James Holden v. Ice Miller LLC

FILED
May 12 2023, 8:47 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE –
Christopher S. Wolcott ICE MILLER LLC
The Wolcott Law Firm LLC Daniel D. Trachtman
Indianapolis, Indiana Daniel R. Kelley
Dinsmore & Shohl LLP
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE –
OLD NATIONAL BANCORP
Lucy R. Dollens
Sarah Thompson Parks
Quarles & Brady LLP
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE –
BMO HARRIS BANK N.A.
Anna-Katrina S. Christakis
James J. Morrissey
Pilgrim Christakis LLP
Chicago, Illinois

ATTORNEYS FOR APPELLEE –
FIFTH THIRD BANK, INDIANA
Jordan T. Steiner
Victor A. Walton
Wesley R. Abrams
Vorys, Sater, Seymour and Pease
LLP
Cincinnati, Ohio

ATTORNEYS FOR APPELLEE – JP
MORGAN CHASE BANK, N.A.
Jayna M. Cacioppo
Nadine E. McSpadden

Court of Appeals of Indiana | Opinion 22A-PL-2760 | May 12, 2023 Page 1 of 18
 Taft Stettinius & Hollister LLP
Indianapolis, Indiana
Matthew J. Cannon
David S. Repking
Greenberg Traurig, LLP
Chicago, Illinois

ATTORNEYS FOR APPELLEE –
PNC BANK NA
Robert D. MacGill
Matthew T. Ciulla
MacGill PC
Indianapolis, Indiana
Robert J. Conlan
Frank R. Volpe
Sidley Austin LLP
Washington, DC

ATTORNEYS FOR APPELLEE –
BANK OF NEW YORK MELLON
J. Richard Kiefer
Gregory A. Neibarger
Joshua J. Burress
Dentons Bingham Greenbaum
LLP
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE –
WELLS FARGO BANK N.A.
Sally Franklin Zweig
Kristopher N. Kazmierczak
Diana Brooke Smith
Stoll Keenon Ogden PLLC
Indianapolis, Indiana
Stacie Knight
Winston & Strawn, LLP
Charlotte, North Carolina

Court of Appeals of Indiana | Opinion 22A-PL-2760 | May 12, 2023 Page 2 of 18
 ATTORNEYS FOR APPELLEE –
HUNTINGTON NATIONAL BANK
Daniel E. Pulliam
Daniel R. Roy
Susanne A. Johnson
Faegre Drinker Biddle & Reath
LLP
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE –
PUBLIC TRUST ADVISORS LLC
Mary Katherine Hetzel
Dinsmore & Shohl LLP
Indianapolis, Indiana
Patrick M. Hagan
Dinsmore & Shohl LLP
Cincinnati, Ohio

ATTORNEYS FOR APPELLEES –
KELLY MITCHELL, JILLEAN
BATTLE, RYAN LOCKE,
MICHAEL FRICK, KIMBERLY
LOGAN, AND CYNTHIA BARGER
James J. Ammeen
Mark J. Liechty
Ammeen Valenzuela Assoc. LLP
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Court of Appeals of Indiana | Opinion 22A-PL-2760 | May 12, 2023 Page 3 of 18
State of Indiana, ex rel. James May 12, 2023
Holden, Court of Appeals Case No.
Appellant-Plaintiff, 22A-PL-2760
Appeal from the Marion Superior
v. Court
The Honorable John M.T. Chavis,
Ice Miller, LLC, Old National II, Judge
Bancorp, BMO Harris Bank, Trial Court Cause No.
N.A., Fifth Third Bank, Indiana, 49D05-2007-PL-22005
JP Morgan Chase Bank, N.A.,
PNC Bank, N.A., Bank of New
York Mellon Corp., Wells Fargo
Bank, N.A., Huntington
National Bank, Public Trust
Advisors, LLC, Kelly Mitchell,
in her individual capacity, Jillean
Battle, in her individual capacity,
Caitlin Larson, in her individual
capacity, Ryan Locke, in his
individual capacity, Michael
Frick, in his individual capacity,
Kimberly Logan, in her
individual capacity, and Cynthia
Barger, in her individual
capacity,
Appellees-Defendants.

Opinion by Judge Tavitas
Judges Weissmann and Foley concur.

Tavitas, Judge.

Court of Appeals of Indiana | Opinion 22A-PL-2760 | May 12, 2023 Page 4 of 18
 Case Summary
[1] James Holden (“Relator”) appeals the trial court’s dismissal of his qui tam

claims brought under the Indiana False Claims and Whistleblower Protection

Act (“IFCA”), Indiana Code Chapter 5-11-5.5. Relator, a former employee of

the Indiana Treasurer of State (“Treasurer”), claims that Treasurer Kelly

Mitchell and members of her staff (“Individual Defendants”)1 conspired with a

law firm, several banks, and an investment advisory firm (“Business

Defendants”)2 to award state contracts that were not approved under the

Financial Reorganization Act (“FRA”), Indiana Code Chapter 4-13-2.

[2] The trial court dismissed Relator’s complaint pursuant to Indiana Trial Rule

12(B)(1) and Trial Rule 12(B)(6). The trial court found, in part, that it lacked

jurisdiction to hear Relator’s action because the action was based upon

information learned in a deposition and upon the Treasurer’s written responses

to a public records act request. On appeal, we address one dispositive issue—

whether the trial court properly dismissed the action pursuant to the public

disclosure bar provisions of Indiana Code Section 5-11-5.5-7(f). We conclude

that the trial court properly dismissed the action but should have dismissed the

1
These staff members include Jillean Battle, Caitlin Larson, Ryan Locke, Michael Frick, Kimberly Logan,
and Cynthia Barger.
2
These defendants include Ice Miller LLC, Old National Bank, BMO Harris Bank N.A., Fifth Third Bank,
Indiana, JP Morgan Chase Bank N.A., PNC Bank N.A., Bank of New York Mellon Corporation, Wells
Fargo Bank N.A., Huntington National Bank, and Public Trust Advisors LLC.

Court of Appeals of Indiana | Opinion 22A-PL-2760 | May 12, 2023 Page 5 of 18
 action under Indiana Trial Rule 12(B)(6) rather than Trial Rule 12(B)(1).

Accordingly, we affirm in part, reverse in part, and remand.

Issue
[3] Relator raises two issues, which we consolidate and restate as whether the trial

court properly dismissed Relator’s complaint.

Facts
[4] Relator was employed as Chief Deputy Treasurer and General Counsel by the

Treasurer from January 2007 to June 2011 and from November 2012 to

November 2013. Kelly Mitchell became the Treasurer on November 18, 2014,

and terminated Relator’s employment. In March 2015, Relator filed a

complaint against the Treasurer and Mitchell as a result of his termination.

During the course of discovery, Relator obtained a copy of an agreement

between the Treasurer and Ice Miller. During a deposition, Mitchell confirmed

that the agreement was not signed by the State Budget Agency, the Indiana

Department of Administration, and the Indiana Attorney General’s Office

pursuant to Indiana Code Section 4-13-2-14.1(a) of the FRA. This litigation

was settled in August 2017.

[5] Mitchell was re-elected as Treasurer in November 2018. In 2019, Holden

checked the Indiana Transparency Portal website to review contracts the

Treasurer had submitted for approval by the State Budget Agency, the Indiana

Department of Administration, and the Indiana Attorney General’s Office, and

he found no such contracts on the Transparency Portal. Holden then sent

Court of Appeals of Indiana | Opinion 22A-PL-2760 | May 12, 2023 Page 6 of 18
 requests under the Indiana Access to Public Records Act, Indiana Code

Chapter 5-14-3, to the Treasurer to obtain a copies of all contracts executed

during Mitchell’s term as Treasurer, and Holden received multiple responses to

his requests. According to Relator, “[t]hese documents showed that during

Defendant Mitchell’s time in office, the [Treasurer] has approved numerous

contracts worth millions of dollars, mostly to Defendant Mitchell’s campaign

donors and supporters, without obtaining the approval of the State Budget

Agency, the Indiana Department of Administration and the Indiana Attorney

General’s Office, as required by Ind. Code § 4-13-2-14.1(a).” Appellant’s App.

Vol. II p. 58.

[6] In July 2020, Relator filed a complaint under seal and alleged that the Treasurer

and Individual Defendants conspired with the Business Defendants to award

the Business Defendant state contracts in violation of the FRA. In June 2021,

the Indiana Attorney General and the Indiana Inspector General declined to

intervene and prosecute the action. Relator then moved to unseal the action,

which the trial court granted, and Relator served his complaint on the

defendants.

[7] In December 2021, Relator amended his complaint to add allegations that the

Individual Defendants had acted outside the scope of their employment and

engaged in criminal conduct. The Individual Defendants filed a motion to

dismiss Relator’s amended complaint pursuant to Indiana Trial Rule 12(B)(1)

and 12(B)(6), and the Business Defendants also filed a motion to dismiss

Relator’s amended complaint pursuant to Indiana Trial Rule 12(B)(1) and

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 12(B)(6). Some of the defendants then filed separate motions to dismiss and/or

supplemental memorandums. After briefing was complete, the trial court held

a hearing on the motions in July 2022.

[8] On October 19, 2022, the trial court granted the motions to dismiss. The trial

court concluded, in part, that Relator’s claims against all of the defendants

failed as a matter of law because the trial court lacked “subject matter

jurisdiction” pursuant to the “public disclosure bar” of Indiana Code Section 5-

11-5.5-7(f) and Schindler Elevator Corp. v. U.S. ex rel. Kirk, 563 U.S. 401 (2011).

Appellant’s App. Vol. II p. 40. The trial court, thus, dismissed Relator’s claims

pursuant to Indiana Trial Rule 12(B)(1). The trial court also concluded, in part,

that the Relator’s claims failed because the Treasurer is not subject to the FRA

“when conducting the State’s banking business.” Id. at 43. The trial court

determined that the “underlying contracts” were valid “because they are within

the statutory powers enjoined to” the Treasurer. Id. at 45. The trial court, thus,

also dismissed Relator’s claims pursuant to Indiana Trial Rule 12(B)(6).

Relator now appeals.

Discussion and Decision
[9] Relator appeals the trial court’s dismissal of his amended complaint under

Indiana Trial Rule 12(B)(1) and Rule 12(B)(6). Trial Rule 12(B)(1) allows

dismissal for “[l]ack of jurisdiction over the subject matter.” Ind. Trial Rule

12(B)(1). “In determining whether a court has subject-matter jurisdiction, we

ask whether the action or claim falls within the general scope of authority

conferred upon the court by the constitution or by statute.” Payne-Elliott v.

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 Roman Cath. Archdiocese of Indianapolis, Inc., 193 N.E.3d 1009, 1013 (Ind. 2022)

(citing State v. Reinhart, 112 N.E.3d 705, 711-12 (Ind. 2018)). Where the trial

court ruled on a paper record, which it did here, “we review its factual findings

as well as its legal conclusions de novo.” Walczak v. Lab. Works-Ft. Wayne LLC,

983 N.E.2d 1146, 1152 (Ind. 2013).

[10] A Trial Rule 12(B)(6) motion, however, tests the legal sufficiency of the

plaintiff’s claim, not the facts supporting it. Payne-Elliott, 193 N.E.3d at 1013

(citing Bellwether Properties, LLC v. Duke Energy Ind., Inc., 87 N.E.3d 462, 466

(Ind. 2017)). “Dismissal under 12(B)(6) is not proper ‘unless it appears to a

certainty on the face of the complaint that the complaining party is not entitled

to any relief.’” Id. (quoting Bellwether Properties, 87 N.E.3d at 466). We review

“a 12(B)(6) dismissal de novo, giving no deference to the trial court’s decision.”

Bellwether Properties, 87 N.E.3d at 466. We take “the complaint’s allegations as

true and consider[] them in the light most favorable to the nonmoving party,

drawing every reasonable inference in that party’s favor.” Payne-Elliott, 193

N.E.3d at 1013. “Dismissal under Rule 12(B)(6) is rarely appropriate when the

asserted ground for dismissal is an affirmative defense; but where a plaintiff has

pleaded himself out of court by alleging, and thus admitting, the essential

elements of a defense, his complaint fails to state a claim on which relief can be

granted.” Id.

[11] Relator’s claims were brought under the IFCA, which is similar to the federal

False Claims Act (“FCA”) statutes. See Ind. Code ch. 5-11-5.5; 31 U.S.C. §

3729-33; State ex rel. Harmeyer v. Kroger Co., 114 N.E.3d 488, 492 (Ind. Ct. App.

Court of Appeals of Indiana | Opinion 22A-PL-2760 | May 12, 2023 Page 9 of 18
 2018) (discussing the IFCA and noting that “[t]he substance of this section

corresponds to the substance of its federal counterpart”), trans. denied. Under

both statutes, citizens, referred to as “relators,” may file qui tam 3 actions on

behalf of the government. United States ex rel. Uhlig v. Fluor Corp., 839 F.3d 628,

633 (7th Cir. 2016).

[12] The IFCA provides that:

A person who knowingly or intentionally:

(1) presents a false claim to the state for payment or approval;
[or]

*****

(7) conspires with another person to perform an act described in
subdivisions (1) through (6);

*****

is, except as provided in subsection (c), liable to the state for a
civil penalty of at least five thousand dollars ($5,000) and for up
to three (3) times the amount of damages sustained by the state.
In addition, a person who violates this section is liable to the

3
“Qui tam actions are those brought under a statute that allows a private person to sue for a penalty, a part
of which the government or some specified public institution will receive. Thus, an action is called a qui tam
action when the penalty is given in part to the one who brings it, and the remainder to the sovereign or other
public use.” 70 C.J.S. Penalties § 10 (footnote omitted).

Court of Appeals of Indiana | Opinion 22A-PL-2760 | May 12, 2023 Page 10 of 18
 state for the costs of a civil action brought to recover a penalty or
damages.

Ind. Code § 5-11-5.5-2(b).

[13] A relator may bring a civil action under seal for a violation of Indiana Code

Section 5-11-5.5-2(b). See I.C. § 5-11-5.5-4(a), 4(c). After a relator files a qui

tam action under the IFCA, the Indiana Attorney General and Inspector

General have the authority to “intervene in the case and proceed with the

action.” I.C. § 5-11-5.5-4(e)(1); I.C. § 5-11-5.5-3. If the Attorney General and

Inspector General “elect not to proceed with the action, . . . the person who

initially filed the complaint may proceed with the action.” I.C. § 5-11-5.5-

4(e)(2). If the action prevails, the person who initially filed the complaint is

entitled to a percentage of the proceeds of the action or settlement. I.C. § 5-11-

5.5-6. “[T]he relator’s recovery can be substantial.” Harmeyer, 114 N.E.3d at

490.

[14] Such actions, however, are subject to certain limitations. See I.C. § 5-11-5.5-7.

At issue here is Indiana Code Section 5-11-5.5-7(f), which provides:

A court does not have jurisdiction over an action brought under
section 4 of this chapter if the action is based upon information
contained in:

(1) a transcript of a criminal, a civil, or an administrative hearing;

(2) a legislative, an administrative, or another public report,
hearing, audit, or investigation; or

Court of Appeals of Indiana | Opinion 22A-PL-2760 | May 12, 2023 Page 11 of 18
 (3) a news media report;

unless the person bringing the action has direct and independent
knowledge of the information that is the basis of the action, and
the person bringing the action has voluntarily provided this
information to the state.

[15] The trial court here found that Relator’s action was based upon responses

received through public records requests and through discovery in Relator’s

employment litigation against the Treasurer. The trial court concluded that

“information learned in a deposition” and “the government’s written responses

to a public records act request” fell under the language of Indiana Code Section

5-11-5.5-7(f). Appellant’s App. Vol. II p. 40, 40 n.6. Accordingly, the trial

court found that it did not have “jurisdiction” and dismissed the action under

Trial Rule 12(B)(1). Id. at 41.

[16] On appeal, Relator makes no argument regarding the information learned in

the deposition. Relator, thus, has waived any argument that the information

learned in Treasurer Mitchell’s deposition did not fall under Indiana Code

Section 5-11-5.5-7(f). Relator, however, argues that the information he learned

in his public records act requests does not qualify as “a legislative, an

administrative, or another public report, hearing, audit, or investigation.” I.C.

§ 5-11-5.5-7(f)(2).

[17] Indiana courts have not interpreted the “legislative, an administrative, or

another public report, hearing, audit, or investigation” language. I.C. § 5-11-

5.5-7(f)(2). “Without any Indiana precedent addressing the [IFCA], we may

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 look to the federal courts for guidance on interpreting the statute.” Harmeyer,

114 N.E.3d at 492 (citing Ind. Civil Rights Comm’n v. Sutherland Lumber, 182 Ind.

App. 133, 140, 394 N.E.2d 949, 954 (1979)). Accordingly, we may look to the

similar provisions of the federal FCA for guidance on interpreting this

provision, which is commonly referred to as the “public disclosure” bar.

[18] The corresponding provision of the federal FCA was interpreted under similar

circumstances in Schindler Elevator Corp. v. U.S. ex rel. Kirk, 563 U.S. 401, 131 S.

Ct. 1885 (2011). There, the United States Supreme Court considered a suit

brought under the FCA. Kirk brought a suit against his former employer and

alleged that the former employer “had submitted hundreds of false claims for

payment under its Government contracts.” Schindler Elevator, 563 U.S. at 405,

131 S. Ct. at 1890. Kirk’s action was based upon information that his wife

received from the Department of Labor in response to three Freedom of

Information Act (“FOIA”) requests. The former employer moved to dismiss

the action because it alleged that an agency’s response to a FOIA request is

barred by the public disclosure provisions of the FCA. The district court agreed

and granted the motion to dismiss. The Court of Appeals for the Second

Circuit vacated and remanded, and the United States Supreme Court granted

certiorari.

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[19] The Supreme Court considered 31 U.S.C. § 3730(e)(4), which, at the time,

provided: 4

(A) No court shall have jurisdiction over an action under this
section based upon the public disclosure of allegations or
transactions in a criminal, civil, or administrative hearing, in a
congressional, administrative, or Government Accounting
Office report, hearing, audit, or investigation, or from the news
media, unless the action is brought by the Attorney General or
the person bringing the action is an original source of the
information.

(B) For purposes of this paragraph, “original source” means an
individual who has direct and independent knowledge of the
information on which the allegations are based and has
voluntarily provided the information to the Government before
filing an action under this section which is based on the
information.

4
The statute was revised in 2010 to eliminate the “jurisdiction” language and now provides:
(A) The court shall dismiss an action or claim under this section, unless opposed by the
Government, if substantially the same allegations or transactions as alleged in the action or
claim were publicly disclosed--
(i) in a Federal criminal, civil, or administrative hearing in which the Government or its agent
is a party;
(ii) in a congressional, Government Accountability Office, or other Federal report, hearing,
audit, or investigation; or
(iii) from the news media,
unless the action is brought by the Attorney General or the person bringing the action is an
original source of the information.
(B) For purposes of this paragraph, “original source” means an individual who either (i) prior to
a public disclosure under subsection (e)(4)(a), has voluntarily disclosed to the Government the
information on which allegations or transactions in a claim are based, or (2) who has knowledge
that is independent of and materially adds to the publicly disclosed allegations or transactions,
and who has voluntarily provided the information to the Government before filing an action
under this section.

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 (Emphasis added).

[20] The Court analyzed the meaning of “report” and concluded that “[a] written

agency response to a FOIA request falls within the ordinary meaning of

‘report.’” Id. at 410, 131 S. Ct. at 1893. The Court then determined that “[t]he

DOL’s three written FOIA responses to Mrs. Kirk, along with their attached

records, are thus reports within the meaning of the public disclosure bar.” Id. at

411, 131 S. Ct. at 1893.

[21] In discussing the policy behind the public disclosure bar, the Court noted that

“the public disclosure bar was ‘an effort to strike a balance between

encouraging private persons to root out fraud and stifling parasitic lawsuits.’”

Id. at 413, 131 S. Ct. at 1894 (quoting Graham Cnty. Soil & Water Conservation

Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 294-95, 130 S. Ct. 1396, 140 (2010)).

The sort of case that Kirk has brought seems to us a classic
example of the “opportunistic” litigation that the public
disclosure bar is designed to discourage. Although Kirk alleges
that he became suspicious from his own experiences as a veteran
working at Schindler, anyone could have filed the same FOIA
requests and then filed the same suit. Similarly, anyone could
identify a few regulatory filing and certification requirements,
submit FOIA requests until he discovers a federal contractor who
is out of compliance, and potentially reap a windfall in a qui tam
action under the FCA.

Id., 131 S. Ct. at 1894 (internal citations omitted).

[22] Relator, however, argues that we should not rely upon Schindler Elevator and,

instead, we should rely upon the dissent in Schindler Elevator. We decline

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 Relator’s invitation. Although the language in the FCA and IFCA is slightly

different—“a congressional, administrative, or Government Accounting Office

report, hearing, audit, or investigation” versus “a legislative, an administrative,

or another public report, hearing, audit, or investigation”—the statutes serve the

same purposes of encouraging persons to “root out fraud” while discouraging

“opportunistic” litigation. Id. We find Schindler Elevator persuasive, and we

conclude that the Treasurer’s responses to Relator’s Indiana Access to Public

Records Act requests are “public reports.” Anyone could have filed those same

requests and then filed the same suit. Relator did not have “direct and

independent knowledge” of the information. Accordingly, under Indiana Code

Section 5-11-5.5-7(f), the trial court did not have “jurisdiction” over the action.

[23] Although not raised by the parties, we must note, however, that the term

“jurisdiction” in the statute at issue here does not refer to subject matter

jurisdiction. Trial courts possess two kinds of “jurisdiction”—subject matter

jurisdiction and personal jurisdiction. K.S. v. State, 849 N.E.2d 538, 540 (Ind.

2006). “Subject matter jurisdiction refers to a court’s constitutional or statutory

power to hear and adjudicate a certain type of case.” D.P. v. State, 151 N.E.3d

1210, 1213 (Ind. 2020). The trial court here had subject matter jurisdiction to

hear a qui tam action. “Other phrases recently common to Indiana practice,

like ‘jurisdiction over a particular case,’ confuse actual jurisdiction with legal

error[.]” K.S., 849 N.E.2d at 540.

[24] In Packard v. Shoopman, 852 N.E.2d 927 (Ind. 2006), our Supreme Court

considered the use of the term “jurisdiction” in Indiana Code Section 33-26-6-2,

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 which provided: “If a taxpayer fails to comply with any statutory requirement

for the initiation of an original tax appeal, the tax court does not have

jurisdiction to hear the appeal.” The Court concluded that compliance with the

statutory requirements for initiation of an original tax appeal did “not affect the

subject matter jurisdiction of the Tax Court” and, when Indiana Code Section

33-26-6-2 was passed, “the General Assembly used ‘jurisdiction’ to refer to the

now abolished ‘jurisdiction over the particular case[.]’” Packard, 852 N.E.2d at

930.

[25] Similarly, here, the use of the term “jurisdiction” in Indiana Code Section 5-11-

5.5-7(f) refers to the now abolished “jurisdiction over the particular case.”

Accordingly, dismissal under Indiana Trial Rule 12(B)(1) for lack of subject

matter jurisdiction was improper. See, e.g., Payne-Elliot, 193 N.E.3d at 1013

(holding that the trial court erred by dismissing under Trial Rule 12(B)(1) for

lack of subject matter jurisdiction where the trial court was “not ousted of

subject-matter jurisdiction just because the defendant assert[ed] a religious

defense”). Rather, the trial court should have dismissed the action under Trial

Rule 12(B)(6) for “[f]ailure to state a claim upon which relief can be granted[.]”

[26] When an action is dismissed under Trial Rule 12(B)(6), however, “the pleading

may be amended once as of right pursuant to [Trial] Rule 15(A) within ten [10]

days after service of notice of the court’s order sustaining the motion[.]” Id. at

1015. Accordingly, we affirm the judgment of dismissal as to all defendants

under Trial Rule 12(B)(6), but we modify the judgment to reflect the dismissal is

without prejudice. See id. Because the trial court properly dismissed pursuant

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 to Indiana Code Section 5-11-5.5-7(f), we need not address the parties’

remaining arguments.

Conclusion
[27] We affirm the trial court’s dismissal of Relator’s action pursuant to Indiana

Code Section 5-11-5.5-7(f). We conclude, however, that the trial court should

have dismissed the action under Trial Rule 12(B)(6) rather than Trial Rule

12(B)(1). Accordingly, the action should have been dismissed without

prejudice. As a result, we affirm in part, reverse in part, and remand with

instructions to dismiss the action without prejudice.

[28] Affirmed in part, reversed in part, and remanded.

Weissmann, J., and Foley, J., concur.

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