text:
    In the MATTER OF: Dorothy J. THOMSEN, Respondent
    Supreme Court Case No. 49S00-0901-DI-6
    Supreme Court of Indiana.
    Filed October 4, 2018
    Published Order Finding Respondent in Contempt of Court and Imposing Fine
    The Court suspended Respondent from the practice of law for no less than 120 days without automatic reinstatement, effective August 21, 2009. Respondent has remained under suspension at all times thereafter and has not sought reinstatement.
    The Commission filed a "Verified Motion for Rule to Show Cause" on August 20, 2018, asserting that Respondent practiced law in this state and held herself out as an attorney while suspended. Specifically, the Commission alleges that in July 2018 Respondent sent a letter to the Marion County Department of Child Services that bore the header "Thomsen Law Office" and was captioned "Notice of Suit - Intent to File." The body of the letter indicated Respondent intended to assist an individual in filing a federal lawsuit against a family case manager based on an event that allegedly occurred at Riley Hospital.
    The Court issued an order to show cause on August 21, 2018, directing Respondent to show cause in writing, within 15 days of service, why she should not be held in contempt for disobedience to this Court's order suspending her from practice. It has been over 15 days since Respondent was served, and Respondent has not responded. We therefore find that Respondent has practiced law in violation of her suspension as asserted by the Commission.
    This Court has inherent and statutory authority to punish contempt of court. See Matter of Mittower, 693 N.E.2d 555, 559 (Ind. 1998). Under the circumstances, the Court concludes that a fine of $500 is sufficient discipline for Respondent's contempt of court by practicing law while suspended.
    The Court therefore ORDERS that Respondent be fined the sum of $500. Respondent shall remit this amount within 60 days of the date of this order to the Clerk of the Indiana Supreme Court, Court of Appeals, and Tax Court. The costs of this proceeding are assessed against Respondent.
    All Justices concur, except David, J., who dissents and would impose more significant sanctions for Respondent's contempt.


source: Caselaw Access Project

author: Slaughter, Justice.

license: Public Domain

text:
    B.T.E., Appellant, v. STATE of Indiana, Appellee.
    Supreme Court Case No. 36S05-1711-JV-711
    Supreme Court of Indiana.
    Argued: January 11, 2018 Decided: October 11, 2018
    Attorney for Appellant: R. Patrick Magrath, Alcorn Sage Schwartz & Magrath, LLP, Madison, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Katherine Cooper, Deputy Attorney General, Indianapolis, Indiana
    On Petition to Transfer from the Indiana Court of Appeals, No. 36A05-1607-JV-1702
   Slaughter, Justice.

For several months B.T.E., a juvenile, plotted to shoot up and blow up his high school, and he targeted two of his classmates to die. B.T.E. took several steps to implement his plot. The trial court adjudicated B.T.E. a juvenile delinquent on two counts, one of which is relevant here: attempted aggravated battery, a level 3 felony if committed by an adult.

We consider whether, under Indiana's criminal-attempt statute, B.T.E. took the required "substantial step" toward committing aggravated battery-or whether his actions were "mere preparation". After considering several factors, we hold there was sufficient evidence of the "substantial step" element and affirm the trial court's judgment.

Factual and Procedural History

Appellant, B.T.E., was a sophomore at Seymour High School during the 2015-16 school year. During the fall semester, he began plotting an attack at his school in the spring semester of his senior year. He targeted two of his classmates: G.M., the object of B.T.E.'s unrequited affection; and J.R., a rival suitor. B.T.E. chose April 20, 2018, as the date of his planned attack-the anniversary of the 1999 massacre at Columbine High School in Colorado, a shooting spree during which 13 people were murdered, many more were injured, and the two student gunmen committed suicide.

In January 2016, a school resource officer at Seymour High School learned that B.T.E. had liked a Facebook page called "Columbine High School Massacre". The officer reported this information to the Seymour Police Department, which began its own investigation. During an interview, police told B.T.E. of the allegations against him, and he became visibly upset and teary-eyed. B.T.E. admitted talking to other students about possibly "shooting up the school". And he admitted having a crush on G.M. and a strong animus toward J.R., whom he thought G.M. preferred. Although B.T.E. acknowledged plotting with his friend and classmate, M.V., he claimed their scheme was just a long-running joke.

B.T.E. was arrested shortly afterward. The State charged B.T.E. with juvenile offenses that would be crimes if an adult committed them: attempted murder, attempted aggravated battery, conspiracy to commit murder, and conspiracy to commit aggravated battery.

At the juvenile-delinquency proceeding, the trial court admitted into evidence statements B.T.E. made to M.V. and other juveniles via Facebook chat. B.T.E. repeatedly expressed his wish to torture or kill J.R. and occasionally mentioned killing G.M., too. In exchanges with his friend and co-conspirator M.V., B.T.E. claimed he had "figured out how to make pipe bombs" and described the weapons he might use against J.R.

B.T.E.: I could steal a knife ... and kill [J.R.] with it and then take out as many people as possible.
M.V.: Or you could buy a gun.
....
B.T.E.: Or I could attempt to break into my dads [sic] gun safe so I wouldn't have to buy a weapon.

The Facebook chat logs also show B.T.E. solicited M.V. and a student from a different school, D.H., to assist with violent acts.

B.T.E. disclosed the date of his planned attack when he said in a Facebook chat, "four twenty eighteen (4/20/18). Some people will find out what the state of nothingness is like." B.T.E. told police he chose that particular date because it was the anniversary of the Columbine school massacre. When police asked B.T.E. about the significance of 2018, he responded that was his senior year and he had done a large amount of research on school massacres including the Columbine shooting and its perpetrators. The two Columbine student-gunmen were high-school seniors when they carried out their deadly attack.

The court also admitted into evidence a diagram B.T.E. made of one of the classrooms depicting the seating arrangement, marking the exits, and indicating an "x" where one of his intended victims sat. And the trial court admitted B.T.E's "death note", which was to be read after B.T.E. died carrying out his plan. The trial court adjudicated B.T.E. a delinquent for attempted aggravated battery and conspiracy to commit aggravated battery but not for the other charges. The court sentenced B.T.E. to probation until his eighteenth birthday with a suspended commitment to the Indiana Department of Correction.

A divided Court of Appeals reversed the attempt finding but affirmed the conspiracy finding. B.T.E. v. State , 82 N.E.3d 267 (Ind. Ct. App. 2017). On the attempt issue, the majority held that "the State did not present evidence that B.T.E. completed a substantial step toward the commission of the crime of aggravated battery", id. at 279, because "the conduct ... did not go beyond mere preparation and was not strongly corroborative of his stated intent", id. at 278. The dissent would have affirmed the trial court's findings on both the conspiracy and attempt charges. Id. at 282 (Bradford, J., concurring in part, dissenting in part).

We granted transfer, thus vacating the Court of Appeals' decision. We provide additional facts below.

Standard of Review

When reviewing the sufficiency of the evidence in a juvenile adjudication, we do not reweigh the evidence or judge witness credibility. K.S. v. State , 849 N.E.2d 538, 543 (Ind. 2006) (citation omitted). We consider only the evidence favorable to the judgment and the reasonable inferences supporting it. Id. We will affirm a juvenile-delinquency adjudication if a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt. Moran v. State, 622 N.E.2d 157, 159 (Ind. 1993) (citations omitted).

Discussion and Decision

We hold there is sufficient evidence to support the trial court's adjudication of B.T.E. as a juvenile delinquent on the charge of attempted aggravated battery. He engaged in conduct that would constitute a substantial step toward the crime of aggravated battery if committed by an adult. In addition, we summarily affirm the Court of Appeals' disposition of two other issues: that the State's continuance did not deprive B.T.E. of a speedy hearing under Indiana Code section 31-37-11-2, and that there was sufficient evidence to support the juvenile court's finding of conspiracy to commit aggravated battery.

Sufficient evidence supports B.T.E.'s delinquency adjudication for attempted aggravated battery.

In Indiana, a person commits aggravated battery, a level 3 felony, if he "knowingly or intentionally inflicts injury on a person that creates a substantial risk of death or causes: (1) serious permanent disfigurement; (2) protracted loss or impairment of the function of a bodily member or organ; or (3) the loss of a fetus". Ind. Code § 35-42-2-1.5. And a person commits the crime of attempt when, "acting with the culpability required for commission of the crime, the person engages in conduct that constitutes a substantial step toward commission of the crime." Id. § 35-41-5-l(a). See also State v. Van Cleave , 674 N.E.2d 1293, 1304 (Ind. 1996). "Whether a substantial step has occurred is a question of fact, to be decided by the jury, based on the particular circumstances of each case." State v. Lewis , 429 N.E.2d 1110, 1116 (Ind. 1981) (citations omitted).

There is no doubt B.T.E. acted with the scienter required to commit aggravated battery. The object of his intentions, which included killing two of his classmates, qualifies as aggravated battery, and he does not argue otherwise. The only unresolved issue is whether B.T.E. took a "substantial step" toward committing that offense.

A. We consider several factors when assessing whether the defendant took a "substantial step" toward completion of the underlying offense.

What qualifies as a "substantial step" under the attempt statute is not amenable to a hard-and-fast definition but is based on context. Whether a step is substantial "must be determined from all the circumstances of each case". Zickefoose v. State , 270 Ind. 618, 622-23, 388 N.E.2d 507, 510 (1979). Although in rare circumstances a defendant's actions may be insubstantial as a matter of law, a step's substantiality is generally a fact question based on the totality of the circumstances. See Lewis , 429 N.E.2d at 1116.

The substantial-step "requirement is a minimal one, often defined as any 'overt act' in furtherance of the crime." Van Cleave , 674 N.E.2d at 1304. Still, the overt act must go "beyond mere preparation". Jackson v. State , 683 N.E.2d 560, 566 (Ind. 1997). But this requirement is not so strict that it forecloses some "preventive action by police and courts to stop the criminal effort at an earlier stage". Zickefoose , 270 Ind. at 622, 388 N.E.2d at 509. Instead, the attempt statute enables law enforcement to "minimiz[e] the risk of substantive harm without providing immunity for the offender." Id. We focus on "the substantial step that the defendant has completed, not on what was left undone." 270 Ind. at 623, 388 N.E.2d at 510.

Renowned jurists have long struggled with where to draw the line between mere planning and preparation, which are insufficient to establish the crime of attempt, and a substantial step, which is sufficient.

As Judge Hand observed, "The decisions are too numerous to cite, and would not help much anyway, for there is, and obviously can be, no definite line" between preparation and attempt. United States v. Coplon , 185 F.2d 629, 633 (2d Cir. 1950).

Like Judge Hand, we are unable to capture the difference between mere preparation and a substantial step in a pithy, bright-line rule. Rather than pronounce a clear delineation, we can only describe and apply the relevant criteria. Of necessity, we balance several factors:

(1) whether the defendant's acts strongly corroborate his criminal intent;
(2) the severity of the charged crime;
(3) proximity to the underlying crime;
(4) the examples listed in Model Penal Code section 5.01(2) ; and
(5) whether the defendant's multiple acts, viewed together, indicate he attempted a crime.

We trust that these factors and their application here will, in true common-law fashion, add incrementally to the tapestry of decisional law. At all times, however, we proceed cautiously to ensure that prosecutors and police, in discharging their duty to snuff out serious threats to public safety, do not infringe upon protected activity, particularly freedom of conscience and expression. Our criminal law does not punish evil thoughts. A guilty mind, by itself, does not subject the actor to criminal liability. Such liability attaches only to those with a guilty mind who also perpetrate a wrongful deed.

1. Strong corroboration

Since the enactment of Indiana's modern attempt statute, we have said that the defendant's conduct, to qualify as a substantial step, "must be strongly corroborative of the firmness of the defendant's criminal intent." Zickefoose , 270 Ind. at 623, 388 N.E.2d at 510. The Model Penal Code's authors found this factor essential, reasoning "that if the defendant manifests a purpose to engage in the type of conduct or to cause the type of result that is forbidden by the criminal law, he has sufficiently exhibited his dangerousness to justify the imposition of criminal sanctions." Am. Law Inst., Model Penal Code and Commentaries Part I 303 (1985). According to one academic, "The actus reus of an attempt to commit a specific crime is constituted when the accused person does an act which is a step towards the commission of the specific crime, and the doing of such act can have no other purpose than the commission of that specific crime." Wayne R. LaFave, Substantive Criminal Law Vol. 2 § 11.4(d) (3d ed. 2017) quoting J.W. Cecil Turner, Attempts to Commit Crimes , 5 Cambridge L.J. 230, 236 (1934).

2. Severity of the crime

In assessing substantiality, we look at the nature and severity of the offense. "[T]he more serious the crime attempted ..., the further back in the series of acts leading up to the consummated crime should the criminal law reach in holding the defendant guilty for attempt." Ward v. State , 528 N.E.2d 52, 54 (Ind. 1988) quoting Francis Bowes Sayre, Sr., Criminal Attempts , 41 Harv. L. Rev. 821, 845 (1928). An act that is insubstantial for an attempt conviction on a less serious charge may well be substantial for more serious crimes. For example, a reconnaissance mission in furtherance of stealing a target's wallet may be insufficient to convict for attempted theft. But the same mission in furtherance of killing the target could be sufficient to convict for attempted murder.

3. Proximity and remoteness

The third factor we consider is the proximity (or remoteness) of the actor's conduct to his intended crime. Proximity and remoteness, sometimes viewed as opposite sides of the same coin, have both temporal and geographic dimensions. If the actor's conduct is sufficiently proximate in time and place to the planned offense, then he is more likely guilty of attempt. But the reciprocal proposition does not necessarily follow. Just because the actor's completed conduct may be remote in time or place to the underlying crime does not mean there was no attempt. The reason for treating these complementary concepts differently is that Indiana "focuses on the substantial step that the defendant has completed, not on what was left undone." Zickefoose , 270 Ind. at 623, 388 N.E.2d at 510. If the completed acts represent a substantial step, then there was an attempt, even if one or both dimensions of proximity are unsatisfied.

4. The Model Penal Code

Like Indiana's attempt statute, I.C. 35-41-5-1(a), the Model Penal Code considers whether the defendant took a "substantial step" toward commission of the underlying crime. Section 5.01(2) of the Model Penal Code lists examples of conduct that may qualify as a substantial step:

(a) lying in wait, searching for or following the contemplated victim of the crime;
(b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;
(c) reconnoitering the place contemplated for the commission of the crime;
(d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;
(e) possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances;
(f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, if such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances;
(g) soliciting an innocent agent to engage in conduct constituting an element of the crime.

Model Penal Code § 5.01(2) (Am. Law Inst. 2018). A person who engages in one or more of these recited acts may be subject to liability under Indiana's criminal-attempt statute. We do not hold that a trial court that acquits despite the presence of one of these acts commits error. But it is difficult to imagine reversing a trial court that convicts in the presence of one of these acts.

5. Aggregate conduct

Last, we consider the cumulative effect of all the defendant's actions taken together. In other words, the factfinder should consider the totality of the circumstances instead of isolating each fact that the State raises about the defendant's conduct.

B. There was sufficient evidence for a reasonable factfinder to determine B.T.E. attempted to commit aggravated battery.

The trial court determined that B.T.E.'s conduct over four months satisfied the substantial-step requirement. We hold on this record that substantial evidence supports the trial court's adjudication of B.T.E. as a juvenile delinquent for attempted aggravated battery.

Our attempt test comprises the five factors outlined in Section A. We balance those factors, keeping in mind our deferential standard of review. The test is not conjunctive, but embraces a sliding scale. If the State shows the defendant's acts were strongly corroborative of his criminal intent, that lessens the need for proximity. Thus, the absence of one or more factors is not fatal to a finding of attempt. Conversely, just one or two factors, if compelling enough, can lead to a finding of attempt.

1. Strong corroboration

As discussed next, B.T.E.'s solicitations, drawings and diagrams, and death note strongly corroborate his criminal intent.

a. Solicitations

As mentioned, B.T.E. recruited M.V. to help carry out his planned attacks at Seymour High School, including sharing with M.V. detailed notes outlining his research into how to make a pipe bomb, debating what murder weapon would be best for killing J.R., and discussing tips for avoiding suspicion. And B.T.E. urged D.H., who lived elsewhere and was suicidal, to travel to Seymour to kill J.R. before taking his own life. B.T.E. had also sent D.H. a picture of J.R.

B.T.E.'s solicitation of M.V. and D.H. manifests his commitment to carrying out his planned offense of aggravated battery in two respects. First, discussing his plans with potential accomplices brought B.T.E. closer to committing a crime. He discussed the logistics of getting away with murder with his friend M.V., and he discussed how to obtain a murder weapon. And, in his conversations with D.H., he actively urged D.H. to commit the crime. These solicitations reveal the tenacity with which B.T.E. was pursuing his goal of harming J.R. Second, the solicitation subjects B.T.E. to potential adverse consequences for his violent desires. By telling his friends, he risked being reported to school officials, his parents, or police. So firm was B.T.E. to committing aggravated battery that he was willing to take that risk to carry out his plan.

The Court of Appeals, however, concluded that B.T.E.'s solicitations were not a substantial step, relying on Ward , 528 N.E.2d 52. There, we adopted two tests for assessing whether solicitation is an attempt. One test asks whether the underlying offense is a "sufficiently serious crime" that it makes sense to treat even early steps toward completion of the offense as substantial. Id. at 54. The other test, cited by the panel majority below, requires (among other things) that any solicitation must urge the commission of a crime "at some immediate time and not in the future". B.T.E. , 82 N.E.3d at 278 (quoting Ward , 528 N.E.2d at 54 ). Because B.T.E.'s planned crimes at Seymour High School against his two classmates were not imminent, the Court of Appeals held B.T.E.'s solicitations did not qualify as an attempt under Ward . We respectfully disagree and hold that Ward does not govern here for two reasons.

First, the narrow issue in Ward was whether an adult defendant's solicitations of two underage boys to engage in sexual activity were a substantial step toward completion of the underlying offenses of child molesting and thus qualified as attempted child molesting. Ward did not address the very different issue here, which is whether a defendant's solicitations in conjunction with other affirmative steps together can satisfy the substantial-step requirement. We hold they can. B.T.E.'s solicitations were not the only overt acts he committed. Ward does not foreclose treating solicitation as a substantial step even for remote-in-time offenses if they would be substantial when viewed alongside other overt acts.

Second, Ward 's holding involved two-party solicitations. As we observed, the underlying crime of child molesting "is a two-party offense, which requires the cooperation or submission of the child being solicited." 528 N.E.2d at 55. Ward expressly excluded from its solicitation-as-attempt test the three-party solicitation at issue here: "This specific evaluation of the solicitation, therefore, excludes three-party solicitations, where A solicits B to murder C." Id. at 54 n.3 (emphasis added). The Court of Appeals believed this statement from Ward -which it said "precisely describes" B.T.E.'s solicitations, 82 N.E.3d at 279 -to mean that B.T.E. did not take a substantial step toward the crime of aggravated battery. Again, we disagree with this narrow interpretation of Ward . Our focus is on the steps taken toward completing the underlying crime and not on the steps remaining. We reject a categorical rule that A's solicitation of B to commit a crime against C can never amount to attempt.

b. Drawings and diagrams

In addition to his solicitations of the two other students, B.T.E. drew a pair of diagrams that represent affirmative steps toward fulfilling his planned Columbine-style attacks on the high school. One diagram depicts the high-school building where the attacks were to occur. The other shows the specific classroom that B.T.E. targeted. This latter diagram reveals the location of the room's entrance and exit, and it contains a crude seating chart with two of the chairs highlighted and another chair marked with an "x". The preparation of these diagrams is among several acts strongly corroborative of B.T.E.'s criminal intent to commit aggravated battery.

c. Death note

B.T.E. also prepared a seven-page, single-spaced note that M.V. was to share at school after B.T.E.'s death. It included messages of varying lengths expressing his sentiments about more than a dozen of his classmates. Some of the messages are cold and crass: "kill yourself". Others are warm and even affectionate: "I like you a lot and always will." We agree with the Court of Appeals' dissent that this note appears to show that B.T.E. is "put[ting] his affairs in order" in anticipation of his planned attack and, thus, is "strongly corroborative of the firmness of his intent to attack J.R. in school." 82 N.E.3d at 284 (Bradford, J., concurring in part, dissenting in part).

In sum, B.T.E.'s solicitations and other acts strongly corroborate his criminal intent. This factor weighs heavily in favor of the trial court's attempt adjudication.

2. Severity of the offense

We observed in Ward that the line between mere preparation and a substantial step depends on the seriousness of the offense. There, the Court had "little difficulty" concluding that child molesting "is a sufficiently serious crime to justify drawing a fairly early line to identify and sanction behavior as an attempt." 528 N.E.2d at 54.

For B.T.E.'s proposed crimes against his school and two of his classmates, we conclude that aggravated battery also is "sufficiently serious" that it warrants drawing an "early line" to assess whether B.T.E. "attempted" aggravated battery. B.T.E.'s affirmative steps included his prolonged solicitation of M.V. and D.H. In numerous Facebook chats over several weeks, B.T.E. said he would do things to J.R. that "would make even the sociopathic of sociopaths shake and stutter [sic]"; that he would kill J.R. and "[i]f [J.R.] dates [G.M.] then I will seriously kill him" and "I'll kill her too"; that he "should kill [J.R.] to prove that I never fail"; that he would kill J.R., his dogs, his parents, and burn down his house with him in it; that he would "HELP [J.R.] CATCH PERMANENT ZZZ ... OR IMPALE HIM LIKE VLAD THE IMPALER DID"; that "[h]opefully [J.R.] kills himself because I'm going to get myself arrested if he doesn't"; that it was too bad he didn't have a benevolent mind or J.R. would make it past high school; that G.M. should hope he never gets to his father's gun or he would kill her and J.R., saying "that's two people I want to kill in Seymour high"; that he wanted to get a "bowl cut" and "become famous after I'm arrested", an apparent reference to the hairstyle of mass murderer Dylann Roof; and that he wanted J.R. to get "nonstop" sleep. B.T.E. also wrote more explicitly vile messages that are part of this record, but we omit them in the interest of decorum. In addition to these solicitations are B.T.E.'s school drawings and death note-all of which strongly corroborate his plan to fulfill his intended crime. And they support the trial court's conclusion that B.T.E.'s acts were a substantial step toward committing aggravated battery. B.T.E.'s discussions with friends over Facebook were not idle chatter or the venting of frustrations after one bad day. His threats were both serious and sustained over a period of months, revealing the palpable danger he posed to his classmates. The severity of his crime-a school shooting-weighs heavily in favor of the trial court's attempt adjudication.

3. Proximity and remoteness

Like the Court of Appeals, we pause when presented with a finding of attempt against an offender who says he will commit his crime two years in the future. But a distant date is not dispositive on this record for two reasons. First, regardless of the acts that remain, B.T.E.'s completed conduct is sufficiently dangerous and corroborative of a seriousness of purpose that the law can reasonably reach back and treat it as a substantial step.

Second, some of B.T.E.'s own words and deeds suggest he might carry out an attack much sooner than his senior year in high school. One example is B.T.E.'s conversations with D.H., in November 2015, in which he solicits his potentially suicidal friend to come to Seymour High School and murder J.R. before taking his own life. The solicitation seems to be a present-tense command. And nothing in the record suggests D.H. had any reason to believe B.T.E.'s plan called for an attack in April 2018. In one conversation, D.H. suggested killing a friend of B.T.E.'s-a student at Seymour High School. D.H. even asked B.T.E. to send a picture of the friend. In response, B.T.E. suggested that D.H. kill J.R., and he sent a picture of J.R. so that D.H. could identify him. The next week, when D.H. told B.T.E. he was suicidal, B.T.E. encouraged him to come to Seymour High School and kill J.R. before killing himself.

D.H.: I'm so close to killing myself.
B.T.E.: No no kill someone else not yourself.
B.T.E.: Come to Seymour and kill that fucker and then kill yourself.
....
D.H.: I'm gonna kms.
....
B.T.E.: Don't do that.
B.T.E.: Kill others before yourself.

On its face, this solicitation appears to urge violence against J.R. much sooner than B.T.E.'s proposed date in April 2018.

Additionally, B.T.E.'s classroom drawing in which two seats are shaded and another is marked with an "x" hints at more imminent violence. As students change classes and classrooms from one year to the next-and almost certainly change their seating assignments-B.T.E.'s map would presumably have no value for a crime planned two years in the future.

Finally, B.T.E.'s "death note" also indicates an attack may be more imminent. The note does not discuss the nature of B.T.E.'s eventual crime. But its mere existence speaks to both the seriousness of B.T.E.'s plot and its timing. After all, B.T.E.'s note written in 2015 or 2016 would not necessarily reflect his feelings about his classmates in April 2018.

We find it instructive to compare this case to a recent, strikingly similar case from Vermont also involving a prospective school shooter. In State v. Sawyer , 187 A.3d 377 (Vt. 2018), a recent graduate was alleged to have planned a shooting at his former high school. The defendant allegedly wrote detailed journals expressing his wishes and plans for committing a school massacre and procured a shotgun in service of those plans. Id. at 380-81. He also sent Facebook messages to friends suggesting he was a threat to his former school and admitted to police that he planned to attack the school. Id. And like B.T.E., Sawyer planned "a mass shooting on the anniversary of the date of the Columbine school shooting". Id. at 381.

The Vermont Supreme Court held Sawyer's actions likely did not amount to an attempt under Vermont law, which "requires an intent to commit a crime, coupled with an act that, but for an interruption, would result in the completion of a crime." Id. at 382 (citing State v. Hurley , 79 Vt. 28, 64 A. 78 (1906) ). Sawyer recognized the difference between Vermont's attempt statute and those statutes, like Indiana's, that require merely a substantial step. In doing so, the Vermont Supreme Court noted that Sawyer might be guilty of attempt under a substantial-step attempt statute. Id. at 385-86. "The substantial-step analysis presents a lower bar regarding the kind of act required to show that a defendant has attempted to commit a crime". Id. at 385. Ultimately, unlike Vermont, Indiana adjudges a person preparing to commit a crime guilty of attempt much earlier along the continuum.

We also note that some Indiana caselaw on attempt focuses substantially more on proximity and, in particular, remoteness than we do here. Each of the defendants in Calvert v. State , 930 N.E.2d 633 (Ind. Ct. App. 2010), Collier v. State , 846 N.E.2d 340 (Ind. Ct. App. 2006), and State v. Kemp , 753 N.E.2d 47 (Ind. Ct. App. 2001), trans. denied, were closer in time or space to committing their underlying respective crimes when arrested than was B.T.E. In Calvert , the defendant drove around a liquor store to scout it for a holdup with a shotgun in his car. 930 N.E.2d at 639-40. In Collier , the defendant told his neighbor he was going to murder his ex-wife and staked out her workplace while possessing an ice pick, box cutter, and pair of binoculars. 846 N.E.2d at 342-43. And in Kemp , which has since been superseded by statute, the defendant was alleged to have met with an undercover officer posing as an underage girl to engage in sexual activity. 753 N.E.2d at 51. Yet in all three cases, the Court of Appeals held there was no substantial step and thus no attempt. To the extent that Calvert , Collier , or Kemp would have foreclosed finding a "substantial step" under these facts, we disapprove of these cases. Lack of proximity is not dispositive.

4. Model Penal Code

B.T.E. engaged in some conduct that may be held a substantial step, according to Model Penal Code section 5.01(2). He unquestionably was "soliciting an innocent agent to engage in conduct constituting an element of the crime", Model Penal Code § 5.01(2)(g), by asking D.H. to kill J.R. before killing himself.

True, the Model Penal Code also refers to "reconnoitering the place contemplated for the commission of the crime". § 5.01(2)(c). And Judge Bradford's dissent views B.T.E.'s drawings of his school building and classrooms as reconnoitering under section 5.01(2)(c). But on this record, we conclude B.T.E. was not undertaking a reconnaissance mission at his school; by law, he had to be there during school hours. I.C. § 20-33-2-4. Even so, the drawings are strongly corroborative of B.T.E.'s criminal intent.

5. Aggregate conduct

Last, we consider B.T.E.'s conduct in the aggregate. The State's evidence shows a young man with a clear intention to commit violence at his school, along with affirmative acts that strongly corroborate that intent. On their own, B.T.E.'s conversations with his friend M.V. might be viewed as a long-running "joke", albeit one extremely offensive and in poor taste; his drawings of the school building and classroom the reckless doodles of a bored student; and his death note a dramatic diary entry. But together these acts reflect a young man who, despite knowing the difference between right and wrong, both conjured up a horrific scene at school involving death and mayhem to fellow classmates and then took affirmative actions toward carrying out that plan. Based on our consideration of all the evidence, we cannot say the juvenile court committed reversible error in adjudicating B.T.E. a delinquent on the charge of attempted aggravated battery.

Conclusion

B.T.E. did more here than simply think evil thoughts. What may have begun as mere ruminations about his hatred for J.R. turned into a plot to kill him along with another classmate, and then extended beyond mere planning and preparation. The planning, the solicitations, the bomb research, the drawings depicting the target classroom, and the death note together justify the trial court's conclusion that B.T.E.'s affirmative conduct amounts to a substantial step toward the commission of aggravated battery. For these reasons, we affirm the trial court's judgment.

Rush, C.J., and David, Massa, and Goff, JJ., concur.


author: Per curiam.

text:
    Cember WAMSLEY, as Personal Representative of the Estate of Genia Wamsley, Appellant (Plaintiff) v. TREE CITY VILLAGE, New Generation Management, Inc., and Matthew Joseph, Appellees (Defendants)
    Supreme Court Case No. 18S-CT-502
    Supreme Court of Indiana.
    Argued: September 20, 2018 FILED October 11, 2018
    ATTORNEY FOR APPELLANT: Thomas A. Vick, Law Office of Thomas A. Vick, Greenwood, Indiana
    ATTORNEYS FOR APPELLEES TREE CITY VILLAGE AND NEW GENERATION MANAGEMENT, INC.: Lonnie D. Johnson, Belinda R. Johnson-Hurtado, Cheyenne N. Riker, Clendening Johnson & Bohrer, P.C., Bloomington, Indiana
    On Petition to Transfer from the Indiana Court of Appeals, No. 16A01-1706-CT-1355
   Per curiam.

Matthew Joseph accidentally discharged a firearm while cleaning it. The bullet passed through the wall of his apartment unit and struck Genia Wamsley, the occupant of the adjacent unit. Wamsley retained counsel, who communicated for several months with the insurer of the apartment complex and its management company (collectively "Landlords"). The insurer denied the claim, and Wamsley filed suit against Landlords and Joseph. The president of the management company wrote Wamsley's counsel, acknowledging receipt of the complaint and pointing out a factual error therein. The president then placed the complaint in a file cabinet and did nothing further. Neither Landlords nor Wamsley's counsel notified Landlords' insurer of the complaint.

None of the defendants timely answered the complaint, and Wamsley moved for and was granted an entry of default judgment. Landlords later retained counsel and filed motions to set aside the default judgment entered against them on grounds of excusable neglect. See Ind. Trial Rules 55(C), 60(B)(1). The trial court granted Landlords' motions following a hearing and later denied Wamsley's motion to correct error. Wamsley appealed, and the Court of Appeals reversed. We now grant transfer and affirm the trial court.

An appellate court reviews a trial court's decision to set aside a default judgment for abuse of discretion, resolving any doubt as to the propriety of default judgment in favor of the defaulted party. Coslett v. Weddle Bros. Constr. Co., Inc. , 798 N.E.2d 859, 861 (Ind. 2003). The controlling question is whether there exists "even slight evidence of excusable neglect." Id. (quoting Security Bank & Trust Co. v. Citizens Nat'l Bank of Linton , 533 N.E.2d 1245, 1247 (Ind. Ct. App. 1989) ).

Our deferential standard of review compels us to affirm the trial court. There exists evidence of excusable neglect in this case - although that evidence is indeed exceedingly slight - and Landlords have made the requisite showing under Trial Rule 60(B)(1) of a meritorious defense.

Accordingly, we affirm the trial court's orders setting aside the default judgment against Landlords and denying Wamsley's motion to correct error, and we remand this case to the trial court for further proceedings consistent with this opinion.

All Justices concur.

      Joseph did not seek relief from the entry of default judgment against him and has not participated in this appeal. Following a damages hearing the trial court entered judgment against Joseph in the amount of $6,800,000. (Appellant's App. Vol. 2 at 8; Appellant's Br. at 7.)


text:
    In the MATTER OF the APPLICATION TO the BAR OF the STATE of Indiana
    Supreme Court Case No. 18S-BL-267
    Supreme Court of Indiana.
    FILED October 16, 2018.
    Order for Admission on Examination
    On October 16, 2018, the applicants of the Counties of the State of Indiana set opposite their respective names as set forth in Exhibit "A" (attached hereto and made a part hereof) personally appeared in open Court. The State Board of Law Examiners of the State of Indiana, after due investigation as to the moral character and fitness of the applicants and examination to determine their respective qualifications, has duly certified to this Court that each of the applicants has met the requirements for admission to the Bar under the laws of the State of Indiana and the rules of this Court.
    On motion of Curtis T. Hill, Jr., Attorney General of the State of Indiana, and Cathleen M. Shrader, President of the State Board of Law Examiners, both members of the Bar of this Court, each applicant named in Exhibit A is by Order of this Court now duly sworn and admitted to practice as an attorney at law, and their respective names are ordered entered upon the Roll of Attorneys of this Court in the office of the Clerk of the Supreme, Court of Appeals, and Tax Court.
    EXHIBIT A
    Last Name First Name Middle Name County Mueller Glen Kenneth Porter Sheean Katie Rose Marion Boyle Ryan Matthew Marion Henricks Eric Jordan Marion Katherine Sturges Richards Anna Elizabeth Monroe Burton Jordan Daniel Monroe Worden Aileen Joan Marion Girard Linda Ann Marion Walters Timothy William Tippecanoe Michaloski Matthew Alan Marion Stewart Zachary Ferrell Jefferson Princell Chelsea Lauren Marion Carpenter Jennifer Marie St. Joseph Pudlow Michael David Lake Grothoff Emily Jean Trygstad Monroe Danks Jonathan Alan Marion Eakle Alex Dwayne Marion Roseboom Carly Elizabeth Hendricks Weingartner Cara Nicole St. Joseph Peterson Harris Dillingham Porter Lester Ashten Reenea Marion Trolinder Isaac George Weldon Shelby Wicker Adam Christopher Marion Hughes Laura Kathleen Hamilton Hunter Haley Danyelle Allen Arnold Jagen Paul Delaware Blind Morgan Nicole Floyd Strickland James Robert Marion Lengerich Clayton Joseph Marion Brown Gabriel Xavier Marion Van Pelt Megan Ann Monroe Walker Michelle Lee Marion Spindler Alexander James Marion Christofeno Kayla Anne Porter Eggiman Matthew Michael Marion Soper Kirsten Rose Allen Griffin Kendall Clark Hendricks Miles Robert Tyler Pike Esposito Alexandria Marie Allen Gresham Trevor Kenneth Monroe Dygert Amy Lynn Marion Layne Cassee Diane Vanderburgh Patton David William Vanderburgh Hoogewerf Alyssa Renee Monroe Cicillian Kaitlynn Kay Porter Tapp Katherine Elizabeth Floyd Dodane Emily Taylor Marion English Katherine Lee Marion Huffman Elizabeth Ann Boone Gilham Joseph Neil Marion Mazyck Shamika Lynn Marion Hammond Jennifer Jeanne Hamilton Bishop Gary Lynn Dearborn Gordon Kristine Anne St. Joseph Martin Kimberly Meaghan Monroe Burgess Andrew Michael Allen Scarlott Allison Marie Hamilton Lehman Sawyer Christian Marion Oaks Andria Malynn La Porte Chambers Kyle Patrick Marion Kite Matthew Franklin Marion Dukandar Tina Marion Koenig Gabrielle Audrey Marion Chopra Allison Marie Monroe Dilday Kelsey Christina Marion Braish Zena Ahmad Monroe Oleksiak Jennifer Joanna Marion Dillon Kyle Andrew Hamilton Reichard Alejandra Hamilton Dudley Alex Jacob Marion Renschler Hunter Alan Marion Anglin Taliesin Pettit Marion Kulak Ash Olli Monroe Thomas Victoria Hicks Monroe Stuart Shannon Lynn Hamilton Hart Ashley Elizabeth Hamilton Jones Jeri Irene Marion Ritsema Cameron Dean Monroe Kern Alyson Marie Hamilton Lawrence Richard Jarrett Marion Welsh Christie Jean Lake St Pierre Alyson Marie Monroe Skelly Connor Michael Boone Parker Chase Montgomery St. Joseph Truchan Stephanie Jill Marion Brown Benjamin Elliott Marion Etienne William Michael Hendricks Williams Matthew Lamar St. Joseph Koressel Matthew Stephen Marion Siebe Craig Charles Marion Harkins Molly Elizabeth Marion Kempf Lisa Renee Vanderburgh Curosh Emily Lake Kibbe Steven Edward Monroe Osborne Amy Janelle Hancock Bertram Samantha Marie Marion Tempest Julie Anne Johnson Rieser Caitlin Grimes Clark Brock Lindsay Michelle Marion Macy Brenden Robert Marion Cavanaugh Corban Joseph La Porte Schroeder Jackson Lee Marion Critser Rebecca Ann Marion Foster Alexandria Michele Madison Conces Louise Katherine Marion Dettmer Andrew David Marion Daly Matthew Grant Jay Rey-Silva Sergio Daniel Hamilton Shoptaw Benjamin Joseph Marion Little Megan Christine Marion Mullican Katherine Barlow Marion Broadhead John Benjamin Marion Willis Kristin RoxAnn Howard Bemenderfer Thomas Jackson Marion Reneker Adam Robert Monroe Fealey Julianne Alyssa Monroe Shmukler Yaniv Jacob Marion Smith Amanda Benham Marion Lewandowski Elizabeth Marie Lake Hyer Lindsay Mikala Marion Lawson Jenna Rae Monroe Davis Brandie Lynn Marion Moore Katherine Marie Marion Holler Chad Harrison Marion Light Kiefer Andrew Marion Love Sarah Jane Monroe Spafford Halston Dean Hamilton Cano Roberto Scott Marion Parres Mitchell Wade Marion Pelech Emil Johnson Heavilon Michael Dean Delaware Costello Thomas Joseph Lake Myers Michael Robert Marion Gagnon Braylon Scot Marion Lucas Holly Dawn Marie St. Joseph Brounson Janeia LaShell Marion Rowlett Robert Austin Hamilton Bekkering Brandon Thomas Marion Stevens Tyler Jeffrey Floyd Schlake Joshua William Marion La Fornara Lisa Marie Monroe Piraino Tyler Joseph Monroe Skimehorn Allison Jean Marion Towsley Casie Jean De Kalb Hyslop Chelsea Steele Hendricks Cardwell Benjamin Walter Marion Humble Matthew Michael Monroe Kulik Christopher John Marion Harrison Joseph Heavrin Monroe Jacobsen Lauren Ashley Brown Niccum Stacey Marie Scott Robinson Jay Douglas Marion Kirkwood Wesley Neill Marion McGlone Alexandria Eda Monroe Wille Daniel Alexander Marion Guernsey Erica Lee Sawyer Marion Vandeventer James Benjamin Marion Wright Casey Eugene Bartholomew Rush Jacy Marie Monroe Wright Hayley Elizabeth Marion King Shannon Nichole Marion Uhey Steven Ross Kosciusko Snyder Drew Gregory Marion Land Matthew Ross Marion Johnson Erin Simone Lake Creighton Christopher Todd Marion Redgrave Benjamin Michael St. Joseph Dillon Robert Spencer Marion Dye Kelci Renae Marion Norfolk Dustin Michael Daviess Fehribach Joseph Lee Marion Mahone Zachary John Marion Soshnick Haley Lorraine Boone Wyss Justin Gregory Marion Miller Nolan Gregory Hamilton Raebel Seth Andrew Monroe Fretwell Tristan Carl Monroe Murray Sierra Aspen Hamilton Meek Andrew Joseph Marion Morgan Molly Kathryn Monroe Podlaski Alison Veronica Allen Weyreter John Robert Marion Miranda Alexandra Paige Marion Vieck Sidney Maria Jefferson Jacobs Andrew James Marion Forbes Katherine Marie Marion Swinney Josiah Jonathan Marion Muehlhauser Liesl Aryn St. Joseph Sullivan Patrick Connor Hamilton McLarren Connor William Marion Moyer Nathaniel Ellis Marion Guillot Amy Elizabeth Marion Marks Neely Elizabeth Marion Dick Julia Elizabeth Marion Jones Justin Wayne Johnson Smoker Seth Michael Marion DeVoe Julia Charlotte Marion Starks Samuel Isaac Marion Cates Pamela Marie Hamilton Eckerley Alyssa Ryanne Monroe Elser Sarah Olivia Marion Votaw Zachary Landon Monroe Sipe Timothy Ryan Allen Myers Shelley Lynn Hamilton Thompson David Benjamin Monroe Andreas Austin Ryan Monroe Gemelas Amalia June Lake Speichert Alyssa Nicole Lake Schultheis Luke Andrew Spencer Magner Brandon Robert Marion Huldin John Frederick Marion Lanning Blake Edward Franklin Huggins Edward Michael Marion Farmer Zachary Joseph Boone McGregor Daniel Richard Marion Lomeo Karen Tina-Elena Porter Lawver-Jones Kyle Scott Hancock McCoy Tiffany Ann Porter Christofeno Jon Michael Porter Langowski Nicholas Steven Porter Fife Samuel Lloyd Marion Ghani Omar Farruk Marion Ober Sarah Elizabeth Noble Chaiken Jarett Damon Delaware Sandoval Jose C Lake Hoffman James Arnon Porter Weiler Jennifer Anne Marion Dafoe Kasey Elaine Porter Arata Sean Patrick Allen Magner Andrew Michael Marion Hanna Lisa Lorraine Allen Davis Jessie Darlene Marion William Bonar Aaron Kuckewich Vigo Dogan Matthew Bruce Porter Leezer Travis Martin Marion Cannon Allyson Quinn Marion Smith BreAnna Sherrill Hamilton Bossinger Joseph Matthew Marion Williams Jordan Nicole Porter Byrley Taylor Christopher Marion Fitzpatrick Blake Pearce Vigo Kregear Vincent Calvin Marion Muir Nicholas Blair St. Joseph Shah Hasan Ali Hamilton Lyle George Richard Tippecanoe Gmerek Vincent Philip Marion Cundiff Kristopher Lee Marion Tempel Eric Gregory Perry Brown SaRetta Jeanne Marion Frangos David Charles Marion Fowler Haley Lynn Vanderburgh Kates Jillian De'Jenette Marion


author: Mathias, Judge.

text:
    Curtis PEARMAN, Appellant-Plaintiff, v. STEWART TITLE GUARANTY COMPANY, Appellee-Defendant.
    Court of Appeals Case No. 73A05-1708-PL-2040
    Court of Appeals of Indiana.
    Filed June 27, 2018 Rehearing denied September 11, 2018
    Appellant Pro Se: Curtis Pearman, Naples, Florida
    Attorney for Appellee: Scott J. Fandre, Krieg DeVault, LLP, Mishawaka, Indiana
   Mathias, Judge.

[1] Curtis Pearman ("Pearman") appeals the order of the Shelby Circuit Court granting summary judgment in favor of Stewart Title Guaranty Company ("STGC") in Pearman's claim for extra-contractual damages arising out of a title insurance policy issued by STGC to Pearman. On appeal, Pearman presents eleven issues, which we consolidate and restate as the following four:

I. Whether the trial court erred in granting summary judgment against Pearman on his claim of negligent misrepresentation against STGC;
II. Whether the trial court erred in granting summary judgment against Pearman on his claim of insurer bad faith against STGC;
III. Whether the trial court erred by failing to grant attorney fees to Pearman; and
IV. Whether the trial court erred by failing to grant punitive damages to Pearman.

[2] We affirm.

Facts and Procedural History

[3] This case involves Pearman's attempt to purchase certain real estate in Shelbyville, Indiana, known as the Tippecanoe Press Building complex. Originally, the Wickizer Family Trust owned the real estate, which consisted of four separate parcels. Shelby County Bank subsequently obtained title to three of these parcels. The first parcel was a thirty-thousand-square-foot commercial complex; the second parcel was a private alley; and the third parcel ("Parcel 3"), which is at issue here, contained a garage and parking spaces. Shelby County Bank was later placed in receivership, with the Federal Deposit Insurance Corporation ("FDIC") acting as receiver.

[4] In 2013, Pearman sought to purchase the three parcels owned by FDIC. On August 28, 2013, Hale Abstract Company, Inc. ("Hale") procured a title commitment from STGC regarding the three parcels. However, Parcel 3 had been sold to a nearby church by Shelby County Bank prior to its being placed in receivership. Pearman eventually paid FDIC $5,000 for a quitclaim deed to what he believed contained all three parcels. And STGC issued a title policy on October 16, 2013, for all three parcels.

[5] When Pearman learned that he did not have title to Parcel 3, he submitted a claim under the policy for Parcel 3 to STGC on January 10, 2014. On January 14, 2014, STGC sent Pearman notice that it had appointed a claims counsel to review his claim. On June 24, 2014, STGC's claims counsel offered to settle the matter for $8,000 in exchange for a release from liability regarding Parcel 3.

[6] Pearman did not accept the offer but filed a complaint against Hale and STGC

on June 27, 2014. The complaint sought a declaratory judgment that STGC had a duty to indemnify Pearman under the Policy and that STGC negligently misrepresented the status of the title to Parcel 3. The complaint also included a claim for breach of contract based on the Policy, a claim of damages as a result of the defendants' negligent misrepresentation, and a claim for attorney fees.

[7] STGC and Hale obtained an appraisal of Parcel 3, which determined that the value of the other parcels without Parcel 3 was diminished by $30,000. The defendants then offered to settle the case for this amount, but Pearman again declined the offer. Eventually, STGC made a litigation decision to file a counterclaim for a declaratory judgment, asking the trial court to approve the tender of the $70,000 policy limits to Pearman and end any further litigation, effectively interpleading the policy limits.

[8] On December 19, 2016, Pearman filed a motion for summary judgment, and on January 17, 2017, STGC filed a response and a cross-motion for summary judgment. The trial court held a hearing on both motions on January 18, 2017. On March 22, 2017, the trial court entered findings of fact and conclusions of law granting STGC's motion for summary judgment, thereby entering an award of the $70,000 policy limits to Pearman. The court's summary judgment order otherwise denied Pearman's motion for summary judgment as to its claims against STGC.

[9] On April 20, 2017, Pearman filed a motion to correct error. Five days later, the court set the matter for a hearing to be held on May 31, 2017. STGC filed a response to Pearman's motion on May 8, 2017. On May 31, 2017, the trial court held a hearing on Pearman's motion to correct error. On June 29, 2017, the trial court entered an order on its chronological case summary ("CCS") stating that it was, pursuant to its authority under Indiana Trial Rule 53.3, extending the deadline for its ruling on the motion to correct error to July 31, 2017. The trial court then entered its order denying Pearman's motion to correct error on that date. Pearman filed his notice of appeal on August 24, 2017, and this appeal ensued.

Standard of Review

[10] Our standard for reviewing a trial court's order granting a motion for summary judgment is well settled. A trial court should grant a motion for summary judgment only when the evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Altevogt v. Brand , 963 N.E.2d 1146, 1150 (Ind. Ct. App. 2012) (citing Ind. Trial Rule 56(C) ). The trial court's grant of a motion for summary judgment comes to us cloaked with a presumption of validity. Id. " 'An appellate court reviewing a trial court summary judgment ruling likewise construes all facts and reasonable inferences in favor of the non-moving party and determines whether the moving party has shown from the designated evidentiary matter that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law.' " Id. (quoting Dugan v. Mittal Steel USA Inc. , 929 N.E.2d 184, 186 (Ind. 2010) ). However, a de novo standard of review applies where the dispute is one of law rather than fact. Id. On appeal, we examine only those materials designated to the trial court on the motion for summary judgment, and we must affirm the trial court's entry of summary judgment if it can be sustained on any theory or basis in the record. Id.

I. Negligent Misrepresentation

[11] Pearman first argues that the trial court erred as a matter of law for not finding STGC liable for negligent misrepresentation in its title commitment. Pearman notes that the trial court found Hale liable for negligent misrepresentation, but failed to make a similar determination of liability with regard to STGC.

[12] The tort of negligent misrepresentation has been described as follows:

One who, in the course of his business, profession, or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

U.S. Bank, N.A. v. Integrity Land Title Corp. , 929 N.E.2d 742, 747 (Ind. 2010) (quoting Restatement (Second) of Torts § 552 (1977) ).

[13] In U.S. Bank , our supreme court considered the issue of whether a title insurer could be liable under a theory of negligent misrepresentation, separate and apart from the contractual obligations of the title policy itself. In addressing this question, the court first noted that:

We agree with the authorities which hold that there may be tort liability for misrepresentations made in preliminary commitments for title insurance. In our view, such commitments provide an essential service to prospective buyers and lenders. They are told what transactions must take place before they can receive clear title or an effective security.

U.S. Bank , 929 N.E.2d at 749 (quoting Bank of California, N.A. v. First Am. Title Ins. Co. , 826 P.2d 1126, 1129 (Alaska 1992) ).

[14] The U.S. Bank court also observed that insureds, escrow agents, and lenders typically rely on preliminary title reports. 929 N.E.2d at 749. Title insurance companies not only have full knowledge of this reliance but also encourage such reliance. Id. "Title searches are frequently required in situations involving transactions in which the state of the title must be known accurately or the customer foreseeably will suffer harm that is both certain and direct." Izynski v. Chicago Title Ins. Co. , 963 N.E.2d 592, 597 (Ind. Ct. App. 2012) (citing U.S. Bank , 929 N.E.2d at 749 ), trans. denied . "Title insurers give a preliminary commitment to property purchasers or lenders before the closing of the real estate transaction. The buyer or lender then may negotiate with the seller or borrower for the removal of any listed title defects, bargain to pay a lower amount to take subject to those risks, or rescind the transaction." Id. (citing U.S. Bank , 929 N.E.2d at 749 ). Thus, a buyer or lender who receives a clear preliminary commitment at this stage of the transaction perceives it to be a representation that the seller or borrower has a clear title and may close the transaction in reliance upon it. Id. (citing U.S. Bank , 929 N.E.2d at 749 ). All of this would, at first blush, seem to support Pearman's claim.

[15] Importantly, however, the U.S. Bank court held that a title insurance company could be held liable to a lender under the theory of negligent misrepresentation "if the title company and the lender did not have a contractual relationship." Id. (emphasis added) (citing U.S. Bank , 929 N.E.2d at 745 ). In U.S. Bank , the lender, Integrity, argued that it was not in contractual privity with U.S. Bank. 929 N.E.2d at 745. "This," our supreme court held, was "a critical point." Id. The court held that, "[w]ere there to be a contract between Integrity and U.S. Bank, the parties in all likelihood would be relegated to their contractual remedies." Id. Indeed, the U.S. Bank court explicitly declined to "adopt the proposition that a tort claim for negligent misrepresentation may be brought where the parties are in contractual privity." Id. at 749 n.6.

[16] Here, there is no genuine issue of material fact regarding whether Pearman and STGC are in contractual privity. They are. STGC issued the title commitment to Pearman, and the title insurance policy lists Pearman as the named insured. Thus, pursuant to U.S. Bank , Pearman may not bring a claim of negligent misrepresentation against STGC because the parties are in contractual privity. See id. ; cf . Izynski , 963 N.E.2d at 597 (holding that buyers were not in contractual privity with title insurance company at the time they agreed to purchase the property because the title commitment had been issued to a different prospective buyer and that buyers could therefore sue title insurer for negligent misrepresentation). We therefore cannot say that the trial court erred by granting summary judgment in favor of STGC with regard to negligent misrepresentation.

II. Bad Faith

[17] Pearman also claims that the trial court should have found STGC liable for various acts of bad faith. "Indiana law has long recognized that there is a legal duty implied in all insurance contracts that the insurer deal in good faith with its insured." Erie Ins. Co. v. Hickman ex rel. Smith , 622 N.E.2d 515, 518 (Ind. 1993).

An insurance company's duty of good faith and fair dealing includes the obligation to refrain from: (1) making an unfounded refusal to pay policy proceeds; (2) causing an unfounded delay in making payment; (3) deceiving the insured; and (4) exercising an unfair advantage to pressure an insured into settlement of his claim. To prove bad faith, the plaintiff must establish by clear and convincing evidence that the insurer had knowledge that there was no legitimate basis for denying liability. Poor judgment or negligence do not amount to bad faith; the additional element of conscious wrongdoing must also be present. Thus, [a] finding of bad faith requires evidence of a state of mind reflecting dishonest purpose, moral obliquity, furtive design, or ill will.

Missler v. State Farm Ins. Co. , 41 N.E.3d 297, 302 (Ind. Ct. App. 2015) (citations and internal quotations omitted).

[18] Here, however, Pearman's did not bring a claim of bad faith against STGC in his complaint. In fact, bad faith is not mentioned in his complaint at all. A claim that is not pleaded cannot be presented for the first time in a motion for summary judgment. See 5200 Keystone Ltd. Realty, LLC v. Filmcraft Labs., Inc. , 30 N.E.3d 5, 12 (Ind. Ct. App. 2015).

[19] Pearman relies upon paragraph 38 of his complaint, which is under the declaratory judgment section of the complaint and provides as follows:

38. Pearman seeks a declaration from the court whether Stewart has committed a tort separate and distinct from any contractual obligations of Stewart for failure of the Commitment and/or Policy to disclose the 2008 Deed, The First Baptist Church of Shelbyville Indiana's interest in Parcel III, and the Tax Parcel.

Appellant's App. Vol. 2, p. 46. However, asking the court to declare that STGC committed a tort is not equivalent to adequately pleading a claim of insurer bad faith.

[20] Pearman also claims that he put STGC on notice of his bad faith claims in paragraphs 40 and 43 of his complaint. These paragraphs provide:

40. Stewart has failed to perform by wrongfully refusing to indemnify Pearman and has failed to acknowledge Stewart's responsibilities for liabilities arising from Parcel III and the 2008 Deed, which constitutes a breach of the Policy .
* * *
43. Pearman has performed all conditions precedent to recover under the Policy and Commitment : Pearman has not excused Stewart's non-performance.

Id. at pp. 46-47 (emphases added).

[21] These paragraphs are set forth under Count II of the complaint, which alleges a breach of contract. These paragraphs allege a breach of the Policy and the right to recover under the Policy, respectively. There is nothing alleged in these paragraphs, or the rest of the complaint, that would have put STGC on notice that Stewart was seeking recovery under a theory of insurer bad faith. See Shields v. Taylor , 976 N.E.2d 1237, 1245 (Ind. Ct. App. 2012) (holding that, under notice pleading, the issue of whether a complaint sufficiently pleads a certain claim turns on whether the opposing party has been sufficiently notified concerning the claim so as to be able to prepare to meet it).

[22] Nor is there any indication that STGC impliedly consented to trying the newly raised issue of bad faith. To the contrary, when Pearman first raised the issue of bad faith in his cross-motion for summary judgment, STGC argued in its response thereto that Pearman had not pleaded a claim of insurer bad faith and could not obtain summary judgment in his favor for this reason. Appellant's App. Vol. 4, p. 40; See also 5200 Keystone Ltd ., 30 N.E.3d at 13 (holding that common-law remedies were unavailable to plaintiff where plaintiff did not plead any common-law theory of relief and instead presented the issue for the first time in its brief opposing summary judgment and that defendant did not impliedly consent to the non-pleaded issue where defendant objected to the newly raised issues). We therefore conclude that the trial court did not err in rejecting Pearman's claims of insurer bad faith.

III. Attorney Fees

[23] As part of his argument regarding bad faith, Pearman also claims that the trial court erred by not granting him attorney fees. Indiana follows the American Rule, whereby each party pays his or her own attorney fees. Liberty Mut. Ins. Co. v. OSI Indus., Inc. , 831 N.E.2d 192, 205 (Ind. Ct. App. 2005), trans. denied . Thus, an award of attorney fees is not permissible in the absence of a statute or some agreement or stipulation authorizing such an award. Id. Pearman refers to no statute or agreement that would permit the trial court to award attorney fees in this case. STGC notes that its Policy provided for payment of attorney fees only in one specific circumstance, i.e., when a third party asserted a claim covered by the policy adverse to the insured. Here, no such third party has asserted a claim against Pearman. Accordingly, we cannot say that the trial court erred in denying his request for attorney fees.

IV. Punitive Damages

[24] Pearman also claims that STGC should be subject to punitive damages based on its behavior in this case. Again, however, Pearman did not include a claim for punitive damages in his complaint. Nor did he raise the issue of punitive damages in his cross-motion for summary judgment. As we explained in GKC Indiana Theatres, Inc. v. Elk Retail Investors, LLC :

As a general rule, a party may not present an argument or issue to an appellate court unless the party raised that argument or issue to the trial court. This rule exists because trial courts have the authority to hear and weigh the evidence, to judge the credibility of witnesses, to apply the law to the facts found, and to decide questions raised by the parties. Appellate courts, on the other hand, have the authority to review questions of law and to judge the sufficiency of the evidence supporting a decision. The rule of waiver in part protects the integrity of the trial court; it cannot be found to have erred as to an issue or argument that it never had an opportunity to consider. Conversely, an intermediate court of appeals, for the most part, is not the forum for the initial decisions in a case. Consequently, an argument or issue not presented to the trial court is generally waived for appellate review.

764 N.E.2d 647, 651 (Ind. Ct. App. 2002) (citations omitted). Because Pearman did not present this issue below, he may not do so for the first time on appeal.

Conclusion

[25] The trial court did not err in granting summary judgment in favor of STGC on Pearman's claim of negligent misrepresentation because Pearman is in contractual privity with STGC, and a claim of negligent misrepresentation is therefore unavailable to him. Nor did the trial court err in granting summary judgment in favor of STGC on Pearman's claim of insurer bad faith because Pearman did not present a claim of bad faith in his complaint. The trial court did not err in declining Pearman's request for attorney fees, and Pearman's claim for punitive damages cannot be presented for the first time on appeal. We therefore affirm the trial court's judgment.

[26] Affirmed.

Najam, J., and Barnes, S.J., concur.

      Pearman claims that he hoped to purchase the fourth parcel from the Wickizer Trust.

      As explained in Izynski v. Chicago Title Insurance Co ., 963 N.E.2d 592 (Ind. Ct. App. 2012), trans. denied :
      A title commitment is a document that describes the property as the title insurer is willing to insure it and contains the same exclusions and general and specific exceptions as later appear in the title insurance policy. Ordinarily a commitment is ordered by the seller for the purpose of exhibiting it to the buyer as a representation of the quality of the title seller expects to sell to the buyer. A title commitment naturally contemplates a search by the title insurer of the chain of title, an opinion by an expert of what the search reveals, a guaranty that the search was accurate and that the title commitment expresses the quality of the title of the seller as shown by the record. The person who seeks a title insurance commitment expects to obtain a professional title search, as well as a professional legal opinion as to the condition of the title and a guaranty that the title expressed in the commitment will be insured to the extent of the policy coverage. The title insurer does not agree to clear the title; rather by its commitment, the title company agrees to afford coverage in a title policy later to be issued insuring the title according to its commitment.
      Id. at 594 (citations omitted). Here, STGC issued an initial title commitment, then later issued a title policy.

      The trial court's order granted summary judgment in favor of Pearman on certain claims against Hale.

      Pearman has proceeded pro se at the summary judgment proceedings and on appeal. Indiana courts have long held that pro se litigants are held to the same legal standards as licensed attorneys. Basic v. Amouri , 58 N.E.3d 980, 983 (Ind. Ct. App. 2016)reh'g denied .

      In his argument regarding negligent misrepresentation, Pearman cites Dreibelbiss Title Co. v. MorEquity, Inc. , 861 N.E.2d 1218 (Ind. Ct. App. 2007), trans. denied , for the proposition that the policy limits do not control the amount of damages. See id . at 1222 n.5 (noting that we have previously held that " 'policy limits restrict the amount the insurer may have to pay in the performance of the contract, not the damages that are recoverable for its breach." (quoting Ind. Ins. Co. v. Plummer Power Mower & Tool Rental, Inc. , 590 N.E.2d 1085, 1090 (Ind. Ct. App. 1992) (emphasis added in Dreibelbiss ) ). We find Dreibelbiss to be inapposite here, as Pearman may not bring a claim of negligent misrepresentation at all, and we are therefore not dealing with the issue of the damages he might recover.

      The only authority Pearman cites in support of his claim for attorney fees is American Family Mutual Insurance Co. v. C.M.A. Mortgage, Inc. , 682 F.Supp.2d 879 (S.D. Ind. 2010). However, that case has nothing to do with attorney fees. Instead, at issue was whether the insurance company was required to pay a settlement entered into by its insured without the consent of the insurance company. Id. at 890.

      Specifically, Paragraph 5(a) of the Conditions of the Policy, under the title "Determination and Extent of Liability," provided:
      Upon written request by the Insured, and subject to the options contained in Section 7 of these Conditions, the Company, at its own cost and without unreasonable delay, shall provide for the defense of an Insured in litigation in which any third party asserts a claim covered by this policy adverse to the Insured. This obligation is limited to only those stated causes of action alleging matters insured against by this policy. The Company shall have the right to select counsel of its choice (subject to the right of the Insured to object for reasonable cause) to represent the Insured as to those stated causes of action. It shall not be liable for and will not pay the fees of any other counsel. The Company will not pay any fees, costs, or expenses incurred by the Insured in the defense of those causes of action that allege matters not insured against by this policy.
      Appellant's App. Vol 2, p. 106.


author: Najam, Judge.

text:
    Scott A. HALL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 17A-CR-3022
    Court of Appeals of Indiana.
    FILED August 1, 2018
    Attorney for Appellant: R. Thomas Lowe, Vissing Law LLC, Jeffersonville, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Ian McLean, Supervising Deputy Attorney General, Indianapolis, Indiana
   Najam, Judge.

Statement of the Case

[1] Scott A. Hall appeals the trial court's revocation of his placement in community corrections. He raises two issues for our review, which we revise and restate as follows:

1. Whether the trial court lacked jurisdiction to hold a hearing on the petition to revoke his placement in community corrections because the petition had been filed by a deputy prosecutor instead of the director of the community corrections program.
2. Whether the trial court committed fundamental error when it revoked his placement in community corrections.

[2] We affirm.

Facts and Procedural History

[3] On July 7, 2011, the State charged Hall with burglary, as a Class A felony, in Cause Number 10D01-1107-FA-43 ("FA-43"). Following a trial, a jury found him guilty as charged, and the trial court entered its judgment of conviction. Thereafter, "pursuant to an agreement reached by the parties," the trial court sentenced Hall to twenty years, all to be served in a home incarceration program through community corrections. Appellant's App. Vol. III at 59.

[4] On July 14, 2016, the State charged Hall with attempted robbery, as a Level 3 felony, and battery, as a Class A misdemeanor, in Cause Number 72C01-1607-F3-11 ("F3-11") for crimes that Hall had committed on July 8. Accordingly, on October 24, the State, by the deputy prosecuting attorney and at the request of Hall's probation officer, filed a petition to revoke Hall's placement in the home detention program in FA-43. Specifically, the State alleged that Hall had violated the terms of his placement when he had committed the crimes of robbery and battery on July 8.

[5] On September 19, 2017, Hall pleaded guilty to robbery, as a Level 5 felony, in F3-11. Thereafter, the trial court held a hearing on the State's petition to revoke Hall's placement in community corrections in FA-43. During that hearing, Hall admitted to the alleged violation. The trial court accepted Hall's admission and found that he had violated the terms of his home incarceration program. The court then heard evidence concerning Hall's sentence. Hall offered, and the trial court admitted, a letter from the community corrections program in which it recommended that Hall remain in community corrections. At the conclusion of the hearing, the trial court revoked Hall's placement in the community corrections program and ordered him to serve the balance of his previously suspended sentence in the Department of Correction. This appeal ensued.

Discussion and Decision

Issue One: Jurisdiction to Hear the Petition

[6] Hall first contends that the trial court abused its discretion when it held the hearing on the State's petition to revoke his placement in community corrections. Specifically, Hall asserts that the petition was not properly before the trial court because the deputy prosecuting attorney, at the request of the probation officer, had filed the petition when the petition could only be filed by the director of the community corrections program. To support his assertion, Hall relies on Indiana Code Section 35-38-2.6-5 (2018), which provides that, if a person who is placed in a community corrections program violates the terms of the placement, "the community corrections director may ... [r]equest that the court revoke the placement[.]"

[7] But, here, the community corrections director did not file the petition. Instead, the deputy prosecuting attorney, at the request of Hall's probation officer, filed the petition to revoke Hall's placement in community corrections. Hall therefore asserts that the trial court "lacked any jurisdiction" to hold a hearing on the State's petition to revoke his placement in community corrections.

[8] But we need not decide whether there might have been any error in the filing of the petition by the prosecuting attorney instead of the director of community corrections because we hold that any potential error was a procedural, not jurisdictional, error and that Hall did not preserve the issue for our review. In reaching this conclusion, we rely on our Supreme Court's decisions in K.S. v. State , 849 N.E.2d 538 (Ind. 2006), and Packard v. Shoopman , 852 N.E.2d 927 (Ind. 2006), which we find to be instructive.

[9] In K.S. , a juvenile sought to set aside his delinquency adjudication because the trial court had not approved the filing of the delinquency petition. K.S. , 849 N.E.2d at 541. As such, the juvenile claimed that the court lacked jurisdiction to hear the case. Id. On appeal, our Supreme Court noted that "[a]ttorneys and judges alike frequently characterize a claim of procedural error as one of jurisdictional dimension. The fact that a court may have erred along the course of adjudicating a dispute does not mean it lacked jurisdiction." Id. The court further explained that "[r]eal jurisdictional problems would be, say, a juvenile delinquency adjudication entered in a small claims court, or a judgment rendered without any service of process." Id. at 542 (emphasis in original). The court noted that " '[t]he question of subject matter jurisdiction entails a determination of whether a court has jurisdiction over the general class of actions to which a particular case belongs' " and that the juvenile court had exclusive jurisdiction over cases involving juvenile delinquency. Id. (quoting Troxel v. Troxel , 737 N.E.2d 745, 749 (Ind. 2000) ). Thus, our Supreme Court held that the juvenile's claim was one of procedural error and that the trial court had jurisdiction over the case. Id.

[10] And in Packard , a taxpayer appealed the assessment of his real property. 852 N.E.2d at 928. The Indiana Board of Tax Review denied the taxpayer's appeal, and the taxpayer petitioned the Tax Court to review the board's decision. Id. The Assessor moved to dismiss the taxpayer's appeal on the ground that the taxpayer had failed to file the petition for judicial review within the statutorily mandated timeframe and, thus, that the Tax Court lacked subject matter jurisdiction to hear the appeal. Id. at 929. Our Supreme Court concluded that the "timely filing of a complaint in the Tax Court is 'jurisdictional' only in the sense that it is a statutory prerequisite to the docketing of an appeal in the Tax Court[.]" Id. at 931. That court further held that "[t]imely filing relates neither to the merits of the controversy nor the competence of the court to resolve it." Id. at 932. And "[b]ecause the timeliness of filing does not affect the subject matter jurisdiction of the Tax Court, any objection to the timeliness of filing is a procedural rather than jurisdictional error that can be waived if not raised at the appropriate time." Id. at 931-32.

[11] Here, the filing of a petition to revoke a person's placement in a community corrections program by the appropriate person is similarly "jurisdictional" only in the sense that it is a statutory prerequisite to the filing of the petition. See id. at 931. The position of the person who filed the petition relates neither to the merits of the controversy or the competence of the court to resolve it. See id. at 932. Further, there is no question that the trial court had jurisdiction over the general class of actions to which the petition belongs. See K.S. , 849 N.E.2d at 542. Indeed, "[a]ll circuit courts have ... original and concurrent jurisdiction in all civil cases and in all criminal cases[.]" I.C. § 33-28-1-2.

[12] Accordingly, we hold that any error in the filing of the petition to revoke Hall's placement in community corrections by the prosecuting attorney instead of the director of community corrections would have been a procedural error and not a jurisdictional error. To preserve appellate review of a procedural error, Hall was required to properly object to the error in the trial court, which he did not do. Thus, he has not preserved for our review the merits of his claim on this issue.

Issue Two: Revocation of Placement

[13] Hall next contends that the trial court committed fundamental error when it revoked his placement because he "was never properly advised of the allegations against him because of numerous factual errors and incorrect law [sic] that were contained in the petition[.]" Appellant's Br. at 6. Specifically, Hall asserts that the petition contained the following factual and legal inaccuracies: 1) the petition included numerous references to violations of the probation home detention program even though Hall was in the community corrections program; 2) the petition cited to an outdated version of the community corrections statute; 3) the petition referenced a plea agreement, but Hall was convicted following a jury trial; 4) the petition cited a statute governing probation proceedings; and 5) the petition was signed by the chief probation officer instead of the director of the community corrections program.

[14] Hall acknowledges that he "did not object to any of the due process issues, either statutory or constitutional, in the proceedings below and therefore they have not been properly preserved for appeal." Id. at 5. Thus, to prevail on appeal, Hall must establish that the trial court committed fundamental error.

[15] To prove fundamental error, Hall must " 'show that the trial court should have raised the issue sua sponte due to a blatant violation of basic and elementary principles, undeniable harm or potential for harm, and prejudice that makes a fair trial impossible.' " Taylor v. State , 86 N.E.3d 157, 162 (Ind. 2017) (quoting Harris v. State , 76 N.E.3d 137, 140 (Ind. 2017) ). "A 'finding of fundamental error essentially means that the trial judge erred ... by not acting when he or she should have,' even without being spurred to action by a timely objection." Brewington v. State , 7 N.E.3d 946, 974 (Ind. 2014) (quoting Whiting v. State , 969 N.E.2d 24, 34 (Ind. 2012) ) (omission original to Brewington ).

[16] Hall contends that he was denied due process because he did not receive written notice of the claimed violations against him. It is well settled that, "[w]hen the State seeks to revoke a defendant's placement in a Community Corrections Program, the defendant is 'not entitled to the full due process rights afforded a defendant in a criminal proceeding.' " Pope v. State , 853 N.E.2d 970, 972 (Ind. Ct. App. 2006) (quoting Parker v. State , 676 N.E.2d 1083, 1085 (Ind. Ct. App. 1997) ). Nonetheless, "a defendant in a community corrections program is entitled to representation by counsel, written notice of the claimed violations , disclosure of the opposing evidence, an opportunity to be heard and present evidence, and the right to confront and cross-examine witnesses in a neutral hearing before the trial court." Cox v. State , 706 N.E.2d 547, 550 (Ind. 1999) (emphasis added).

[17] Hall specifically contends that he did not receive written notice of the claimed violation because "the right to written notice of the violations includes the right to have an accurate representation of the allegation and the law pertaining thereto." Appellant's Br. at 10. In essence, Hall asserts that he was denied due process because the petition to revoke his placement contained factual and legal inaccuracies. We cannot agree.

[18] While the petition to revoke his placement in community corrections did contain some inaccuracies, none of those inaccuracies related to the violations of the community corrections program that the State claimed Hall had committed. Indeed, the petition clearly outlined the claimed violations. Specifically, the State alleged that Hall had failed to follow the rules of his program when he committed a subsequent crime. Accordingly, Hall was given notice of the claimed violations so that he was able to prepare his defense. See Thompson v. State , 761 N.E.2d 467, 470 (Ind. Ct. App. 2002) ("it is well-established that due process requires that a defendant be given notice of the crime or crimes with which he is charged so that he can prepare his defense"). Further, Hall had an opportunity to defend himself during the hearing on the petition to revoke his placement. But instead of asserting a defense, Hall affirmatively admitted the allegation contained within the petition.

[19] Hall received written notice of the claimed violation. As such, the trial court did not deprive Hall of his due process rights when it revoked his placement in community corrections. Consequently, Hall has not demonstrated that the trial court committed fundamental error.

[20] In conclusion, we hold that any error in the filing of the petition to revoke Hall's placement by the deputy prosecutor instead of the director of community corrections was a procedural, not a jurisdictional, error. And Hall did not preserve our review of the merits of that issue on appeal because he failed to raise it in the trial court. We also hold that the trial court did not commit fundamental error when it held a hearing on the State's petition to revoke his placement despite the fact that the petition contained inaccuracies because Hall received written notice of the specific claimed violation against him, which enabled him to prepare a defense. As such, we affirm the trial court's order.

[21] Affirmed.

Crone, J., and Pyle, J., concur.

      Hall also relies on Morgan v. State , 87 N.E.3d 506, 509 (Ind. Ct. App. 2017), trans. denied , to support his assertion that only the community corrections director can file the petition to revoke his placement. But, in Morgan , this court analyzed whether a statutory change made by the Indiana General Assembly in 2015 to Indiana Code Section 35-38-2.6-5 was unconstitutional. Prior to 2015, the statute provided that "the court may" change the terms of the placement, continue the placement, or revoke the person's placement if the person violates the terms of the community corrections program. Ind. Code § 35-38-2.6-5 (2014). However, the statute now provides that "the community corrections director may" change the terms of placement, continue the placement, reassign the person to a different program, or request that the court revoke a person's placement if the person violates the terms of the community corrections program. I.C. § 35-38-2.6-5 (2018). This court held that the revised statute was not an unconstitutional violation of separation of powers because "it remains the trial court's duty to determine whether revocation will be ordered." Morgan , 87 N.E.3d at 510. Thus, Morgan is not controlling, and Hall's reliance on Morgan is misplaced.

      Because Hall did not preserve the issue for our review, he could only prevail on appeal if he could establish that the trial court committed fundamental error. Fundamental error requires the appellant to demonstrate that the alleged error constituted a blatant violation of elementary principals of due process. See Taylor v. State , 86 N.E.3d 157, 162 (Ind. 2017). However, Hall did not make a claim of fundamental error on this issue in his principal brief. Instead, he asserted it for the first time in his reply brief. "[P]arties may not raise an issue, such as fundamental error, for the first time in a reply brief." Curtis v. State , 948 N.E.2d 1143, 1149 (Ind. 2011). As such, he has waived any purported issue of fundamental error he may have had. See id.

      Hall briefly asserts that his rights were violated because he was never advised as to how his actions violated the rules of the community corrections program and because the rules of the program were never presented as evidence during the hearing. But, during the hearing, Hall affirmatively acknowledged that the program had particular rules and regulations, including a rule against committing another criminal offense, and that he had violated that rule when he committed the subsequent robbery offense. Tr. Vol. II at 5-6. Further, "the commission of a crime while serving time in the community corrections program is always grounds for revocation, even if the sentencing court fails to notify the person of such condition." Decker v. State , 704 N.E.2d 1101, 1103 (Ind. Ct. App. 1999).