Bradley White and Charles D. White, Appellants-Plaintiffs v. Mike Dale and Town of Zionsville, Appellees-Defendants (2026)

MEMORANDUM DECISION

Case Summary

[1] Bradley White (“Bradley”) and Charles D. White (“Charles”) (collectively, “Plaintiffs”) filed a complaint against the Town of Zionsville (“the Town”) and its planning and economic development director, Mike Dale (“Dale”) (collectively, “Defendants”). Defendants filed an answer and then filed a motion for judgment on the pleadings. Plaintiffs did not file a response within the twenty-day deadline, and the trial court granted Defendants’ motion. Plaintiffs then filed a motion to correct error/motion for relief from judgment, which the trial court denied.

[2] On appeal, Plaintiffs argue that the trial court erred in granting Defendants’ motion for judgment on the pleadings and in denying their motion for relief from judgment. We disagree and therefore affirm.

Facts and Procedural History

[3] On January 8, 2025, Plaintiffs filed a pro se complaint against Defendants, which they amended several times. After a July 25 pretrial conference, the trial court issued an order directing any final amended complaint to be filed within twenty days and any answer to be filed within thirty days thereafter.

[4] On August 13, Plaintiffs filed a pro se “final consolidated amended complaint” against Defendants. Appellants’ App. Vol. 3 at 197 (all caps omitted). The factual background reads in pertinent part as follows:

1. [Plaintiffs] are the owners and long-term residents [of property located on Isenhour Hills Drive in Zionsville] (the “Property”).

2. Defendant Mike Dale was, at all relevant times, the Planning and Economic Development Director for [the Town], acting under color of law and in his official capacity.

3. [The Town] is a municipal entity organized under the laws of the State of Indiana and is responsible for the acts, policies, customs, and practices of its officials, employees, and agents.

․.

5. On or about [date illegible], without providing any prior written notice, Mike Dale issued a demolition order against the Property [i.e., against an addition to Plaintiffs’ home] under Indiana's Unsafe Building Law.

6. The demolition order included a teardown deadline and was scheduled for review at a Town Council hearing just two days after the stated demolition deadline.

7. Plaintiffs were invited to attend that public hearing to defend their property and contest the demolition order.

8. Prior to the scheduled hearing, Dale, the Town Attorney, and the Town Council President held a private meeting—without notice to Plaintiffs—in violation of the Indiana Open Door Law.

9. At that meeting, the officials agreed to remove the demolition item from the public meeting agenda, thereby preventing Plaintiffs from presenting any defense, evidence, or public comment regarding the matter.

10. Plaintiffs had already removed the disputed addition from the Property before the Town meeting date, yet no official notice or written acknowledgement was provided to confirm that the unsafe building violation had been resolved.

11. Dale's actions, and the Town's failure to supervise or correct them, caused substantial financial, structural, and emotional harm, including moisture intrusion and mold growth in the remaining home structure due to the forced demolition.

12. Following these events, Mike Dale engaged in further retaliatory conduct against Plaintiffs, including providing false and misleading information to law enforcement and other Town officials.

13. On or about [October 3, 2023], Plaintiffs were subjected to false criminal charges, including a felony count, based on Dale's and/or other Town agents’ knowingly false statements.

14. The Boone County Prosecutor's Office ultimately withheld exculpatory video evidence favorable to Plaintiffs, in violation of the constitutional protections recognized in Brady v. Maryland, resulting in coerced misdemeanor plea agreements after four days of wrongful detention.

․.

16. Plaintiffs sent multiple written complaints and notices to Mayor John Stehr and members of the Town Council regarding Dale's conduct, but received no corrective action or meaningful response.

17. At all relevant times, Defendants acted willfully, wantonly, and in reckless disregard of Plaintiffs’ constitutional rights, statutory rights, and property interests.

18. Defendants’ actions were taken under color of law, in furtherance of official policies, customs, or practices, and/or were ratified by municipal ․ officials with final policymaking authority.

Evidence in support of these facts is attached as Exhibits 1-41.

Id. at 198-99 (bolding omitted). No exhibits were attached to the complaint.

[5] The complaint's thirteen counts included claims for violations of procedural and substantive due process, retaliation for protected speech, malicious prosecution, a Brady violation, inverse condemnation, abuse of Unsafe Building Law, Open Door Law violation, intentional infliction of emotional distress, negligent supervision/training, defamation, loss of business/economic interference, and declaratory and injunctive relief. Plaintiffs requested both compensatory and punitive damages.

[6] On September 11, Defendants filed an answer and asserted numerous affirmative defenses. Defendants attached five exhibits to their answer: the demolition order, Town Council meeting minutes for August 5 and 19, 2024, documents relating to Bradley's arrest, an affidavit from the Town's chief legal counsel and a tort claim notice filed by Bradley, and Bradley's judgment of conviction for Class B misdemeanor disorderly conduct.

[7] On October 23, Defendants filed a motion for judgment on the pleadings pursuant to Indiana Trial Rule 12(C), with a supporting memorandum, to which they attached the complaint, the answer, and the exhibits. A response to such a motion “must be filed within twenty days after service.” Ind. Trial Rule 6(D)(2). Plaintiffs did not timely file a response. On November 18, the trial court entered an order stating, “Court now GRANTS [Defendants’] Motion for Judgment on the Pleadings. All of [Plaintiffs’] complaints are DISMISSED as a matter of law with prejudice.” Appellants’ App. Vol. 2 at 29.

[8] On December 18, counsel entered an appearance for Plaintiffs and filed a motion to correct error pursuant to Indiana Trial Rule 59 or, in the alternative, for relief from judgment pursuant to Indiana Trial Rule 60(B)(1). In their motion to correct error, Plaintiffs argued, among other things, that because Defendants “relied upon materials extraneous to the pleadings which were not excluded, the [motion for judgment on the pleadings] should have been treated as one for summary judgment with notice provided to [Plaintiffs] so they could respond in kind.” Appellants’ App. Vol. 4 at 118. In their motion for relief from judgment, Plaintiffs argued that they were entitled to relief on the grounds that counsel's “error ․ led to incorrect calendaring [regarding] when the response to [Defendants’ motion] was due.” Id. at 134. On January 30, Defendants filed their response. On February 11, the trial court entered an order summarily denying Plaintiffs’ motion. This appeal ensued.

Discussion

Issue One: Motion for Judgment on the Pleadings

[9] Plaintiffs first challenge the trial court's order granting of Defendants’ motion for judgment on the pleadings. We review such rulings de novo. Gray v. Benham, 280 N.E.3d 309, 312 (Ind. Ct. App. 2026). Nevertheless, “it is the appellant's burden to demonstrate reversible error.” Holland v. Ketcham, 181 N.E.3d 1030, 1035 (Ind. Ct. App. 2021).

[10] Motions for judgment on the pleadings are governed by Indiana Trial Rule 12(C), which states,

(C) Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

[11] With respect to pleadings, Indiana Trial Rule 7(A) provides,

The only pleadings allowed are (1) a complaint and an answer; (2) a counterclaim and a reply to a counterclaim; (3) a cross-claim and an answer to a cross-claim; and (4) a third-party complaint, if a person not an original party is summoned under Rule 14, and a third-party answer.

Indiana Trial Rule 9.2(A) states in pertinent part, “When any pleading allowed by these rules is founded on a written instrument, the original, or a copy thereof, shall be included in or filed with the pleading. Such instrument, whether copied in the pleadings or not, shall be taken as part of the record.” Until December 31, 2024, Indiana Trial Rule 10(C) provided, “Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”¹ But as of January 1, 2025 – one week before Plaintiffs filed their initial complaint – this language was deleted from Trial Rule 10.²

[12] “A motion for judgment on the pleadings tests the sufficiency of the complaint to state a redressable claim, not the facts to support it.” City of Indianapolis v. Kahlo, 938 N.E.2d 734, 741 (Ind. Ct. App. 2010), trans. denied. “The test to be applied is whether the allegations of the complaint, taken as true and in the light most favorable to the nonmovant and with every intendment regarded in his favor, sufficiently state a redressable claim.” Id. A motion for judgment on the pleadings “should be granted only where it is clear from the face of the complaint that under no circumstances could relief be granted.” Nicholson v. Lee, 120 N.E.3d 192, 194 (Ind. Ct. App. 2019), trans. denied. When a motion for judgment on the pleadings is predicated on matters extraneous to the pleadings, the motion should be treated in the same manner as a motion for summary judgment. Kahlo, 938 N.E.2d at 741.

[13] Plaintiffs argue that Defendants’ motion for judgment on the pleadings was predicated on matters extraneous to the pleadings that the trial court did not exclude, and thus the court should have treated the motion as a motion for summary judgment and given them a reasonable time to present material made pertinent to such a motion. More specifically, Plaintiffs assert that the exhibits attached to Defendants’ motion are extraneous to the pleadings because they are not “written instruments” and their complaint was not “founded” on any of them for purposes of Trial Rule 9.2(A).

[14] Defendants contend that this assertion “fails at least with respect to the Demolition Order, as [Plaintiffs’] claims based on procedural and substantive due process, inverse condemnation, and the Unsafe Building Law arise out of and are founded on Dale's issuance of the Demolition Order.” Appellees’ Br. at 17. We agree with Plaintiffs that although the demolition order may “relate to” those claims, it is not the order itself “that gave rise to the complaint but rather actions taken by the government.” Appellants’ Br. at 29. Accordingly, we also agree with Plaintiffs that their complaint was not “founded” on the order for purposes of Trial Rule 9.2(A). See, e.g., Kashman v. Haas, 766 N.E.2d 417, 420- 21 (Ind. Ct. App. 2002) (concluding that home buyers’ complaint against sellers for breach of contract and fraud based on undisclosed termite damage was not founded on a “Terminex Inspection Graph” attached to the complaint for purposes of Trial Rule 9.2(A); the graph was “merely evidence that [s]ellers knew of existing termite damage to the home”); Houin v. Bremen State Bank, 495 N.E.2d 753, 756 (Ind. Ct. App. 1986) (concluding that a bank that brought an action on a written guaranty should have attached the guaranty to its complaint pursuant to Trial Rule 9.2(A) because the scope of the guarantor's “duty [was] completely governed by the terms of this instrument”).³ Defendants make no argument regarding the other exhibits, which clearly are not written instruments on which Plaintiffs’ complaint was founded. Therefore, we conclude that all the exhibits were matters outside the pleadings for purposes of Trial Rule 12(C).

[15] The order on Defendants’ Trial Rule 12(C) motion is silent as to whether the trial court excluded the exhibits. Plaintiffs presume that the court did not exclude them, citing Bledsoe v. Fleming, 712 N.E.2d 1067, 1070 (Ind. Ct. App. 1999) (“On the record before us, the trial judge expressly indicated that she was basing her decision solely on the pleadings, thus properly treating Fleming's motion as a Rule 12(C) motion for judgment on the pleadings.”). We note, however, that “we generally presume trial courts know and follow the applicable law[,]” Ramsey v. Ramsey, 863 N.E.2d 1232, 1239 (Ind. Ct. App. 2007), and this “is one of the strongest presumptions applicable to the consideration of a case on appeal.” Baker v. Baker, 488 N.E.2d 361, 364 (Ind. Ct. App. 1986). Plaintiffs can only speculate that the trial court did not exclude the exhibits in considering Defendants’ motion for judgment on the pleadings, and thus they have failed to overcome the presumption that the trial court followed the applicable law and excluded the exhibits.⁴

[16] Plaintiffs’ challenge to the trial court's ruling on Defendants’ motion is devoted almost entirely to addressing whether the exhibits are extraneous to the pleadings and responding to the arguments that Defendants made about the exhibits in their supporting memorandum. Plaintiffs’ initial brief offers little in the way of argument regarding the actual merits of the trial court's dismissal of their numerous claims against Defendants.⁵ Indeed, Plaintiffs’ sole argument in this vein is that Defendants erred in equating their allegation that Dale was acting under color of law with an allegation that Dale was acting within the scope of his employment, which would preclude recovery under Indiana Code Section 34-13-3-5(b) (“A lawsuit alleging that an employee acted within the scope of the employee's employment bars an action by the claimant against the employee personally.”). Even assuming this to be true, Plaintiffs have otherwise failed to establish that their allegations regarding Dale's conduct sufficiently state redressable tort claims. In sum, Plaintiffs have failed to carry their burden of demonstrating reversible error with respect to the trial court's granting of Defendants’ motion for judgment on the pleadings.

Issue Two: Motion for Relief from Judgment

[17] Plaintiffs also challenge the trial court's denial of their motion for relief from judgment. We review such rulings for an abuse of discretion. Berg v. Berg, 170 N.E.3d 224, 227 (Ind. 2021). An abuse of discretion occurs “where the trial court's judgment is clearly against the logic and effect of the facts and circumstances before it or where the trial court errs on a matter of law.” Id. (quoting Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013)).

[18] Plaintiffs sought relief under Trial Rule 60(B)(1), which states, “On motion and upon such terms as are just the court may relieve a party or his legal representative from a judgment, including a judgment by default, for ․ mistake, surprise, or excusable neglect[.]” In the motion for relief from judgment, Plaintiffs’ counsel conceded that “it was her error that led to incorrect calendaring when the response to [Defendants’ motion for judgment on the pleadings] was due.” Appellants’ App. Vol. 4 at 133-34. On appeal, Plaintiffs cite no authority for the proposition that this error constituted “mistake, surprise, or excusable neglect” for purposes of Trial Rule 60(B)(1). Consequently, we find this argument waived. Ludwig v. Flaherty & Collins, Inc., 279 N.E.3d 991, 1006 (Ind. Ct. App. 2026), trans. denied. We therefore affirm the trial court in all respects.

[19] Affirmed.

[20] I concur with the majority's conclusion that the Plaintiffs’ complaint was not founded on the demolition order for purposes of Trial Rule 9.2(A) and that all the exhibits were matters outside the pleadings for purposes of Trial Rule 12(C). However, I respectfully dissent from the majority's conclusion that Plaintiffs failed to overcome the presumption that the trial court followed the applicable law and excluded the exhibits.

[21] Neither of the cases cited by the majority for the idea that we presume trial courts know and follow the applicable law addressed the context involving whether a motion for judgment on the pleadings with attached exhibits should be treated as a motion for summary judgment. See Ramsey v. Ramsey, 863 N.E.2d 1232 (Ind. Ct. App. 2007); Baker v. Baker, 488 N.E.2d 361 (Ind. Ct. App. 1986).

[22] Trial Rule 12(C) provides: “If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” (Emphasis added). The trial court's order is silent as to whether it excluded the exhibits that were attached to Defendants’ motion. This Court has previously confronted similar situations and has treated the motion as one for summary judgment. See Osadchuk v. Rice, 203 N.E.3d 493, 502-503 (Ind. Ct. App. 2023) (observing that “both parties relied on various pleadings and exhibits” and the trial court “did not exclude any of those submitted materials” and “issued an order summarily granting” the motion for judgment on the pleadings; and holding that the trial court “should have treated the [motion for judgment on the pleadings] as a motion for summary judgment”); Holmes v. Celadon Trucking Servs. of Ind., Inc., 936 N.E.2d 1254, 1255-1256 (Ind. Ct. App. 2010) (observing that the trial court granted a motion for judgment on the pleadings and dismissed the case with prejudice; citing Trial Rule 12(C); observing that both parties designated evidence outside the pleadings; noting that “nothing in the record suggests that the trial court excluded these documents”; and holding, “[t]herefore, we shall treat [the] motion for judgment on the pleadings as a motion for summary judgment”).

[23] Further, in their Memorandum in Support of Motion for Judgment on the Pleadings Pursuant to Indiana Trial Rule 12(C), Defendants asserted under the heading “Standard on Motion for Judgment on the Pleadings” that the court “can consider the Amended Complaint, the Answer, and any documents attached thereto” and specifically mentioned “Bradley's Tort Claim Notice, the Demolition Order, the Probable Cause Affidavit that led to Bradley's arrest, the Town Council meeting minutes which is the focus of the White's [sic] Open Door claim, and the criminal docket related to the disorderly conduct plea and conviction.” Appellants’ Appendix Volume 4 at 45-46. In light of the language in Defendants’ memorandum, Defendants encouraged a summary judgment ruling.

[24] To the extent the majority cites Trial Rule 6(D), that Rule provides that “[t]hese deadlines do not apply to ․ summary judgment motions under Rule 56 ․” Trial Rule 56(C) provides: “An adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits.” (Emphasis added). The record reveals that Defendants filed their motion on October 23, 2025, and the trial court granted the motion less than thirty days later on November 18, 2025. Under these circumstances, I would reverse and remand to provide Plaintiffs an opportunity to file a response to Defendants’ motion. See Noons v. First Merchants Bank, 268 N.E.3d 1250, 1255 (Ind. Ct. App. 2025) (holding that the trial court's grant of summary judgment was premature, reversing the trial court's grant of summary judgment, and remanding to the trial court for further proceedings); 487 Broadway Co., LLC v. Robinson, 147 N.E.3d 347, 352-354 (Ind. Ct. App. 2020) (holding that the trial court erred when it entered summary judgment without having allowed the non-movant thirty days to respond as provided in Trial Rule 56(C), reversing entry of summary judgment, and remanding).

FOOTNOTES

1.   This language is substantially similar to that currently used in Federal Rule of Civil Procedure 10(c).

2.   The current version of Trial Rule 10(C) governs print size for pleadings, motions, memoranda, and briefs. Several cases state that, in addition to the filings listed in Trial Rule 7(A), pleadings “consist of any written instruments attached to a pleading, pursuant to Ind. Trial Rule 9.2.” Consol. Ins. Co. v. Nat'l Water Servs., LLC, 994 N.E.2d 1192, 1196 (Ind. Ct. App. 2013) (citing, inter alia, the pre-2025 version of Trial Rule 10(C)), trans. denied; see also Capalla v. Best, 198 N.E.3d 26, 32 (Ind. Ct. App. 2022) (citing Consol. Ins. Co. and the pre-2025 version of Trial Rule 10(C)); Davis v. Edgewater Systs. for Balanced Living, Inc., 42 N.E.3d 524, 526 (Ind. Ct. App. 2015) (citing the pre-2025 version of Trial Rule 10(C)); Bell v. Bryant Co., 2 N.E.3d 716, 719 (Ind. Ct. App. 2013) (same); Graves v. Kovacs, 990 N.E.2d 972, 976 (Ind. Ct. App. 2013) (same). In light of the 2025 revisions to Trial Rule 10, this language may no longer be an accurate statement of law.

3.   We need not address the merits of Plaintiffs’ argument that the demolition order is not a “written instrument” for purposes of Trial Rule 9.2(A). But we note that long ago our Supreme Court held that trial court judgments are not considered written instruments in this context. See Lytle v. Lytle, 37 Ind. 281, 283 (1871) (“[A]fter mature consideration, we have come to the conclusion that a proper construction [of a statute substantially similar to Trial Rule 9.2(A)], and a regard for convenience and economy in practice, requires us to hold that a judgment is not a ‘written instrument’ within the meaning of that [statute]. Deeds, mortgages, bonds, written contracts, promissory notes, bills of exchange, etc., are written instruments. Judgments are in writing, but are not usually called written instruments. The legislature, in framing and enacting the [statute], evidently had in view only instruments of which ‘the original, or a copy,’ might be filed, as the party might elect. The original of a judgment cannot be filed. It is frequently the case that the judgment which is pleaded is a judgment of a court of the same county, and often it is a judgment of the same court in which the pleading is filed. In such cases it is unnecessarily inconvenient and expensive to the party to be compelled to procure a transcript of the record pleaded, which must be a complete record, to be filed with the pleading. If the record is of the court of another county in the State, or of a foreign state, the party pleading it will, of course, have to obtain a copy as evidence, whether it be filed with the pleading or not.”).

4.   The dissent suggests that the axiom stated in Ramsey and Baker should not be applied in this particular context. We respectfully disagree. Appellate courts always expect, and indeed even presume, that trial courts know and follow the applicable law. And, because we have a presumption, it is incumbent upon the party challenging the order to make some showing that the attached documents were considered by the trial judge in making his decision on the pleadings. The Plaintiffs in this case failed to make that showing. But presumptions aside, three factors support a determination that the trial court judge in this case knew and followed the applicable law. The first is that there is simply no evidence in the record that the court considered the exhibits. Secondly, the court's order specifically states, “Court now GRANTS Defendant[s’] Motion for Judgment on the Pleadings.” Appellants’ App. Vol. 2 at 29. From this, it is reasonable to infer that the court properly excluded the exhibits and treated the motion as one for judgment on the pleadings. Lastly, the trial court's order was issued after the twenty-day deadline for a response to a motion for judgment on the pleadings and before the thirty-day deadline for a response to a motion for summary judgment. We do not believe that this was happenstance. Certainly, the better practice would be for a trial judge to affirmatively state that documents outside the pleadings were not considered. Yet from this, it is likewise reasonable to infer that the court properly excluded the exhibits and treated the motion as one for judgment on the pleadings. We should not automatically assume that every time a party attaches a document to a pleading that the matter has been converted into a motion for summary judgment.

5.   To the extent that Plaintiffs’ reply brief offers more detailed arguments regarding their claims, we note that an appellant may not correct the deficiencies of his initial brief in his reply brief, because the appellee would have no opportunity to respond. Michaels v. Johnson, 223 N.E.2d 585, 587 (Ind. Ct. App. 1967).

Bailey, Judge.

Weissmann, J., concurs. Brown, J., concurs in part and dissents in part with separate opinion.