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
Amy D. Martin v. Lawrence A. Maurer (mem. dec.)
Combined Opinion