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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE: WILLIAM R. PINNER Indianapolis, Indiana ATTORNEY FOR APPELLEE: WILLIAM E. LUKENS American Family Insurance Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
WILLIAM R. PINNER, Appellant-Plaintiff, vs. PATRICK S. SKIDMORE and AMERICAN FAMILY INSURANCE CO., Appellee-Defendant. ) ) ) ) ) ) ) ) ) )

No. 49A05-0702-CV-98

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Robyn Moberly, Judge The Honorable Kimberly D. Mattingly, Commissioner Cause No. 49D06-0004-CT-587

December 27, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Judge

William Pinner appeals the trial court's grant of a motion to dismiss in his action against Patrick Skidmore. Pinner raises one issue, which we revise and restate as whether the trial court erred by granting the motion to dismiss under Ind. Trial Rule 12(B)(6). We affirm. The relevant facts follow. On January 13, 2006, Pinner filed suit against Skidmore and American Family Insurance. On June 23, 2006, the trial court granted a motion to dismiss the action against American Family Insurance. After Skidmore passed away on December 10, 2006, Skidmore's counsel filed a motion to dismiss alleging that "Skidmore is no longer a proper party under this cause" and that "[Pinner] has not taken affirmative steps to substitute the necessary party in this action." Appellant's Appendix at 9. At the bench trial on January 17, 2007, Pinner moved for a continuance because he had not yet located his medical records. The trial court denied the motion for a

continuance and granted the motion to dismiss Pinner's claim against Skidmore. The issue is whether the trial court erred by granting the motion to dismiss. "Trial Rule 12 authorizes a party to present by motion certain defenses, one of which is specified by subsection 12(B)(6): `Failure to state a claim upon which relief can be granted . . . .'" Meyers v. Meyers, 861 N.E.2d 704, 705-706 (Ind. 2007). A motion to dismiss asserting Rule 12(B)(6) challenges the legal sufficiency of a complaint. Id. (citing Trail v. Boys and Girls Clubs of Northwest Indiana, 845 N.E.2d 130, 134 (Ind. 2006)). In ruling on such a motion to dismiss, "a court is required to take as true all 2

allegations upon the face of the complaint and may only dismiss if the plaintiff would not be entitled to recover under any set of facts admissible under the allegations of the complaint." Id. (quoting Huffman v. Office of Envtl. Adjudication, 811 N.E.2d 806, 814 (Ind. 2004)). The standard of review on appeal of a trial court's grant of a motion to dismiss for the failure to state a claim is de novo and requires no deference to the trial court's decision. Sims v. Beamer, 757 N.E.2d 1021, 1024 (Ind. Ct. App. 2001). In reviewing such motions, all reasonable inferences must be drawn in favor of the nonmoving party. Meyers, 861 N.E.2d at 706 (citing Huffman, 811 N.E.2d at 814; Trail, 845 N.E.2d at 134). Pinner argues that the trial court should not have dismissed his case for failing to substitute the necessary party because "the Court should have order [sic] substitution of the proper parties." Appellant's Brief at 6. Ind. Code

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