Leo Prassas v. Corick Construction, LLC (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
Dec 28 2015, 8:37 am
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
Gregg Romaine
Romaine Law
Fishers, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Leo Prassas, December 28, 2015
Appellant-Plaintiff, Court of Appeals Case No.
64A05-1508-CT-1081
v. Appeal from the Porter Superior
Court
Corick Construction, LLC, The Honorable William E. Alexa,
Appellee-Defendant. Judge
Trial Court Cause No.
64D02-1502-CT-891

Bradford, Judge.

Case Summary
[1] In February of 2013, Appellant-Plaintiff Leo Prassas contracted with Appellee-

Defendant Corick Construction, LLC to have some roofing work done at his
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 residence. After the work was completed, Prassas filed a small claims action

against Corick Construction alleging that the repairs had been completed in an

unworkmanlike manner. After the small claims court found in favor of Corick

Construction, Prassas filed the instant lawsuit, which alleges breach of contract,

breach of implied warranty, and deceptive practices. Corick Construction

subsequently filed a motion to dismiss. Prassas responded to this motion and

filed a motion for default judgment. Following a hearing on the parties’

motions, the trial court issued an order in which it ruled in favor of Corick

Construction.

[2] Prassas appealed, arguing that the trial court erred in ruling in favor of Corick

Construction. Concluding that the trial court did not commit reversible error in

effectively treating Corick Construction’s motion to dismiss as a motion for

summary judgment but that issues of material fact remain that would preclude

an award of summary judgment in Corick Construction’s favor, we reverse the

judgment of the trial court and remand the matter to the trial court for further

proceedings.

Facts and Procedural History
[3] At all times relevant to the instant appeal, Corick Construction was under a

voluntary-compliance order aimed at curtailing deceptive practices against

consumers to whom it had supplied roofing services. As part of this order,

Corick Construction was ordered to change its standard contract form to

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 comply with Indiana law and to refrain from acting as a public insurance

adjuster.

[4] On February 13, 2013, Prassas and Corick Construction entered into a contract

for Corick to repair and replace Prassas’s hail-damaged roof. The contract

entered into by the parties is the same contract as the Indiana Attorney

General’s Office had prohibited Corick Construction from using. The contract

failed to provide a sufficient scope of services and provided for a guaranteed

recovery fee from the insurance proceeds even if Corick Construction did not

complete the contracted work.

[5] Corick Construction worked with Prassas and his insurance company to assess

Prassas’s damages and the associated repairs to assure that Prassas’s insurance

company would pay for the necessary roof repairs. In completing the

contracted work, Corick Construction replaced the shingles on the roof and

partially replaced the gutters and downspouts. Prassas, a senior citizen, was not

able to get up on the roof to inspect the installation of the shingles but

repeatedly complained to Corick Construction that the downspouts were not

replaced properly and the gutters were not angled properly to allow for the

proper flow of water into the downspouts.

[6] During the fall of 2014, a neighbor approached Prassas and informed him that

something appeared to be wrong with his roof. The neighbor, who had a

background in construction, told Prassas that the roof looked “wavy” and that

the shingles looked slightly curled at the edges. Appellant’s App. p. 6. During

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 the late fall 2014 and early winter of 2015, Prassas had his roof inspected by

several roofers. These roofers informed Prassas that they observed that the

shingle spacing varied greatly, the shingles looked worn and had curled at the

edges, and the gutters were not properly angled at the rear of the house.

[7] On February 4, 2015, Prassas filed a complaint for damages against Corick

Construction alleging breach of contract, breach of implied warranty, and

deceptive practices. In this complaint Prassas acknowledges that Corick

Construction maintains that the roof and gutters were properly replaced and

that there is no defect with the work performed under the contract. Prassas

claims, however, that he will have to have the roof replaced and the gutters

rehung as a result of Corick Construction’s allegedly faulty installation of the

roof and gutters. Prassas claims that by acting as a public adjuster, Corick

Construction caused Prassas to “not have a final inspection by an insurance

representative who probably would have seen the defective workmanship.”

Appellant’s App. p. 8.

[8] On March 27, 2015, Corick Construction filed an Indiana Trial Rule 12(B)(6)

motion to dismiss Prassas’s complaint. In this motion, Corick Construction

alleged that the instant law suit was barred by the doctrine of res judicata because

Prassas had filed a small claims action against Corick Construction alleging

unworkmanlike quality of the roof replacement as it related to the same

contract and same set of facts that were referred to in the instant action. Corick

Construction indicated that the small claims action had been resolved against

Prassas, with the judge specifically finding that Prassas failed to prove faulty

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 workmanship in completing the contracted work. Corick Construction further

indicated that following the small claims court’s ruling, Prassas, by counsel, had

filed a motion to correct error and that this motion was subsequently deemed

denied by the small claims court.

[9] On March 31, 2015, Prassas responded to Corick Construction’s motion to

dismiss and moved for default judgment. Following a May 5, 2015 hearing on

the pending motions, the trial court took the matter under advisement. The

trial court subsequently issued an order in which it ruled in favor of Corick

Construction. This appeal follows.

Discussion and Decision
[10] Initially, we note that our disposition in the instant matter has been made more

difficult by the fact that Corick Construction failed to submit an appellee brief.

“Instead of imposing upon this court the burden of controverting arguments

advanced for reversal, however, Indiana courts have long applied a less

stringent standard of review with respect to showings of reversible error when

the appellee fails to file a brief.” Johnson Cty. Rural Elec. Membership Corp. v.

Burnell, 484 N.E.2d 989, 991 (Ind. Ct. App. 1985). Thus, Prassas need only

establish the lower court committed prima facie error to win reversal. Id. (citing

Ind. State Bd. of Health v. Lakeland Disposal Serv., Inc., 461 N.E.2d 1145, 1145 n. 1

(Ind. Ct. App. 1984)). “In this context, ‘prima facie’ means at first sight, on

first appearance, or on the face of it.” Id. (quoting Harrington v. Hartman, 142

Ind. App. 87, 88, 233 N.E.2d 189, 191 (1968)). Likewise, the statement of facts

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 contained in Prassas’s brief “is deemed by us to be accurate and sufficient for

the disposition of this appeal.” Id. (citing Colley v. Carpenter, 172 Ind. App. 638,

362 N.E.2d 163 (1977)).

I. Proper Treatment of a Trial Rule 12(B)(6) Motion to
Dismiss as a Motion for Summary Judgment
[11] On appeal, Prassas contends that the trial court erred in ruling in favor of

Corick Construction. In raising this contention, Prassas asserts that the trial

court relied on evidence outside of the pleadings. Prassas further asserts that

the trial court effectively treated Corick’s motion to dismiss as a motion for

summary judgment. Prassas claims that it was erroneous for the trial court to

do so because it ruled on the motion without providing Prassas the opportunity

to put forth evidence which he claims would show the existence of genuine

issues of material fact.

[12] [Indiana Trial] Rule 12(B) provides that a motion to dismiss for
failure to state a claim shall be treated as a motion for summary
judgment when “matters outside the pleading are presented to
and not excluded by the trial court.” Where a trial court treats a
motion to dismiss as one for summary judgment, the court must
grant the parties a reasonable opportunity to present T.R. 56
materials. See T.R. 12(B); Biberstine v. New York Blower Co., 625
N.E.2d 1308, 1313 (Ind. Ct. App. 1993), trans. dismissed. 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. Ayres v.
Indian Heights Volunteer Fire Department, 493 N.E.2d 1229, 1233
(Ind. 1986).

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 Our review of the relevant cases discloses at least four
considerations pertinent to a determination of whether a trial
court’s failure to give express notice deprives the nonmovant of a
reasonable opportunity to respond with T.R. 56 materials. First,
we consider whether the movant’s reliance on evidence outside
the pleadings should have been so readily apparent that there is
no question that the conversion is mandated by T.R. 12(B). See
Duran v. Komyatte, 490 N.E.2d 388, 391 (Ind. Ct. App. 1986),
trans. denied (noting that the operation of T.R. 12(B) is “well
known” and a “clear mandate” of which counsel should be
cognizant). Second, we consider whether there was ample time
after the filing of the motion for the nonmovant to move to
exclude the evidence relied upon by the movant in support of its
motion or to submit T.R. 56 materials in response thereto. See
Biberstine, 625 N.E.2d at 1314. Third, we consider whether the
nonmovant presented “substantiated argument” setting forth
how she “would have submitted specific controverted material
factual issues to the trial court if [she] had been given the
opportunity.” Ayres, 493 N.E.2d at 1233 (citing Macklin v. Butler,
553 F.2d 525, 528 (7th Cir. 1977)).

Azhar v. Town of Fishers, 744 N.E.2d 947, 950-51 (Ind. Ct. App. 2001) (first set of

brackets added, footnote omitted).

[13] In Azhar, we concluded that the trial court did not commit reversible error by

treating the Defendants’ motion to dismiss as a motion for summary judgment

because the Defendants’ reliance on evidence outside the pleadings was

unmistakable and “given the mandatory wording of Trial Rule 12(B), Azhar

should have known that the trial court was compelled to convert the motion to

a summary judgment motion.” Id. at 951. We also noted that the approximate

three-month period between the filing of the motion to dismiss and the hearing

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 thereon was ample time to allow Azhar to “(1) move to exclude the evidence

relied upon by the Defendants; (2) file a motion for additional time to conduct

discovery to ascertain the evidence in opposition to the motion; and/or (3)

submit materials in opposition thereto.” Id. We last noted that Azhar had

“failed to show, either in the hearing below or in her appellate briefs, what

specific additional material she would have presented if express notice had been

given.” Id.

[14] Here, similar to Azhar, we must conclude that the trial court did not commit

reversible error by considering the evidence outside the pleadings submitted by

Corick Construction and effectively treating Corick Construction’s motion to

dismiss as a motion for summary judgment. Again, “[t]he 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.” Id. at 950.

Upon review, we cannot say that Prassas was prejudiced or denied a reasonably

opportunity to respond.

[15] As in Azhar, Corick Construction’s reliance on evidence outside the pleadings

was unmistakable. Thus, given the mandatory wording of Indiana Trial Rule

12(B), Prassas should have known that the trial court was compelled to convert

the motion into a motion for summary judgment. The record reflects that

counsel for Prassas did, in fact, make such realization, acknowledging that

because Corick Construction attached the small claims court judgment to its

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 motion, the motion should have been treated as a motion for summary

judgment.

[16] We also believe that Prassas had ample time to (1) move to exclude the

evidence relied on by Corick Construction, (2) file a motion for additional time

to conduct discovery, or (3) to submit materials in opposition thereto. The

record reveals that Prassas responded to Corick Construction’s motion. Over

one month later, the trial court conducted a hearing on the pending motions.

During this hearing, counsel for Prassas presented argument before the trial

court stating Prassas’s opposition to Corick Construction’s motion. In doing

so, counsel for Prassas acknowledged that Corick Construction’s motion was,

in effect, a summary judgment motion. Counsel for Prassas also presented

argument akin to what would be argued during a summary judgment hearing,

i.e., argument aimed at showing that an issue of material fact existed with

regard to whether Prassas’s claims were barred by the doctrine of res judicata.

Specifically, Prassas argued that the issues raised in the instant matter were not

the same as those raised in the small claims action but rather represented

separate and distinct allegations of inadequate workmanship by Corick

Construction. Prassas has not indicated what specific additional information he

would have presented if express notice that the motion to dismiss would be

treated as a motion for summary judgment had been given.

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 II. Propriety of Judgment in Favor of Corick
Construction
[17] Prassas appears to alternatively contend on appeal that, even assuming the trial

court correctly treated Corick Construction’s motion to dismiss as a motion for

summary judgment, the trial court’s ruling in favor of Corick Construction was

erroneous. Thus, having concluded that the trial court did not commit

reversible error by considering Corick Construction’s motion to dismiss as a

motion for summary judgment, we must next consider whether summary

judgment is appropriate.

The purpose of summary judgment is to end litigation about
which there can be no factual dispute and which may be
determined as a matter of law. LeBrun v. Conner, 702 N.E.2d 754,
756 (Ind. Ct. App. 1998). The moving party bears the burden of
making a prima facie showing that there are no genuine issues of
material fact. Ind. Trial Rule 56(C); Campbell v. Criterion Group,
613 N.E.2d 423, 428 (Ind. Ct. App. 1993), on reh’g 621 N.E.2d
342. It is only after the moving party makes a prima facie
showing of the non-existence of a genuine issue of material fact
that the burden shifts to the non-moving party to set forth specific
facts showing the existence of a genuine issue for trial. T.R.
56(E); Campbell, 613 N.E.2d at 428.

Id. at 952.

[18] Four elements determine whether a judgment has res judicata
effect: 1) the former judgment must have been rendered by a
court of competent jurisdiction; 2) the matter now in issue was,
or might have been, determined in the former suit; 3) the
particular controversy previously adjudicated must have been
between the parties to the present suit or their privies; and 4) the

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 judgment in the former suit must have been rendered on the
merits. Cox v. Ind. Subcontractors Ass’n, Inc., 441 N.E.2d 222, 225
(Ind. Ct. App. 1982).

Moreton v. Auto-Owners Ins., 859 N.E.2d 1252, 1254 (Ind. Ct. App. 2007)

(emphasis added). The parties do not appear to dispute that the small claims

judgment was rendered by a court of competent jurisdiction, that the particular

controversy previously adjudicated was between the same parties as the instant

matter, or that the small claims judgment was rendered on the merits.

[19] However, Prassas argued below, and again on appeal, that the issues presented

in the instant law suit were not the same as those raised in the small claims

action. Prassas specifically asserts on appeal that although Corick Construction

claims that he was “trying to take two bites at the apple, it’s just not true.” Tr.

p. 12.

[20] The documents designated by Corick Construction and the argument offered by

Prassas indicate that the small claims action involved allegations of faulty

workmanship relating to the installation of a soffit. The complaint filed in the

instant matter, however, involves the allegedly improper installation of shingles,

gutters, and downspouts. Specifically, the complaint alleges that Corick

Construction committed a breach of contract and breach of implied warranty

with regard to the allegedly improper installation of the shingles, gutters, and

downspouts. The complaint also contains the claim that the allegedly improper

installation was not noticed upon final inspection because Corick Construction,

in violation of a voluntary-compliance order that it had entered into with the

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 Indiana Attorney General, worked with Prassas’s insurance company to assess

Prassas’s damages, the associated necessary repairs, and the sum of funds that

would be paid out for the completed repairs.

[21] In addition, the complaint alleges that Prassas did not learn of the full extent of

the allegedly improper installation of the shingles, gutters, and downspouts

until he had his roof inspected by several roofers in late 2014 and early 2015.

The designated documents demonstrate that the small claims court trial was

conducted on November 21, 2014, and the court’s decision issued on December

3, 2014. Thus, the pleadings and designated documents present an issue of

material fact as to whether Prassas was aware of the allegedly improper

installation of the shingles, gutters, and downspouts at the time he filed the

small claims court action. It is reasonable to assume that if he did not know of

the improper installation, he could not have included such claims in the small

claims action.

[22] Given that Prassas need only make a prima facie case of error, we conclude that

the record indicates that an issue of material fact exists as to whether the claims

raised in the instant lawsuit were the same as those raised before the small

claims court. Because issue of material fact remains, we conclude that the trial

court erred in ruling in Corick Construction’s favor and dismissing the instant

lawsuit.

[23] The judgment of the trial court is reversed and the matter remanded to the trial

court for further proceedings.

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Baker, J., and Pyle, J., concur.

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