit. Given that both the building instructions and

       the minutes of the October 7, 2013 executive meeting were available to and

       could have been discovered by Dennis prior to initiation of the underlying

       lawsuit, neither qualifies as newly-discovered evidence sufficient to re-open the

       case against the Association. It would therefore be inappropriate and unduly

       prejudicial to allow Dennis another bite at the proverbial apple to prove duty.


[11]   The judgment of the trial court is affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-425 | September 14, 2018   Page 7 of 7
