MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Aug 22 2018, 9:22 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.


ATTORNEY FOR APPELLANT
Joshua W. Casselman
Rubin & Levin, P.C.
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Automotive Finance                                       August 22, 2018
Corporation dba AFC                                      Court of Appeals Case No.
Automotive Finance                                       18A-CC-571
Corporation dba AFC,                                     Appeal from the Marion Superior
Appellant-Plaintiff,                                     Court
                                                         The Honorable David J. Dreyer,
        v.                                               Judge
                                                         Trial Court Cause No.
Thornton Motor Company, Inc.                             49D10-1709-CC-36708
dba Thornton Motor Company;
Alan William Thornton aka
Alan W. Thornton aka Alan
Thornton; and Leslie Diane
Thornton aka Leslie D.
Thornton aka Leslie Sahzman
Thornton aka Leslie Thornton
aka Leslie S. Thornton,
Appellees-Defendants



Court of Appeals of Indiana | Memorandum Decision 18A-CC-571 | August 22, 2018                  Page 1 of 5
      Vaidik, Chief Judge.



                                          Case Summary
[1]   Automotive Finance Corporation (“AFC”) filed a complaint against Leslie

      Thornton. Leslie, pro se, filed a “Motion to Dismiss” the complaint and

      attached several exhibits to it. The trial court stamped “GRANTED” on the

      first page of Leslie’s “Motion to Dismiss.” AFC now appeals, arguing that the

      trial court treated Leslie’s “Motion to Dismiss” as a motion for summary

      judgment but did not afford AFC a reasonable opportunity to present Trial Rule

      56 materials. We reverse and remand.



                            Facts and Procedural History
[2]   In September 2017, AFC filed a complaint against Leslie Thornton, Alan

      Thornton, and Thornton Motor Company, Inc. (which operated a used-car

      dealership in Arkansas) in Marion Superior Court. The complaint alleged three

      counts against Leslie: (1) breach of guaranty; (2) check deception; and (3)

      conversion. In October 2017, Leslie, who represented herself, filed an answer

      with five exhibits. In the answer, Leslie admitted that she executed a guaranty

      in 2014 in order for Thornton Motor Company to obtain a loan. On November

      29, 2017, Leslie filed a document she titled “Motion to Dismiss Complaint of

      the Plaintiff as to Separate Defendant, Leslie Thornton, Only.” Appellant’s

      App. Vol. II p. 116. Although Leslie’s pro se filing did not provide a legal basis

      for the dismissal, she attached several exhibits to her “Motion to Dismiss,”

      Court of Appeals of Indiana | Memorandum Decision 18A-CC-571 | August 22, 2018   Page 2 of 5
      including her answer and the exhibits she had attached to it (Exhibit A) as well

      as numerous documents relating to Leslie and Alan’s divorce in Arkansas

      (Exhibits B and C). In essence, Leslie argued that the complaint should be

      dismissed as to her because there was an order in the parties’ Arkansas divorce

      case that “restrained [her] from being involved in the business of Thornton

      Motor Company” and she “had no knowledge or hand in any business

      transactions whatsoever from July 3, 2016 through the present time.” Id. at 117

      (capitalization omitted).


[3]   The next day, November 30, 2017, AFC filed a response. AFC argued that

      Leslie’s “Motion to Dismiss” should be “deemed as one brought pursuant to

      Trial Rule 12([B])(6)” but that if the trial court considered Leslie’s motion as

      one for summary judgment, then “counsel for plaintiff will respond accordingly

      following notice that the Court is treating it as such.” Id. at 167-68.


[4]   The next entry on the CCS is dated January 2, 2018. Id. at 4. On this date, the

      trial court stamped “GRANTED” on the first page of Leslie’s “Motion to

      Dismiss.” Id. at 6. AFC filed a motion to reconsider, which the trial court

      never ruled on and was deemed denied.


[5]   AFC now appeals.



                                 Discussion and Decision
[6]   At the outset we note that Leslie has failed to file an appellee’s brief. When the

      appellee fails to submit a brief, we will not develop an argument on her behalf

      Court of Appeals of Indiana | Memorandum Decision 18A-CC-571 | August 22, 2018   Page 3 of 5
      but, instead, we will reverse the trial court’s judgment if the appellant’s brief

      presents a case of prima facie error. GEICO Ins. Co. v. Graham, 14 N.E.3d 854,

      857 (Ind. Ct. App. 2014).


[7]   AFC makes several arguments on appeal, but we find one dispositive. That is,

      AFC contends that the trial court treated Leslie’s “Motion to Dismiss” as a

      motion for summary judgment but did not afford AFC a reasonable

      opportunity to present Trial Rule 56 materials.


[8]   Indiana Trial Rule 12(B) provides that a motion to dismiss for failure to state a

      claim shall be treated as one for summary judgment when “matters outside the

      pleading are presented to and not excluded by the court.” In such a case, “all

      parties shall be given reasonable opportunity to present all material made

      pertinent to such a motion by Rule 56.” Ind. Trial Rule 12(B). 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).


[9]   Admittedly, this case is unique. A pro se defendant filed a “Motion to

      Dismiss” without citing any legal basis for the dismissal but attached numerous

      exhibits to the motion. Not sure how Leslie was proceeding, AFC responded

      as if Leslie had filed a motion to dismiss for failure to state a claim. However,

      AFC included in its response that if the trial court was going to consider

      Leslie’s motion as one for summary judgment, then “counsel for plaintiff will


      Court of Appeals of Indiana | Memorandum Decision 18A-CC-571 | August 22, 2018   Page 4 of 5
       respond accordingly following notice that the Court is treating it as such.”

       Although the court did not give AFC explicit notice that it was treating Leslie’s

       motion as one for summary judgment, it did not exclude the exhibits either.

       Rather, the court stamped “GRANTED” on the first page of Leslie’s “Motion

       to Dismiss,” which had several exhibits attached to it. And when AFC sought

       reconsideration, the court did not rule on that. On appeal, AFC says it was

       “not given a reasonable opportunity to present evidence in opposition” and was

       prejudiced as a result. Appellant’s Br. pp. 18, 20. Leslie hasn’t filed an

       appellee’s brief arguing otherwise, and we won’t develop those arguments for

       her. See Graham, 14 N.E.3d at 857. Accordingly, we reverse the dismissal of

       AFC’s complaint and remand this case to the trial court for further proceedings.

       If the court is going to treat Leslie’s motion as one for summary judgment, it

       must give AFC a “reasonable opportunity to present all material made pertinent

       to such a motion by Rule 56.”


[10]   Reversed and remanded.


       Pyle, J., and Barnes, Sr. J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CC-571 | August 22, 2018   Page 5 of 5
