Automotive Finance Corporation dba AFC Automotive Finance Corporation dba AFC v. Thornton Motor Company, Inc., Alan William Thornton, and Leslie Diane Thornton (mem. dec.)

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

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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,”

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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

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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

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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.

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