FILED
Sep 04 2026, 8:28 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Court of Appeals of Indiana
Tri-State Painting Co. Inc.,
Appellant-Plaintiff
v.
Oak Ridge Foam & Coating Systems, Inc., Evansville
Vanderburgh School Building Corporation, ARC Construction
Co., and River Town Construction, LLC,
Appellees-Defendants
September 4, 2026
Court of Appeals Case No.
25A-PL-2410
Appeal from the Vanderburgh Superior Court
The Honorable Jillian N. Kratochvil, Judge
Trial Court Cause No.
82D06-2402-PL-856
Opinion by Judge Kenworthy
Court of Appeals of Indiana Opinion 25A-PL-2410 September 4, 2026 Page 1 of 16
Judges Weissmann and DeBoer concur.
Kenworthy, Judge.
Case Summary
[1] Evansville Vanderburgh School Corporation (the “School”) undertook stadium
bleacher refinishing projects at two of its high schools. The School hired River
Town Construction, LLC (“River Town”) as the contractor for one project and
ARC Construction Co., Inc. (“ARC”) as the contractor for the other. River
Town and ARC each subcontracted with Tri-State Painting Co., Inc. (“TriState”) for Tri-State to provide labor and materials to coat concrete steps,
walkways, and seating in the stadiums. Tri-State obtained the coating product
from Oak Ridge Foam & Coating Systems, Inc. (“Oak Ridge”) and applied it at
both stadiums. The coating failed to perform as expected.
[2] Tri-State filed a complaint against the School, River Town, ARC, and Oak
Ridge (collectively, the “Defendants”). The Defendants asserted an array of
cross-claims and counterclaims. Relevant to this appeal, River Town and ARC
(collectively, the “Contractors”) each asserted counterclaims against Tri-State
alleging (1) Tri-State breached the subcontracts, and (2) they were entitled to
indemnification and a defense from Tri-State for cross-claims asserted against
them by the School.
Court of Appeals of Indiana Opinion 25A-PL-2410 September 4, 2026 Page 2 of 16 [3] The Contractors then moved for judgment on the pleadings, seeking judgment
in their favor on their counterclaims. After a hearing, the trial court granted the
Contractors’ motions—awarding judgment for the Contractors against Tri-State
for breach of contract in an amount to be determined later and ordering TriState to indemnify and defend the Contractors against all claims.
[4] Tri-State sought and the trial court granted certification of these orders for
interlocutory appeal, and this Court accepted jurisdiction. On appeal, Tri-State
raises several issues, of which we find the following consolidated issue
dispositive: Did the trial court err in granting judgment on the pleadings on the
Contractors’ counterclaims? We reverse and remand.
Facts and Procedural History 1
[5] In 2020, the School contracted with River Town to complete a stadium
refinishing project at Reitz High School and with ARC to do the same at Bosse
High School (collectively, the “Projects”). In turn, the Contractors
subcontracted with Tri-State to provide labor and materials for coating the
concrete steps, walkways, and seating at the stadiums. The subcontracts are not
identical but contain many similar provisions, including for indemnity and
defense.
1
We held oral argument on July 14, 2026, in our courtroom at the Indiana Statehouse. We thank counsel
for their skillful written and oral advocacy.
Court of Appeals of Indiana Opinion 25A-PL-2410 September 4, 2026 Page 3 of 16 [6] According to Tri-State’s pleadings, the School’s architect did not originally
specify an Oak Ridge product. But the originally specified product was not
acceptable to the School, and Tri-State contacted Oak Ridge to inquire “if it
manufactured a product that would be better suited” to the Projects. Appellant’s
App. Vol. 2 at 26. After receiving “all relevant details” about the Projects, Oak
Ridge recommended its product, OR 42D. Id. The architect accepted the
recommendation and issued change orders specifying the use of “OR42D 100%
Polyurethane” as the coating. Id. at 81.
[7] Tri-State placed orders for OR 42D. Some OR 42D was delivered, but “most of
the product delivered was OR 42[.]” Id. at 26. Tri-State notified Oak Ridge of
the discrepancy. Oak Ridge responded that OR 42 was “the same or better than
OR 42D” and was “specially and expressly formulated” for the Projects. Id. at
27, 31. Tri-State applied both products “with requisite care, skill,
workmanship, and in total conformity with all application instructions and
guidelines.” Id. at 31. 2 But the products failed “for the purpose for which [they
were] intended and recommended”: they cracked, bubbled, and developed
pinholes; and the color bled onto clothes and bleached when exposed to the sun
and heat. Appellant’s App. Vol. 2 at 27–28. Tri-State attributed the failure to the
“defective quality” of the products. Id. at 28.
2
At the hearing on the motions for judgment on the pleadings, counsel for Tri-State clarified that both OR
42D and OR 42 were applied at the Reitz stadium, but only OR 42 was applied at the Bosse stadium. See Tr.
Vol. 2 at 41.
Court of Appeals of Indiana Opinion 25A-PL-2410 September 4, 2026 Page 4 of 16 [8] Attempts at remediation were made, but in 2024, Tri-State filed a complaint
against the Defendants. 3 Count 3 of Tri-State’s complaint sought declaratory
judgment and Count 4 sought interpleader against the Contractors.
[9] The Contractors answered 4 and asserted counterclaims for breach of contract
and indemnity against Tri-State. ARC alleged Tri-State breached the warranty
provision of its subcontract agreement by failing to provide materials that
conformed to the requirements of the subcontract and were free from defects.
ARC also invoked the provision of the subcontract obligating Tri-State to
defend, pay all costs incurred, and hold ARC harmless for its failure to adhere
to the subcontract and sought indemnification for “any damages ARC has, or
will incur, due to Tri-State’s negligence in performing its scope of work.”
Appellee’s App. Vol. 2 at 54. River Town likewise alleged Tri-State breached its
subcontract agreement by using a different product than specified and invoked
the indemnification and defense clause of its subcontract. Both Contractors
alleged they had fully performed under their subcontracts.
[10] Tri-State replied to each counterclaim. It admitted it entered subcontracts with
the Contractors to provide labor and materials for the coating of the steps,
walkways, and seating for the Projects; admitted change orders were issued for
3
Tri-State’s claims against the School and Oak Ridge are not part of this appeal.
4
The Contractors did not answer Counts 3 and 4 of Tri-State’s complaint because they simultaneously filed
partial motions to dismiss those counts for failure to state a claim upon which relief could be granted.
Instead, they reserved the right to amend their answers if the motions were denied. As of the date of the
hearing on the motions for judgment on the pleadings, the motions to dismiss remained pending.
Court of Appeals of Indiana Opinion 25A-PL-2410 September 4, 2026 Page 5 of 16
use of OR 42D; and admitted it applied a coating to the projects. Tri-State
denied it breached either subcontract, denied it was negligent in applying the
product, denied it warranted the product, and denied it owed indemnity or a
defense to the Contractors “under the facts of this case.” Id. at 82 (Answer to
River Town’s counterclaims), 92 (Answer to ARC’s counterclaims). As to
River Town, Tri-State denied River Town had fully performed under the
subcontract because River Town had not paid the balance due to Tri-State. 5
Tri-State also asserted affirmative defenses to the Contractors’ counterclaims,
including: the School’s architect specified the product, Tri-State made no
warranties and was not a guarantor of the product, and any failure was caused
by others.
[11] About a year after the complaint was filed, the Contractors moved for judgment
on the pleadings, seeking judgment on their counterclaims. 6 Their supporting
memoranda alleged Tri-State admitted in its complaint “both that it supplied
the incorrect product and that the product it supplied was defective,”
establishing Tri-State’s breach and triggering its indemnity obligation. Id. at
108 (River Town memo), 122 (ARC memo) (emphasis omitted).
5
Tri-State separately asserted a counterclaim against River Town for its failure to pay the contractual amount
due.
6
River Town and ARC filed separate motions for judgment on the pleadings and memos in support. See
Appellant’s App. Vol. 2 at 105 (River Town) and 119 (ARC). The motions were filed by the same law firm,
and the memos are virtually identical but for party-specific facts. One attorney spoke at the hearing for both
parties. On appeal, they filed one brief and one attorney spoke on behalf of them both at the oral argument.
We therefore treat their arguments as one except when specified.
Court of Appeals of Indiana Opinion 25A-PL-2410 September 4, 2026 Page 6 of 16 [12] As to the breach of contract claims, the Contractors argued that Tri-State
admitted (1) a contract existed between it and the Contractors; and (2) it was
obligated to provide a non-defective specified product but did not; that is,
instead of providing and installing OR 42D, it provided and installed both OR
42D and OR 42 and both products failed. They further argued it is undisputed
that the School sued the Contractors for breach of contract upon determining
the product was unsatisfactory. As to the indemnity claims, the Contractors
argued Tri-State was expressly obligated by the subcontracts to indemnify and
defend them for any claims that arose because of its or its suppliers’ failures.
[13] Tri-State responded to the Contractors’ motions and argued judgment on the
pleadings was inappropriate because the pleadings left questions of fact to be
decided. Tri-State attached additional materials to its response, referred to as
“Exhibit 1.” See id. at 148, 175 (consisting of Tri-State’s answers to requests for
admissions in the School’s counterclaim against it and a clarifying affidavit).
Tri-State requested the trial court consider those materials in ruling on the
Contractors’ motions. In their replies to Tri-State’s response, the Contractors
referenced Exhibit 1 but claimed consideration of it would not change the
outcome.
[14] The trial court held a hearing in August 2025. The Contractors argued they had
filed the “obviously uncommon” motions because Tri-State “admit[ted] what
they did wrong. They’ve told us all what they did wrong. And they . . . wanna
live and fight another day with Oak Ridge, that’s fine. But they breached their
subcontracts. And then when they triggered [the School] suing [the
Court of Appeals of Indiana Opinion 25A-PL-2410 September 4, 2026 Page 7 of 16
Contractors], they have an obligation to defend and indemnify [the
Contractors].” Tr. Vol. 2 at 14, 21. “[T]he law is very clear, the contracts are
very clear, and . . . you can decide this is mere law.” Id. at 38.
[15] Tri-State began its argument by noting it had provided its responses to Requests
for Admissions from the School and an affidavit that “contains various
statements that clarify some of the pleadings” and therefore these motions
should be treated as motions for summary judgment. Id. at 21. It then
identified what it believed to be genuine issues of material fact precluding
judgment in the Contractors’ favor. Tri-State acknowledged it is undisputed
that only OR 42D “could be used or selected by Tri-State” but claimed there
was a genuine issue of fact as to who caused that change from the original plans
and specifications. Id. at 24. A second issue of fact Tri-State identified is
whether the “slight reformulation” from OR 42D to OR 42 was a material or
immaterial change. Id. at 25. Tri-State argued these and other disputed facts
made a judgment on the pleadings or a summary judgment “simply just not
appropriate today.” Id. at 39.
[16] At the conclusion of the hearing, the trial court said:
[The Court]: . . . [M]y recollection of this, please correct me if
I’m wrong, is I haven’t converted this to a motion for summary
judgment hearing. Is that everyone’s understanding?
[Counsel for Contractors]: Correct.
[The Court]: That’s my understanding as well.
Court of Appeals of Indiana Opinion 25A-PL-2410 September 4, 2026 Page 8 of 16
[Counsel for Tri-State]: Have or have not?
[The Court]: Have not. My understanding is I have not yet done
that. I believe it’s a request to do that, but I have not actually
granted that.
Id. at 39.
[17] Four days later, the trial court issued its orders granting the Contractors’
motions for judgment on the pleadings, (1) awarding judgment against Tri-State
and for the Contractors as to Tri-State’s liability for breach of contract in an
amount to be determined later at an evidentiary hearing on damages, and (2)
ordering Tri-State to defend and indemnify the Contractors against all claims in
this cause. See Appellant’s App. Vol. 2 at 21 (ARC) and 23 (River Town).
The trial court did not err by applying the Trial Rule 12(C)
standard.
[18] Tri-State first asserts the trial court erred by failing to treat the Contractors’
motions as motions for summary judgment because Tri-State presented material
outside the pleadings in its response to the Contractors’ motions.
[19] When a motion for judgment on the pleadings is predicated on matters outside
the pleadings, the motion should be treated as one for summary judgment.
Waldrip v. Waldrip, 976 N.E.2d 102, 110 (Ind. Ct. App. 2012); see Ind. Trial
Rule 12(C) (“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
Court of Appeals of Indiana Opinion 25A-PL-2410 September 4, 2026 Page 9 of 16
56[.]”). Matters outside the pleadings include materials such as depositions,
answers to interrogatories, admissions, and affidavits. Fox Dev., Inc. v. England,
837 N.E.2d 161, 164 (Ind. Ct. App. 2005). The mere filing of an affidavit or
other materials outside the pleadings does not by itself compel conversion;
rather, the court retains the authority to exclude or simply decline to consider
outside materials. See Residential Warranty Servs., Inc. v. L.M. Henderson & Co.,
LLP, 196 N.E.3d 711, 714–15 (Ind. Ct. App. 2022) (holding trial court did not
err by applying Trial Rule 12(C) standard rather than converting the matter to
summary judgment proceedings when it declined to consider an affidavit filed
by the nonmovant). A trial court converts a Trial Rule 12 motion to a motion
for summary judgment “by its consideration of extraneous matters” regardless
of whether the court converts the motion expressly. Davidson v. State, 211
N.E.3d 914, 925 (Ind. 2023) (quoting Milestone Contractors, L.P. v. Ind. Bell Tel.
Co., 739 N.E.2d 174, 176 (Ind. Ct. App. 2000), trans. dismissed).
[20] From our review of the record, it is clear the court did not consider matters
outside the pleadings. The trial court’s statements at the end of the hearing
about Tri-State’s request demonstrates its awareness of Trial Rule 12(C)’s
conversion provision and implies the court had not yet considered Tri-State’s
Exhibit 1. Prior to issuing its rulings, the trial court did not give notice of its
intention to convert the motions or offer the Contractors an opportunity to
present summary judgment materials. The orders themselves state the court
grants the motions for judgment on the pleadings. Conversion is triggered by
actual consideration, not mere submission of materials outside the pleadings,
Court of Appeals of Indiana Opinion 25A-PL-2410 September 4, 2026 Page 10 of 16
and there is no indication the trial court considered Tri-State’s Exhibit 1.
Therefore, the trial court did not err by applying the Trial Rule 12(C) standard
rather than the summary judgment standard. See Residential Warranty Servs., 196
N.E.3d at 715.
Judgment on the pleadings should not have been granted
because the pleadings present genuine issues of material fact.
[21] A Trial Rule 12(C) motion tests the legal sufficiency of the pleadings’ claims
and defenses. Bayer Corp. v. Leach, 147 N.E.3d 313, 315 (Ind. 2020). We review
de novo a trial court’s ruling on a Trial Rule 12(C) motion. Murray v. City of
Lawrenceburg, 925 N.E.2d 728, 731 (Ind. 2010). We base our decision solely on
the pleadings. See Davey Tree Expert Co. v. City of Indianapolis, 147 N.E.3d 354,
356 (Ind. Ct. App. 2020). “Pleadings” consist of a complaint, answer (and any
counterclaims or cross-claims asserted therein), a reply to a counterclaim, an
answer to a cross-claim, a third-party complaint, an answer to a third-party
complaint, and any written instruments attached to a pleading pursuant to Trial
Rule 9.2(A). 7 Id. For purposes of the motion, the moving party is deemed to
have admitted the truth of all well-pleaded facts in the nonmovant’s pleadings
“and the untruth of [its] own allegations which have been denied.” Hendricks
Cnty. v. Green, 120 N.E.3d 1118, 1122 (Ind. Ct. App. 2019) (quoting Shepard v.
Truex, 823 N.E.2d 320, 324 (Ind. Ct. App. 2005)), trans. denied. “All reasonable
7
In this case, the subcontracts were attached to Tri-State’s complaint.
Court of Appeals of Indiana Opinion 25A-PL-2410 September 4, 2026 Page 11 of 16
inferences are drawn in favor of the nonmoving party and against the movant.”
Id.
[22] Judgment on the pleadings is proper only when there are no genuine issues of
material fact and the pleadings “clearly establish that the non-moving party
cannot in any way succeed under the facts and allegations therein.” Eskew v.
Cornett, 744 N.E.2d 954, 956 (Ind. Ct. App. 2001), trans. denied; see ESPN, Inc. v.
Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1195 (Ind. 2016) (stating
judgment on the pleadings “is available to ‘any party’ where it is clear from the
face of the pleadings that one party is entitled to prevail as a matter of law”)
(quoting T.R. 12(C)). 8 “[A] judgment on the pleadings is, in reality, a summary
judgment minus affidavits and other supporting documents.” Poultry & Indus.
Suppliers, Inc. v. Incubacol, S.A.S., 250 N.E.3d 448, 454 (Ind. Ct. App. 2024),
trans. denied.
[23] The Contractors argue Tri-State admitted in its pleadings that it supplied a nonconforming and defective product and thereby materially breached the
subcontracts as a matter of law, triggering its contractual indemnity and defense
obligations. Indeed, Tri-State did admit in its complaint that it was contracted
to supply a specified coating, it received and applied some of that coating but
8
The common formulation of the Trial Rule 12(C) test is that judgment on the pleadings is appropriate “only
where it is clear from the face of the complaint that under no circumstances could relief be granted.” See
Veolia Water Indianapolis, LLC v. Nat’l Tr. Ins. Co., 3 N.E.3d 1, 5 (Ind. 2014). Here, however, it is the
counterclaimants who seek judgment on their own counterclaims, essentially asserting it is clear from the
face of the pleadings that under no circumstances could relief be denied on their counterclaims.
Court of Appeals of Indiana Opinion 25A-PL-2410 September 4, 2026 Page 12 of 16
mostly applied a coating that was labeled differently, and the coating it applied
failed. But the Contractors cannot rely on the truth of only the averments that
support their position without also acknowledging the truth of the remainder.
By moving for judgment on the pleadings, the Contractors are deemed to have
admitted the truth of all Tri-State’s well-pleaded facts. See Green, 120 N.E.3d at
1122. 9
[24] Among the defenses Tri-State asserted in its pleadings are that the School and
the Contractors assumed the risk of unsuitability by specifying the product to be
used. See Millner v. Mumby, 599 N.E.2d 627, 630 (Ind. Ct. App. 1992) (holding
a contractor who performs in a workmanlike manner according to plans and
specifications supplied by the owner is generally not liable if the plans and
specifications prove defective); see also United States v. Spearin, 248 U.S. 132,
136–37 (1918) (recognizing when an owner supplies plans and specifications, he
impliedly warrants they are adequate and suitable for their intended purpose
and a contractor who follows the plans and specifications is not liable for latent
defects). Tri-State asserted it made no warranties about the architect-specified
product by acquiring and applying it at the direction of the School and the
Contractors. Further, Tri-State alleged any breach by Tri-State is derivative of
Oak Ridge’s breach of its warranties. And specific to River Town, Tri-State
alleged River Town is itself in breach of the subcontract.
9
These facts are deemed to be true solely for the purpose of ruling on the Contractors’ motions for judgment
on the pleadings.
Court of Appeals of Indiana Opinion 25A-PL-2410 September 4, 2026 Page 13 of 16 [25] Accepted as true, these well-pleaded facts support Tri-State’s defenses: Tri-State
alleged the School’s architect specified the product it was required to use, Oak
Ridge represented OR 42D and OR 42 were the same product and fit for the
intended purpose, Tri-State skillfully applied the product, and the product failed
because of a manufacturer’s defect. Tri-State also alleged River Town did not
pay Tri-State the amount due under the subcontract. Under the Trial Rule
12(C) standard, it is not clear from the face of the pleadings that Tri-State’s
defenses “cannot in any way succeed” against the Contractors’ counterclaims
for breach of contract because determining whether these or other pleaded
defenses apply in this case requires factual development. 10 Eskew, 744 N.E.2d at
956.
[26] Further, the Contractors argued Tri-State materially breached the subcontracts.
Whether a breach is material is generally a question of fact. Collins v. McKinney,
871 N.E.2d 363, 375 (Ind. Ct. App. 2007); see KR Enters., Inc. v. Zerteck Inc., 999
F.3d 1044, 1054 (7th Cir. 2021) (“‘Material’ is a slippery term in the law in
general and in contract law more specifically.”). When determining whether a
breach is material, Indiana courts generally apply the five factors articulated in
the Restatement (Second) of Contracts Section 241 (1981). State v. Int’l Bus.
10
Although we mention specific defenses because they illustrate why judgment on the pleadings was
improper in this case, our doing so should not be interpreted as a comment on the other affirmative defenses
Tri-State raised.
Court of Appeals of Indiana Opinion 25A-PL-2410 September 4, 2026 Page 14 of 16
Machs. Corp., 51 N.E.3d 150, 160 (Ind. 2016). 11 Determining whether Tri-State
materially breached the subcontracts requires determining facts such as who
was responsible for the product change, whether OR 42D and OR 42 are the
same product, and whether the failure was attributable to Tri-State’s
workmanship or to a latent defect in the product—all questions that cannot be
resolved by a judgment on the pleadings. In other words, genuine issues of
material fact exist here, the Contractors are not entitled to prevail as a matter of
law, and judgment on the pleadings was improper on this claim.
[27] The Contractors’ indemnity counterclaims are based on the same premise as
their breach of contract counterclaims—that the pleadings conclusively
establish Tri-State’s fault. As we have concluded they do not, judgment on the
pleadings for the Contractors on their indemnity claims was also improper.
Conclusion
[28] We reverse the judgments on the pleadings for the Contractors on their
counterclaims and remand to the trial court for further proceedings.
[29] Reversed and remanded.
Weissmann, J., and DeBoer, J., concur.
11
“The common law standard only applies in the absence of a contractual provision regarding what
constitutes a material breach.” Id. at 161. The Contractors do not argue the subcontracts themselves provide
a materiality standard.
Court of Appeals of Indiana Opinion 25A-PL-2410 September 4, 2026 Page 15 of 16 ATTORNEYS FOR APPELLANT
Andrew E. Skinner
Danny E. Glass
Fine & Hatfield
Evansville, Indiana
ATTORNEYS FOR APPELLEES ARC CONSTRUCTION CO., INC. AND RIVER
TOWN CONSTRUCTION, LLC
A.J. Manion
Theresa Williams
Manion Stigger, LLP
Evansville, Indiana
ATTORNEYS FOR APPELLEE OAK RIDGE FOAM & COATING SYSTEMS, INC.
James D. Johnson
Chandler A. Lacy
Jackson Kelly PLLC
Evansville, Indiana
ATTORNEYS FOR APPELLEE EVANSVILLE VANDERBURGH SCHOOL
CORPORATION
Patrick A. Shoulders
Robert L. Burkart
Ziemer Stayman Weitzel & Shoulders, LLP
Evansville, Indiana
Court of Appeals of Indiana Opinion 25A-PL-2410 September 4, 2026 Page 16 of 16