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When a complaining party remains able to file an amended complaint, a dismissal under Ind. Trial R. 12(B)(6) is without prejudice.
Plaintiffs and Defendant owned real property adjoining each other. Their dispute centered around a shared driveway located on both parcels of property, with the majority on Defendant's property. Problems began when Defendant started blocking Plaintiffs' access. They sued, alleging a perpetual easement under a written agreement. The agreement had been recorded by a former owner of Defendant's property a minute after the deed, therefore transferring it. Defendant did not know of the agreement when purchasing his property. Plaintiffs’ complaint had been dismissed pursuant to Indiana Trial Rule 12(B)(6). Plaintiffs then filed an amended complaint alleging in substance that Defendant was trespassing upon their property. Defendant filed a motion for summary judgment, which was denied by the trial court. Defendant appealed, arguing that the driveway easement agreement was recorded outside his chain of title, and therefore, not binding on him. Defendant further contended that he was entitled to summary judgment because the Plaintiffs’ claim was barred by the doctrine of election of remedies.
The Court noted that in order to determine the chain of title, the prospective purchaser must go to the recorder's office and search through the grantor index, beginning with the person who received the grant of land from the United States and continuing until the conveyance of the tract in question. The particular grantor's name was not searched thereafter. In this case, the Court held that Defendant would not have discovered the driveway easement agreement because it had been recorded by the former owner a minute after the deed, therefore transferring it. Therefore, the easement agreement was not within Defendant’s chain of title and he cannot be deemed to have constructive notice of its existence. Hence, the Court held that the trial court erred in denying Defendant’s motion for summary judgment with respect to the issue of the driveway easement agreement. Anent the second issue, the Court held that a dismissal under Trial Rule 12(B)(6) was without prejudice, and hence, it did not act as an adjudication on the merits – a prerequisite to invoking the election of remedies doctrine. Accordingly, the Court held that the Plaintiffs’ claim was not barred by the election of remedies doctrine.