Kelli J. Dugan, Appellant-Third-Party Plaintiff v. J. Keith Stucker and Jenna Spurrier, Appellees-Third-Party Defendants (2025)

MEMORANDUM DECISION

[1] Kelli J. Dugan appeals the trial court's dismissal of Jenna Spurrier and entry of summary judgment for J. Keith Stucker following Dugan's amended third-party complaint in which Dugan alleged constructive fraud, breach of fiduciary duty, and malpractice. Dugan raises three issues for our review, which we restate as follows:

1. Whether Dugan's amended complaint superseded her original complaint.

2. Whether the trial court properly dismissed Spurrier as a party to Dugan's amended complaint.

3. Whether the trial court erred when it entered summary judgment for Stucker on Dugan's amended claims.

[2] We affirm.

Facts and Procedural History

[3] Thurston, Springer, Miller, Herd & Titak, Inc. (“Thurston Springer”) is an investment advisory firm in Indianapolis that provides investment advice to its clients. At all relevant times, Stucker and Spurrier were both registered investment advisor representatives and employees of Thurston Springer. In 2016, Dugan opened an account with Thurston Springer, and Stucker and Spurrier advised Dugan on her investments there.

[4] Dugan “completely relied on Stucker's and Spurrier's advice—and thus the advice of Thurston Springer—on how to manage, direct, and invest her funds.” Appellant's Br. at 12; see Appellant's App. Vol. 6, p. 8. In the spring of 2018, Stucker advised Dugan to invest in a local restaurant start-up called Pier 48. Dugan believed Stucker was advising her “in his capacity as [her] financial advis[o]r” with Thurston Springer. Appellant's App. Vol. 6, p. 9. Indeed, many of the ensuing investment meetings Dugan had with Stucker “were held ․ at the Thurston Springer offices in Indianapolis.” Id. During those meetings, Stucker provided Dugan with financial projections on the anticipated success of Pier 48.

[5] Dugan agreed to invest “hundreds of thousands of dollars into Pier 48 after receiving [Stucker's] financial projections and reassurances that it was a good investment.” Id. at 10. Dugan's investments were transferred out of her “Thurston Springer accounts” and into “the Pier 48 accounts in multiple stages.” Id. Each time, Stucker would advise Dugan on how much to withdraw and from which account to make that withdrawal. Once she executed the necessary paperwork, “Thurston Springer arranged for the transfer of these funds.” Id. Dugan also executed a guaranty in the amount of $1.9 million in support of Pier 48's start-up. However, at no time did Stucker, Spurrier, or “anyone else at Thurston Springer” advise Dugan about the risks and benefits of her commitments to Pier 48 or whether her investments were consistent with her financial goals. Id. And, Dugan would later learn, Stucker was a founding member of Pier 48, although he did not disclose any conflict of interest to Dugan at the time of his investment advice.

[6] Pier 48 struggled during the pandemic of 2020 and defaulted on its lease agreement. The holder of that agreement sought recourse by way of a civil complaint in the Hamilton Superior Court against Dugan as a Pier 48 guarantor. Dugan, in turn, filed a third-party complaint against Thurston Springer, Stucker, Spurrier, and others, including another Thurston Springer employee, Brian Sweeney. In her original third-party complaint, Dugan alleged that Thurston Springer and each of its employees had violated the Indiana Uniform Securities Act (“the Act”) and caused her damages. Appellant's App. Vol. 2, p. 160. Dugan further alleged that Thurston Springer and Stucker specifically had also committed constructive fraud, breached their fiduciary duties to her, and committed malpractice. Id. at 160-61. Dugan later settled with the original plaintiff.

[7] Dugan's third-party defendants moved to dismiss her third-party complaint against them prior to filing their answer. The trial court converted that motion to a motion for summary judgment and granted the motion on all claims against all third-party defendants except for the claims of constructive fraud, breach of fiduciary duty, and malpractice as alleged against Thurston Springer and Stucker. Dugan did not pursue appellate review of that order or otherwise ask the trial court to enter the partial summary judgment as a final judgment while she continued to pursue the remaining claims.

[8] Instead, Dugan proceeded by way of amending her third-party complaint. Dugan's amended complaint named only Thurston Springer, Stucker, and Spurrier as third-party defendants. Appellant's App. Vol. 8, p. 60. She further alleged only claims of constructive fraud, breach of fiduciary duty, and malpractice, which claims she alleged against each of the third-party defendants. Id. at 66-68. Dugan did not allege any claims under the Act in her amended complaint and she did not name Sweeney as a third-party defendant to her amended complaint.

[9] Spurrier moved for dismissal on the theory that Dugan's amended claims against her did not relate back to the date of Dugan's original complaint and, thus, were outside the relevant statutes of limitations. The trial court granted that motion and dismissed Spurrier. Dugan then settled with Thurston Springer, and the parties jointly moved to dismiss Thurston Springer with prejudice, which the trial court granted. Appellant's App. Vol. 2, p. 27. Thereafter, Stucker moved for summary judgment. After a hearing, the trial court granted Stucker's motion.

[10] This appeal ensued.

1. Dugan abandoned her claims under the Act and against Sweeney when she amended her complaint.

[11] Much of Dugan's briefing on appeal seeks to challenge the trial court's first summary-judgment order on Dugan's original third-party complaint. In particular, Dugan contends that the trial court erred when it entered summary judgment for the original third-party defendants, including Sweeney, under the Act. Appellant's Br. at 20-29. She also challenges the trial court's decision to strike certain designated evidence prior to entering that order as well as the merits of the court's first summary-judgment decision. Id. at 29-37. In response, Sweeney has filed a motion to dismiss him from this appeal on the ground that Dugan abandoned her original third-party claims against him when she amended her complaint and did not re-name him as a third-party defendant. Dugan and Sweeney have separately briefed the merits of Sweeney's motion to dismiss.¹

[12] We agree with Sweeney. None of Dugan's arguments on the content of matters prior to the amendment of her third-party complaint are proper. It has long been beyond dispute in Indiana that, with respect to the contents of pleadings, “the filing of the amended pleading takes the original pleading, with the rulings thereon, out of the record the same as if it had never been filed.” State ex rel. George v. Dean, 209 Ind. 276, 279, 198 N.E. 792, 793 (1935); cf. Hamlin v. Sourwine, 666 N.E.2d 404, 408 (Ind. Ct. App. 1996) (concluding that, while the contents of an original pleading were superseded by an amended pleading, the original request for a jury trial was not superseded because “a jury trial demand is not a pleading”); Ind. Trial Rule 15(C) (allowing for amendments of pleadings to relate back to the date of an original pleading in certain circumstances).

[13] Here, after the trial court entered its summary-judgment order on Dugan's original complaint, Dugan chose to proceed by way of amending her complaint. The contents of her amended complaint did not allege any claims under the Act, and her amended complaint did not name Sweeney as a third-party defendant. Accordingly, in choosing to proceed by way of amending her pleading, Dugan abandoned her claims under the Act and abandoned her claims against Sweeney. Further, her amendment of her complaint rendered the trial court's summary-judgment decisions on her original complaint a nullity with respect to these proceedings going forward from her amendment.² Dean, 209 Ind. at 279, 198 N.E. at 793.

[14] Nonetheless, Dugan argues on appeal that her claims under the Act and against Sweeney survived her amendment because the original order on summary judgment came before the third-party defendants had filed an answer. Dugan's argument is meritless and is not supported by authority. We reject it accordingly.

[15] By separate order, we grant Sweeney's motion to dismiss him from this appeal. And, here, we reject Dugan's arguments relating to the content of matters that preceded her amendment of her complaint.

2. The trial court properly dismissed Spurrier.

[16] We thus turn to the two issues that are properly before us, beginning with the trial court's dismissal of Spurrier. On this issue, the trial court concluded that Dugan's inclusion of Spurrier as a party to the three claims in her amended complaint did not relate back to the date of Dugan's filing of her original complaint. Thus, the trial court concluded, Dugan's amended claims against Spurrier were brought outside the relevant statutes of limitations. We review the trial court's ruling on a motion to dismiss de novo. E.g., Safeco Ins. Co. v. Blue Sky Innovation Grp., 230 N.E.3d 898, 901 (Ind. 2024).

[17] Indiana Trial Rule 15(C) identifies three requirements for an amended complaint to relate back to the date of the original complaint when a new party is added to the amended complaint.³ A threshold requirement is that a new claim arise “out of the conduct, transaction, or occurrence set forth” in the original complaint. T.R. 15(C). The Rule then further requires that:

within one hundred and twenty (120) days of commencement of the action, the party to be brought in by amendment:

(1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and

(2) knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against him.

Id. (emphases added).

[18] Dugan's argument that the trial court erroneously dismissed Spurrier does not comply with Trial Rule 15(C)(2) on this record. As our Supreme Court has explained, Rule 15(C)(2) is a “mistake requirement” that “is concerned fundamentally with the new party's awareness that failure to join it” in the original complaint “was error rather than a deliberate strategy.” Porter Cnty. Sheriff's Dep't v. Guzorek, 857 N.E.2d 363, 371 (Ind. 2006) (quotation marks omitted). “[W]here there is a basis for the plaintiff to assert liability against the party [that is] named in a complaint, and there is no reason for another party to believe that the plaintiff did anything other than make a deliberate choice between potential defendants, the mistake requirement is not met.” Id. at 372.

[19] Dugan, the party who bears the burden to show prima facie error on appeal, has not shown that she satisfied Rule 15(C)’s mistake requirement in order to obtain the benefit of relating back to the date of her original filing. See Ind. Appellate Rule 46(A)(8)(a). That is, Dugan does not demonstrate that Spurrier knew or should have known that, but for Dugan having mistakenly omitted Spurrier as a party to the relevant claims in the original complaint, Dugan would have brought those claims against Spurrier in the first instance. Indeed, Dugan's original complaint intentionally parsed claims between the Act and all other claims, and Dugan included Spurrier and other Thurston Springer employees to her claim under the Act but included only Thurston Springer and Stucker to all of her other claims. By all appearances, Dugan took an intentional and strategic path to parsing her original claims, and there is nothing in this record to show that Spurrier had any reason to believe that Dugan's choices in the original complaint were anything other than deliberate.

[20] Nonetheless, Dugan asserts that she had an absolute right to amend her complaint. See T.R. 15(A). But Dugan's focus is misplaced. The question with respect to Spurrier is not about Dugan's right to amend; it is about Dugan obtaining the benefit of her original filing date. And there is no dispute in this appeal that, absent Dugan obtaining that benefit, her claims against Spurrier are time-barred. Accordingly, we conclude that Dugan has failed to demonstrate that the trial court's dismissal of Spurrier is erroneous, and we affirm the court's judgment.

3. The trial court properly entered summary judgment for Stucker.

[21] The final issue that is properly before us is the trial court's entry of summary judgment for Stucker on Dugan's amended complaint. As our Supreme Court has made clear:

When this Court reviews a grant or denial of a motion for summary judgment, we “stand in the shoes of the trial court.” Summary judgment is appropriate “if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” We will draw all reasonable inferences in favor of the non-moving party. We review summary judgment de novo.

Arrendale v. Am. Imaging & MRI, LLC, 183 N.E.3d 1064, 1067-68 (Ind. 2022) (citations omitted). Further, “we will affirm the trial court's ruling based on any theory supported by record evidence.” Markey v. Estate of Markey, 38 N.E.3d 1003, 1006-07 (Ind. 2015).

[22] Our consideration of this issue begins from a premise that has not been given its due consideration by Dugan in this appeal: she has settled her claims with Thurston Springer. Thus, any claims she has remaining against Stucker must be outside the scope of his employment and in his personal capacity. Cf. Burton v. Benner, 140 N.E.3d 848, 852 (Ind. 2020) (explaining respondeat superior liability).

[23] Dugan's three amended claims against Stucker are for constructive fraud, breach of fiduciary duty, and malpractice. There is no dispute between the parties that each of those three claims required Stucker to have owed a fiduciary duty to Dugan. Appellant's Br. at 39; Stucker's Br. at 39. In support of his motion for summary judgment to the trial court, Stucker conceded that, as “Dugan's Thurston Springer investment advis[o]r, Stucker owed Dugan a fiduciary duty with respect to Dugan's investments under the management of Thurston Springer ․” Appellant's App. Vol. 12, p. 219 (bold font removed). Relying on that statement on appeal, Dugan contends that the trial court erred as a matter of law when it failed to acknowledge Stucker's concession and the law underlying his concession and instead applied a different legal test to determine the existence of a duty. Appellant's Br. at 37-42.

[24] In other words, Dugan's entire argument on the existence of a fiduciary duty owed to her by Stucker is premised on Stucker's recognition that, as a Thurston Springer employee, he did owe her a fiduciary duty. But Stucker's assertions to the trial court demonstrate that he owed her a duty only in his employment capacity and not in his personal capacity. Instead of designating evidence to the contrary, Dugan attempts to hold Stucker personally liable for conduct that was within the scope of his employment. Indeed, Dugan's own assertions to the trial court and on appeal are replete with her recognition that she believed, at all relevant times, that Stucker was advising her “in his capacity as [her] financial advis[o]r” with Thurston Springer. Appellant's App. Vol. 6, p. 9.

[25] Accordingly, Stucker made a prima facie showing to the trial court that he did not owe a duty to Dugan in his personal capacity, and Dugan failed to rebut that showing. The trial court therefore properly entered summary judgment for Stucker on Dugan's remaining amended claims.

Conclusion

[26] For all of these reasons, we affirm the trial court's dismissal of Spurrier and its entry of summary judgment for Stucker.

[27] Affirmed.

FOOTNOTES

1.   Dugan moved to strike Sweeney's motion to dismiss. Our motions panel denied Dugan's motion to strike by separate order, and Dugan has not asked this panel to reconsider our motions panel's exercise of its discretion. See, e.g., Logan v. Evan, 230 N.E.3d 371, 378 n.3 (Ind. Ct. App. 2024).

2.   Insofar as the trial court's decisions on matters that arose after Dugan amended her complaint incorporated prior matters, that information is properly before us by virtue of that incorporation. But it is the post-amendment decisions that are reviewable here, not prior decisions.

3.   Trial Rule 15(C) speaks to “changing the party against whom a claim is asserted,” but we have clarified that the addition of a new defendant to a claim satisfies that language. Lake Cnty. v. Kilsurich, 182 N.E.3d 877, 881 n.3 (Ind. Ct. App. 2022).

Mathias, Judge.

Judges Brown and Kenworthy concur. Brown, J., and Kenworthy, J., concur.