concurring.
I concur but write separately to take issue with one of the conclusions reached by the majority. Such conclusion is not dispositive, however, and does not impact my agreement with the reversal of the dismissal in this case.
I fully agree with the majority's reliance upon Vannatta v. Chandler, 810 N.E.2d 1108 (Ind.Ct.App.2004) and Davidson v. Perron, 716 N.E.2d 29 (Ind.Ct.App., 1999) for the proposition that the critical question is whether the parties, subject matter, and remedies are either precisely or substantially the same. I further agree that in the case before us the parties, subject matter and remedies are not precisely or substantially the same.
However, I disagree with the conclusion of the majority opinion, as set forth at several locations, that the outcome of the State litigation will not "affect the adjudication" in the federal litigation. See Vannatta, 810 N.E.2d at 1110.
The Indiana trial court's resolution of the "public agency" factual issue may well not impact the federal determination upon the 42 U.S.C. § 1983 claim. Nevertheless, if for APRA purposes, IPEP is a "public agency" and is ordered to disclose the documents sought, that determination "will affect" the federal adjudication in that the documents may demonstrate the alleged illegal activity of IPEP, which is an essential element of the § 1983 action.
Subject to the above, I concur in the reversal and remand to the trial court.