[11] In this case, however, Chicago Title argues-and we agree-that the trial court was not required to convert its motion to dismiss into a summary-judgment motion. In Indiana, materials of which a trial court may take judicial notice (such as the court records from the 2013 Lawsuit) are not considered matters outside the pleading. In Davis ex relatione Davis v. Ford Motor Co. , 747 N.E.2d 1146 (Ind. Ct. App. 2001), trans. denied , we stated that when evaluating a 12(B)(6) motion to dismiss, the court may look only at the pleadings, with all well-pleaded material facts alleged in the complaint taken as admitted, supplemented by any facts of which the court will take judicial notice. Id. at 1149 (emphasis added) (citing Anderson v. Anderson , 399 N.E.2d 391, 406 (Ind. Ct. App. 1979) ). We conclude that because the extraneous matters on which the trial court relied were matters of which it could take judicial notice, it was not required to convert Chicago Titles action to a summary-judgment motion.
II. Res Judicata
[12] Defendants contend that the 2017 Lawsuit is barred by res judicata, specifically by the dismissal of the 2013 Lawsuit with prejudice. It is well-settled that a dismissal with prejudice is a dismissal on the merits and is conclusive of the rights of the parties and res judicata as to the questions which might have been litigated. Fox v. Nichter Const. Co. , 978 N.E.2d 1171, 1180 (Ind. Ct. App. 2012), trans. denied .
[13] Moss does not deny that the claims in the 2017 Lawsuit are essentially the same as he pursued in 2013, arguing only that the dismissal of the 2013 Lawsuit does not bar the 2017 Lawsuit because the Order reserved him the right to pursue claims against the Defendants in bankruptcy court. As mentioned, the Order applied to all claims between the parties subject to it excepting only [Moss]s opportunity to file claims in the pending bankruptcy case of Debtor, Moss Family Limited Partnership, et al [.], Case No. 12-32540-hcd. Appellants App. Vol. II p. 49.
When interpreting an agreed entry, we will recognize that such agreements are contractual in nature and binding on the parties. Singh v. Singh , 844 N.E.2d 516, 524 (Ind. Ct. App. 2006) (interpreting the effect of an agreed entry in the context of a dissolution of marriage settlement agreement); Battershell v. Prestwick Sales, Inc. , 585 N.E.2d 1, 4 (Ind. Ct. App. 1992), trans. denied . The interpretation or legal effect of a contract is a question of law to be determined by the court. Battershell , 585 N.E.2d at 4-5. [T]he interpretation of a contract is controlled by the intent of the parties as expressed by the clear language of the contract. [ Delgado v. Boyles , 922 N.E.2d 1267, 1270 (Ind. Ct. App. 2010), trans. denied .] Clear, plain, and unambiguous contract terms are conclusive of the parties intent, and a court will not construe the contract or consider extrinsic evidence, but will merely apply the contractual provisions as they are written. [ Fid. Nat. Title Ins. Co. v. Mussman , 930 N.E.2d 1160, 1165 (Ind. Ct. App. 2010), trans. denied ].
City of Jeffersonville v. Envtl. Mgmt. Corp. , 954 N.E.2d 1000, 1011-12 (Ind. Ct. App. 2011).
[14] We find it difficult to imagine that the reservation of rights in the Order could be any more clear that Mosss right to pursue claims against the Defendants is limited to one specific case in bankruptcy court. The Order explicitly provides that the reservation only applies to a particular bankruptcy case, language that, in our view, definitively forecloses future litigation on these claims in other forums or cases. Moss, no doubt recognizing that the reservation of rights is limited by its plain terms to bankruptcy Case No. 12-32540-hcd, urges us to infer that the reservation also covered possible future litigation in state court in the event the claims were not fully adjudicated in bankruptcy court. This interpretation of the reservation language is untenable, however, as it would require us to ignore the parties and LaPorte Superior Court 1s use of language limiting Mosss right to pursue claims to one case in bankruptcy court. If the parties had intended to reserve Mosss right to further pursue his claims in state court under any circumstances, language to that effect could easily have been used. Because such language was not used, the trial court correctly concluded that the Order is res judicata as to the 2017 Lawsuit. The trial court did not err in dismissing Mosss 2017 Lawsuit.
[15] The judgment of the trial court is affirmed.
Najam, J., and Altice, J., concur.
Order
[1] Appellee, Chicago Title Insurance Company, by counsel, filed a Motion to Publish Memorandum Decision.
[2] Having reviewed the matter, the Court finds and orders as follows:
1. The Appellees Motion to Publish Memorandum Decision is granted.
2. This Courts opinion heretofore handed down in this cause on February 19, 2019, marked Memorandum Decision, is now ordered published.
3. The Clerk of this Court is directed to send copies of said opinion together with copies of this order to the West Publishing Company and to all other services to which published opinions are normally sent.
[3] Ordered 3/13/2019.
[4] Najam, Bradford, Altice, JJ., concur.
The Anderson court relied on George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp. , 554 F.2d 551 (2nd Cir. 1977). Frey Ready-Mixed Concrete , however, does not even mention judicial notice, much less explicitly state that consideration of judicially-noticed facts is proper in a motion-to-dismiss context. Wherever the Anderson court found their support, our research has revealed a wealth of authority-in the federal courts, at least-for the proposition, dating at least as far back as 1944, in another case where a motion to dismiss which included judicially-noticeable material was premised upon res judicata. The District Court for the Western District of Missouri set the scene in this way: This venerable controversy haunts us like a ghost which cannot be laid. Once our colleague put an end to it. Twice we buried it. Twice the Court of Appeals not only refused to resurrect it, but almost spat on the grave. Here it comes again! Kithcart v. Metro. Life Ins. Co. , 62 F.Supp. 93, 93 (W.D. Mo. 1944). The court dismissed Kithcarts action on the basis that the amended petition shows on its face, when supplemented by facts of which judicial knowledge is taken , that the controversy presented is res adjudicata. Id. at 94 (emphasis added); see also, e.g. , Henson v. CSC Credit Servs. , 29 F.3d 280, 284 (7th Cir. 1994) ([W]e recently held that [t]he district court may also take judicial notice of matters of public record without converting a 12(b)(6) motion into a motion for summary judgment.) (citation omitted); MGIC Indem. Corp. v. Weisman , 803 F.2d 500, 504 (9th Cir. 1986) (On a motion to dismiss, we may take judicial notice of matters of public record outside the pleadings.) (citations omitted); Pension Benefit Guar. Corp. v. White Consol. Indus. , 998 F.2d 1192, 1196-97 (3rd Cir. 1993) (To decide a motion to dismiss, courts generally consider only the allegations contained in the complaint [...] and matters of public record.); Allen v. WestPoint-Pepperell, Inc. , 945 F.2d 40, 44 (2d Cir. 1991) (In determining the adequacy of a claim under Rule 12(b)(6), consideration is limited to the facts stated on the face of the complaint [...] and to matters of which judicial notice may be taken.) (citation omitted).
Pursuant to Indiana Rule of Evidence 201(b)(5), [a] court may judicially notice [....] records of a court of this state[,] which includes the Order for Dismissal with Prejudice issued by LaPorte Superior Court 1 on January 5, 2015. While the record does not seem to contain any explicit statement that the trial court took judicial notice of the exhibits attached to Chicago Titles 12(B)(6) motion, it seems clear that this essentially occurred. In any event, Moss does not claim that the attachments should not have been and/or were not judicially noticed, only that they qualify as extraneous.
Moss relies on the Alaska case of DeNardo v. Calista Corp. , 111 P.3d 326 (Alaska 2005), in which a stipulation included language that it did not affect plaintiffs claims against Calista Corporation and Alaska Newspapers, Inc. in ... A00-309 Civ ...., currently pending in the U.S. District Court for the District of Alaska. Id. at 332. The DeNardo court concluded that the stipulation language did not bar future proceedings in state court, as it referred to the claims pending in federal court being reserved, not the forum in which they were litigated. Id. at 333-34. Here, however, the reservation of rights preserved only Mosss right to bring whatever claims he might have in a particular case in a particular forum, not any particular claims.