Thomas L. Marshall, Jr., Appellant-Plaintiff v. MaryJane Sotero Cooper, Troy P. Tyson, and Tyson Law Firm, P.C., Appellees-Defendants (2026)

MEMORANDUM DECISION

Case Summary

[1] Thomas L. Marshall, Jr., appeals the trial court's dismissal of his claims against MaryJane Sotero Cooper, Troy P. Tyson, and Tyson Law Firm, P.C. Because we find his claims against Cooper were properly dismissed, we affirm the dismissal as to her. But we agree the court erred in dismissing his claims against Tyson and Tyson Law Firm, P.C. Thus, we affirm in part and reverse and remand in part.

Facts and Procedural History

[2] In January 2025, Marshall filed a complaint in the Marion County Superior Court against his former spouse, Cooper. See Cause No. 49D02-2501-CT-001710.¹ Cooper, who was represented by Troy P. Tyson of Tyson Law Firm, P.C. (collectively, Tyson), filed a response and counterclaims. In March, Marshall filed an amended complaint, alleging assault, defamation, intentional infliction of emotional distress, deception, and perjury. Thereafter, Marshall moved several times to further amend his complaint to add claims including abuse of process.

[3] In September 2025, while many of these motions were still pending, Marshall moved to voluntarily dismiss his complaint under Indiana Trial Rule 41, and the court dismissed his claims without prejudice. However, the action remained pending in Marion County due to Cooper's counterclaims. In November 2025, Marshall filed a motion to reinstate his complaint, although the court never ruled on this motion. For the next six months, Marshall filed a barrage of motions with the court, including motions to amend his (still dismissed) complaint to allege abuse of process, civil conspiracy, and attorney deceit, among other things. None of these motions were ruled on by the Marion County court, and many were later withdrawn by Marshall.

[4] On June 1, 2026, Marshall filed a complaint against Cooper and Tyson in the Johnson County Superior Court, alleging abuse of process, attorney deceit, and civil conspiracy. On June 4, Cooper and Tyson moved to dismiss the complaint, asserting in part that Marshall's claims were barred under Trial Rule 12(B)(8). On June 13, Marshall amended his Johnson County complaint, although his claims remained the same. On June 22, the Johnson County court granted Tyson and Cooper's motion to dismiss. Marshall now appeals.

Discussion and Decision

I. Amended Complaint

[5] As an initial matter, we address Marshall's contention that because he filed an amended complaint after Cooper and Tyson filed their motion to dismiss, their motion is “moot” and therefore should not have been granted. Appellant's Br. p. 10. As noted above, Marshall filed his complaint in the Johnson County court on June 1. A few days later, Cooper and Tyson filed a motion to dismiss. Prior to the trial court's ruling, Marshall filed his amended complaint as a matter of right under Trial Rule 15(A). Thereafter, the trial court granted the motion to dismiss.

[6] It is unclear from Marshall's argument whether he believes the trial court erroneously considered his original complaint, rather than his amended, or whether he believes the court should not have dismissed the case following the amendment without a renewed motion from Tyson and Cooper. Either way, we find no reversible error. While the trial court did not specify in its order that the operative complaint was the amended complaint, we presume trial courts know and properly apply the law. Moriarty v. Moriarty, 150 N.E.3d 616, 627 (Ind. Ct. App. 2020), trans. denied. And while it may have been better practice for Cooper and Tyson to file a renewed motion to dismiss following the amended complaint, we cannot say the trial court's dismissal without such a motion violated Marshall's substantial rights, given his amended complaint was substantively similar to the original complaint and notably did not cure the defects alleged in Cooper and Tyson's motion to dismiss. See In re Benson, 955 N.E.2d 215 (Ind. Ct. App. 2011) (no reversible error where trial court ruled on original motion, rather than the amended motion, where both motions were substantively similar and therefore any error did not affect the substantial rights of the party). We thus turn to the merits of Marshall's appeal.

II. Motion to Dismiss

[7] Marshall challenges the trial court's dismissal under Trial Rule 12(B)(8), which allows a party to move for dismissal on the grounds the same action is pending in another Indiana court. The rule applies when the parties, subject matter, and remedies are precisely or substantially the same. Beatty v. Liberty Mut. Ins. Grp., 893 N.E.2d 1079, 1084 (Ind. Ct. App. 2008). We review de novo the trial court's grant or denial of a motion to dismiss under Rule 12(B)(8). Id.

[8] We note that neither Tyson nor Cooper filed an appellee's brief. Where the appellee fails to file a brief on appeal, we may, in our discretion, reverse the trial court's decision if the appellant makes a prima facie showing of reversible error. McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind. Ct. App. 2004). In this context, prima facie error is defined as error “at first sight, on first appearance, or on the face of it.” Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct. App. 2006). This rule was established for our protection so that we can be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. McGill, 801 N.E.2d at 1251.

A. Same Parties

[9] We first address Marshall's contention that the parties in the two actions are not the same or substantially the same because Tyson was not a party to the Marion County cause. We agree that Tyson was not a party to the Marion County cause. Notably, although Marshall at one point moved to amend his complaint to add Tyson as a party, that motion was never granted, and Marshall later withdrew it. Because Tyson was not a party to the Marion County cause, the Johnson County complaint should not have been dismissed under Rule 12(B)(8) as to the claims against Tyson.²

[10] However, Cooper was a party in both causes, and the fact that one of the actions includes defendants other than Cooper—namely, Tyson—does not preclude operation of Trial Rule 12(B)(8) as to Cooper. Beatty, 893 N.E.2d at 1086. Thus, we address Marshall's additional arguments relating to his Johnson County claims against Cooper.

B. Pending Action

[11] Marshall next argues the same action is no longer “pending” in another Indiana court because he voluntarily dismissed his claims in the Marion County cause. We addressed a similar scenario in Thacker v. Bartlett, 785 N.E.2d 621 (Ind. Ct. App. 2003). There, the plaintiff filed his complaint against the defendant, and the complaint was later dismissed under Trial Rule 12(B)(6). The plaintiff then filed the same complaint against the defendant in another court, and that court later dismissed the new complaint. On appeal, we upheld the second dismissal under Trial Rule 12(B)(8). We explained,

․ because the dismissal of Thacker's original complaint was a final judgment, the original complaint was not “pending” under the strict definition of the word; but neither was the complaint totally settled. As discussed earlier, however, Thacker's original complaint was never adjudicated on the merits and Thacker theoretically remained able—with the trial court's permission—to file an amended complaint, replacing the original pleading for all purposes. Thus, Thacker could reanimate his original complaint while his new complaint was active in another court, thereby defeating the interests of fairness to litigants, comity between and among the courts of this state, and judicial efficiency. In addition, by filing a new complaint instead of petitioning to amend his original complaint, Thacker was circumventing the authority and discretion of the original trial court. For these reasons, we find that the purpose behind Trial Rule 12(B)(8) also extends to situations like this one, where a party files a completely new complaint containing precisely the same parties, subject matter, and remedies instead of amending his original complaint or appealing its dismissal for failing to state a claim.

Thacker, 785 N.E.2d at 625 (internal citations omitted).

[12] Similarly, here, Marshall's original Marion County complaint—while no longer “pending” under the strict definition of the word—is not totally settled. The cause itself is still pending due to Cooper's counterclaims. Further, Marshall's complaint was never adjudicated on the merits, and he remains theoretically able to file for reinstatement. See Trial Rule 41(F) (providing a court may set aside a dismissal “[f]or good cause shown and within a reasonable time”). Thus, allowing Marshall to dismiss his claims in the Marion County cause and refile the exact claims against Cooper in the Johnson County cause would “circumvent[ ] the authority and discretion of the original trial court.” Thacker, 785 N.E.2d at 625; see also Zavodnik v. Richards, 984 N.E.2d 699 (Ind. Ct. App. 2013) (upholding dismissal of plaintiff's complaint under Trial Rule 12(B)(8) where his original complaint was dismissed under Trial Rule 41(E) and he thereafter filed a substantially similar complaint in another court, as allowing the second complaint to proceed would circumvent the original court's authority).

[13] We therefore conclude, as the Thacker court did, that the purpose behind Trial Rule 12(B)(8) applies to this situation, and the trial court did not err in its dismissal of the claims against Cooper.³

Conclusion

[14] The trial court erred in dismissing Marshall's Johnson County claims against Tyson under Rule 12(B)(8) but did not err in so dismissing as to the claims against Cooper.⁴ We thus affirm as to the claims against Cooper, but as to the claims against Tyson we reverse and remand to the trial court for further proceedings consistent with this opinion.

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

FOOTNOTES

1.   Marshall filed a motion requesting we take judicial notice of a minute entry in Cause No. 49D02-2501-CT-001710. We grant this motion and pursuant to Indiana Evidence Rule 201 we take judicial notice of this entry as well as the chronological case summary and filings in that cause. See Kindred v. Ind. Dept. of Child Servs., 136 N.E.3d 284, 287 n.1 (Ind. Ct. App. 2019).

2.   We acknowledge there may be other reasons why Marshall's claims against Tyson in the Johnson County action should be dismissed. But while we may affirm a trial court's dismissal on any basis, we decline to do so here given the prima facie standard, as we will not become advocates for a party.

3.   Marshall also appears to argue that the claims in the two causes are not the same or substantially similar. However, his argument presumes his Marion County claims are not “pending” for purposes of Rule 12(B)(8). See Appellant's Br. p. 8. Because we have determined his Marion County claims are “pending” under Rule 12(B)(8), we will not address this argument. Additionally, we note that Marshall repeatedly asserted in his Johnson County complaint that the claims in the two causes were the same. See Appellant's App. Vol. II p. 69 (Marshall asserting he “originally filed this action ․ [in] Marion Superior Court[.]”); see also id. (Marshall asserting he “reasserts [the Marion County claims] here.”). Thus, he may not now argue a contrary position. See WorldCom Network Servs., Inc. v. Thompson, 698 N.E.2d 1233 (Ind. Ct. App. 1998) (Parties are not permitted “to maintain one position before the trial court and a contrary position on appeal.”), trans. denied.

4.   Marshall contends that even “if some abatement were warranted” the trial court abused its discretion by dismissing the case rather than ordering a stay. Appellant's Br. p. 10. He cites no authority for this contention, and we find none. We therefore decline to find the trial court erred in dismissing rather than staying the case.

Scheele, Judge.

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