Larry A. Fitzgerald, Appellant-Plaintiff v. LLC (2025)

MEMORANDUM DECISION

[1] Larry A. Fitzgerald appeals the trial court's order dismissing most counts of his second amended complaint with prejudice following defendants’ motion to dismiss under Indiana Trial Rule 12(B)(6). Although the trial court purported to apply the Rule 12(B)(6) standard, it impermissibly departed from that standard by weighing evidence, making factual determinations, and considering materials outside the pleadings without providing the parties the opportunity to submit evidence to survive a summary judgment ruling. We accordingly reverse and remand.

Facts and Procedural History

[2] Fitzgerald filed his initial complaint in May 2019. After multiple motions to dismiss, amendments of the complaint, and other procedural maneuvers spanning several years, Fitzgerald filed an amended complaint on June 28, 2023. The amended complaint named nine defendants, including Apollo Opportunity Fund LLC (“Apollo”), Berkeley Asset Fund LLC (“Berkeley”), Darko Ventures LLC-S Series 101 (“Darko”), Lehman Series III Opportunity Fund LLC (“Lehman”), James S. Bleier, Jr., and Katherine Bleier (collectively, “Defendants”). In that complaint, Fitzgerald alleged he sold a property located on Park Avenue in Indianapolis (“the Park Property”) to Darko for $175,000.00. He incorporated by reference the purchase agreement for the Park Property that he had attached to the original complaint. Fitzgerald alleged $60,000.00 of the purchase price was intended to reimburse Fitzgerald for a personal loan that Fitzgerald took out to rescue the Park Property from a tax sale. Fitzgerald alleged the Park Property then changed hands several times through a complex series of transfers and assignments. Fitzgerald asserted: “No Defendant paid the agreed purchase price of $175,000.00.” (App. Vol. 3 at 217.) Fitzgerald asserted that a settlement, hold harmless, indemnification, and release agreement (“Settlement Agreement”) that he “allegedly signed ․ falsely stated that there were in excess of $450,000.00 judgments and/or liens and a tax lien from the United States Department of Treasury” against the Park Property. (Id. at 218.) Fitzgerald also alleged the Defendants worked to fraudulently transfer a property he owned on Oaklandon Road in Indianapolis (“the Oaklandon Property”) away from him. In total, Fitzgerald alleged nine counts, including breach of contract, theft, forgery, and violations of the Deception Against Seniors Consumer Protection Act ¹ and the Indiana Crime Victims Relief Act.²

[3] On September 22, 2023, Darko, James Bleier, and Katherine Bleier moved to dismiss Fitzgerald's complaint pursuant to Indiana Trial Rule 12(B)(6) (“the Darko motion”). Lehman, Apollo, and Berkeley filed a motion to dismiss in which they joined the Darko motion and advanced arguments seeking dismissal of Fitzgerald's claims related to the Oaklandon Property. The alleged Settlement Agreement, which Fitzgerald had not attached to the amended complaint, was attached to the Darko motion. The Defendants argued the Settlement Agreement superseded the original purchase agreement for the Park Property. The Settlement Agreement said a title search performed after Fitzgerald and Darko executed the purchase agreement for the Park Property revealed the Park Property was encumbered by more than $450,000.00. It stated:

As a result, Fitzgerald acknowledges that he is not able to fulfill the terms of said Purchase Agreement and agrees that in lieu of litigation, discloses to Darko and the Parties mutually agree that Fitzgerald shall exchange any and all real estate Fitzgerald owns or has an interest in to satisfy any existing for [sic] future indebtedness, including but not limited to any liens, judgments and encumbrances with respect to [the Park Property].

(App. Vol. 4 at 18.) The Defendants asserted Fitzgerald renounced his ownership of the Oaklandon Property pursuant to the terms of the Settlement Agreement and all subsequent transfers of the Oaklandon Property were legal.

[4] Fitzgerald filed a response to the motions to dismiss in which he argued that his complaint “makes it clear that all Defendants are interrelated and connived and conspired with each other in the actions alleged.” (Id. at 30.) He asserted the Settlement Agreement “has been judicially determined to be invalid.” (Id. at 33.) Fitzgerald did not submit designated evidence with his response.

[5] The trial court heard argument on the motions to dismiss and then entered its order on November 9, 2023. It characterized the Settlement Agreement as an “undisputed” exhibit and stated it viewed “this Order under Trial Rule 12(B)(6).” (App. Vol. 2 at 36.) The trial court ruled:

Count I. Breach of Contract

This Count involves a Purchase Agreement entered on September 26, 2018, for the Park Property. As previously discussed, this Agreement was subsumed by the Settlement Agreement entered less than two months later on November 15, 2019. Neither Agreement discusses a personal loan of $60,000.00. The Settlement Agreement identified in “excess[”] of $450,000.00 in “defects encumbered” in the Park Property. To the extent Plaintiff could have remedied any failure to mention a $60,000.00 personal loan in the Purchase Agreement, he chose not to do so in the Settlement Agreement. Both Agreements involve real property implicating the Statute of Frauds. Since the loan was not addressed in the Settlement Agreement, Plaintiff's claim for breach of contract fails under the Statute of Frauds and is dismissed with prejudice as to all Defendants. The Motion to Dismiss Count I is GRANTED as to all Defendants with prejudice.

Count II. Breach of Fiduciary Duties

This Count was not discussed by the Defendants[’] Motions to Dismiss.

Count III. Lack of Consideration

This Count involves the Oaklandon Assignment and the Satisfaction of Mortgage of the Oaklandon Property. There seems to be no dispute that Fitzgerald had fulfilled the terms of the land contract and pursuant to the Settlement Agreement he transferred his interest in both the Park and Oaklandon Property to Apollo. Fitzgerald's interest was in satisfying in excess of $450,000.00 in encumbrances on the Park Property. His interest was not in securing title to the Oaklandon Property in his name. The Motion to Dismiss Count III is GRANTED as to all Defendants with prejudice.

Count IV. Deception Against the Senior Consumer Protection Act

This Count alleges deception, but the issue is who is deceiving who? Originally, Fitzgerald entered a Purchase Agreement for $175,000.00 in outstanding encumbrances on the Park Property. Defendant Darko counters with a title search document suggesting outstanding liens/debts significantly greater than $175,000.00. Presumably in reliance on the title search, the parties enter [sic] the Settlement Agreement indicating outstanding debts on the Park Property exceeded $450,000.00. A tacit acknowledgment of the heightened amount of debt, Fitzgerald turned over his interest in the Oaklandon Property to complete the deal. Without more, it appears that the parties negotiated the Agreement as businessmen. Plaintiff disputes the amount of the encumbrances (¶87 of his Court Ordered Complaint), but that alone doesn't suggest that this was a consumer transaction. The Motion to Dismiss Count IV is GRANTED with prejudice as to all Defendants.

Count V. Theft

Fitzgerald and Darko entered a Settlement Agreement authorizing a transfer of control (ownership) by Fitzgerald to Darko and “its agents or assigns” of both the Park and Oaklandon Properties. In exchange Plaintiff was relieved of in excess of $450,000.00 in encumbrances on the Park Property. Nothing has been alleged by Fitzgerald that he did not freely enter the Settlement Agreement, nor has he alleged that Darko did not fulfill their end of the bargain. No allegations have been made that Fitzgerald was not relieved of those encumbrances exceeding $450,000.00. That Darko or any of the Defendants may have negotiated significant reductions in the encumbrances is of no consequence. The Motion to Dismiss Count V is GRANTED with prejudice as to all Defendants.

Count VI. Forgery

It is not clear why Apollo (assumed to be an “agent or assign” of Darko) needed a quitclaim from the previous owner of the Oaklandon Property, Margaret Offenbacker, on December 28, 2018. Regardless, the Maggie Offenbacker Affidavit strongly suggests her name was forged. However, even Ms. Offenbacker believed Fitzgerald owned the Oaklandon Property. (Offenbacker Affidavit ¶9.) Fitzgerald, himself, believed he owned the Oaklandon Property. One month prior to the alleged forgery, on November 15, 2018, in accordance with the Settlement Agreement, Fitzgerald entered a Satisfaction of Mortgage on the Oaklandon Property, and assigned his interest in the Oaklandon Property to Apollo.

Even if Ms. Offenbacker were interested in pursuing a forgery claim, it seems the claim would involve first and foremost, the notary, Jermaine Clay.

On January 2, 2019, Apollo quitclaimed [the Oaklandon Property] to Berkeley. Plaintiff may be suspicious of this quitclaim, and all subsequent actions undertaken by the Defendants, but nothing alleged supports actionable claims for forgery. The Motion to Dismiss Count VI is GRANTED with prejudice as to all Defendants.

Count VII. Conspiracy to Commit Fraud and Theft

Plaintiff alleges fraudulent representations in the Settlement Agreement. It is alleged that the representations of Darko and its Agent, James Bleier, were false and induced Fitzgerald to enter the Settlement Agreement. Specifically, the Park Property was not encumbered by in “excess of $450,000.00” to include tax liens of “not less than $240,000.00.” On that same date, Plaintiff alleges that Darko conspired with Apollo to have Fitzgerald quitclaim the Park Property to Apollo through the Jarvis Clay POA. The Motion to Dismiss Count VII is DENIED as to the allegation of fraud only against the following Defendants: Darko, James Bleier and Apollo.

The Motion to Dismiss Count VII is GRANTED as to Berkeley, Lehman, and Katharine Bleier with prejudice.

Count VIII. Indiana Crime Victims Relief Act

Based on the previous discussion regarding Counts [sic] V Theft and Count VI Forgery, the Motion to Dismiss Count VIII is GRANTED as to all Defendants with prejudice.

Count IX. Unjust Enrichment

Plaintiff alleges that the Defendants were unjustly enriched as a result of misrepresentations made in the Settlement Agreement. To the extent Defendants Darko, James Bleier and Apollo may have been unjustly enriched as a result of misrepresentations in the Settlement Agreement, Plaintiff has a cognizable claim. The Motion to Dismiss Count VIII is DENIED as to Defendants Darko, James Bleier and Apollo.

The Motion to Dismiss Count IX is GRANTED as to Berkeley, Lehman, and Katharine Bleier with prejudice.

(Id. at 38-41) (internal footnotes omitted). Fitzgerald filed a motion to reconsider and/or correct error. The trial court denied Fitzgerald's motion and declared its order to be a final and appealable order pursuant to Indiana Trial Rule 54(B).

Discussion and Decision

[6] Indiana Trial Rule 12(B)(6) allows a party to move to dismiss a complaint for “[f]ailure to state a claim upon which relief can be granted[.]” We review a trial court's ruling on a motion to dismiss pursuant to Rule 12(B)(6) de novo. Lockhart v. State, 38 N.E.3d 215, 217 (Ind. Ct. App. 2015). “Rule 12(B)(6) tests the legal sufficiency of a complaint: that is, whether the allegations in the complaint establish any set of circumstances under which a plaintiff would be entitled to relief.” Arflack v. Town of Chandler, 27 N.E.3d 297, 302 (Ind. Ct. App. 2015). “In reviewing the complaint, we take the alleged facts to be true and consider the allegations in the light most favorable to the nonmoving party, drawing every reasonable inference in that party's favor.” Bellwether Props., LLC v. Duke Energy Ind., Inc., 87 N.E.3d 462, 466 (Ind. 2017). “We will affirm a dismissal under Trial Rule 12(B)(6) only if it is apparent that the facts alleged in the complaint are incapable of supporting relief under any set of circumstances.” Lockhart, 38 N.E.3d at 217.

[7] The trial court's conclusion that the validity of the Settlement Agreement was “undisputed,” (App. Vol. 2 at 36), is wrong. Fitzgerald alleged the Settlement Agreement was fraudulent. In paragraph 23 of Fitzgerald's amended complaint, he wrote:

In a Settlement, Hold Harmless, Indemnification and Release Agreement allegedly signed by Mr. Fitzgerald and allegedly read to him by Fall in the presence of Bleier, or his father, the Defendants falsely stated that there were in excess of $450,000.00 judgments and/or liens and a tax lien from the United States Department of Treasury.

(App. Vol. III at 218.) Fitzgerald alleged that he never received the agreed $175,000.00 purchase price for the Park Property, and he further alleged the Settlement Agreement was a device used by the various defendants to cheat him out of payment for the Park Property and the Oaklandon Property. A trial court can convert a Trial Rule 12(B)(6) motion into a Rule 56 summary judgment motion and consider matters outside the pleadings, but if it chooses to do so, “all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” T.R. 12(B). Because the trial court did not do so here, its conclusion at the pleadings stage that the Settlement Agreement precluded most of Fitzgerald's claims was error. See, e.g., Lanni v. Nat'l Collegiate Athletic Ass'n, 989 N.E.2d 791, 797 (Ind. Ct. App. 2013) (holding trial court erred when it considered matters outside the pleadings in relation to defendant's Rule 12(B)(6) motion but did not provide the plaintiff with a reasonable opportunity to present pertinent Rule 56 material in response to the motion).

[8] Moreover, the trial court's order is logically inconsistent. The order allows Fitzgerald's Count VII (conspiracy to commit fraud and theft) to continue against Darko, James Bleier, and Apollo. The alleged conspiracy involved in Count VII was that those defendants falsely asserted the Park Property was encumbered by $450,000.00 and transferred the Park Property away from Fitzgerald without paying him the purchase price. Allowing such a claim to move forward necessarily involved assuming the Settlement Agreement was fraudulent. However, the trial court's resolution of the other counts assumed the Settlement Agreement was valid and subsumed the Park Property purchase agreement. By allowing Count VII to move forward against some of the defendants, the trial court acknowledged the validity of the Settlement Agreement was not “undisputed[.]” (App. Vol. 2 at 36.) The trial court should have presumed the Settlement Agreement was invalid in resolving the Defendants’ Rule 12(B)(6) motions and erred in dismissing most of Fitzgerald's complaint based on the Settlement Agreement. Therefore, we reverse the trial court and remand for further proceedings consistent with this opinion. See, e.g., Jacob v. Vigh, 147 N.E.3d 358, 361-62 (Ind. Ct. App. 2020) (holding plaintiff stated claim upon which relief may be granted when one presumed the truth of the facts alleged in the complaint).

Conclusion

[9] Rather than accepting the facts alleged in the complaint as true and assessing whether they stated a possible claim for relief, the trial court erred by making a factual determination that undermined some of Fitzgerald's claims. That erroneous factual determination also resulted in logical inconsistency in the trial court's rulings regarding different Counts in Fitzgerald's complaint. Accordingly, we reverse the trial court's order and remand for further proceedings consistent with this opinion.

[10] Reversed and remanded.

FOOTNOTES

1.   Ind. Code § 24-4.6-6-1, et seq.

2.   Ind. Code § 32-21-1-1.

May, Judge.

Judges Tavitas and DeBoer concur. Tavitas, J., and DeBoer, J., concur.