author:
DAVID, Justice.
      DICKSON, C.J., RUCKER, J.,

text:
    HOLIDAY HOSPITALITY FRANCHISING, INC., Appellant (Defendant below), v. AMCO INSURANCE COMPANY, Appellee (Plaintiff below).
    No. 33S01-1206-CT-312.
    Supreme Court of Indiana.
    March 6, 2013.

      Robert B. Clemens, Curtis T. Jones, Indianapolis, IN, Attorneys for Appellant.
    Danford R. Due, Scott E. Andres, Indianapolis, IN, Attorneys for Appellee.
   DAVID, Justice.

A motel and an insurance company entered into an insurance contract that specifically excluded several categories of injury and harm — including harm resulting from acts of sexual molestation by motel employees. After an off-duty motel employee (now convicted for his crimes) molested a young motel guest, the motel’s insurer sought a declaratory judgment to enforce its reading of the contract disclaiming coverage for, and its duty to defend against, a civil complaint brought by the motel guest. The trial court granted summary judgment in favor of the insurer, and the Court of Appeals reversed. We now affirm the trial court.

Facts and Procedural History

In mid-May 2007, a minor, was a guest at a motel in New Castle, Indiana, operating under the name of Holiday Inn Express-New Castle, LLC (“Holiday Inn Express”), and owned by Anil Megha. The motel was a Holiday Inn franchise, established pursuant to an agreement with Holiday Hospitality Franchising, Inc. During this stay, R.M.H. was molested by a Holiday Inn Express employee, Michael Forshey, who entered R.M.H.’s locked room at night.

At the time R.M.H. was molested, Holiday Inn Express was insured under a policy issued by Amco Insurance Company (“AMCO”). Holiday Hospitality and Me-gha were additional insureds under the policy’s terms. The policy provided coverage for, as well as a duty to defend against, claims for bodily injury and personal and advertising injury liability. However, AMCO had no duty to defend against any suit to which the policy did not apply.

AMCO’s policy expressly disclaimed coverage for both bodily injury and personal and advertising injury when the injury arose out of intentional conduct. Specifically, it excluded coverage for bodily injury “which is expected or intended by the insured,” even if the actual injury “[i]s of a different kind, quality or degree than initially expected or intended,” or it “[i]s sustained by a different person, entity, real property, or personal property than that initially expected or intended.” (App. at 129.) For personal and advertising injury, the policy did not apply to such injury “[claused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict ‘personal and advertising injury.’ ” (App. at 136.)

The policy also disclaimed coverage for acts of molestation or abuse, by excluding any bodily injury or personal or advertising injury arising from “[t]he actual or threatened abuse or molestation by anyone of any person while in the care, custody or control of the insured.” (App. at 133, 137.). This included claims of negligent employment, investigation, supervision, reporting (or failure to report), or retention of any insured responsible for the abuse or molestation.

Additionally, AMCO only provided coverage for bodily injury caused by an “occurrence,” which the policy defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” (App. at 128, 149.) And finally, the policy contained a “Separation of Insureds” provision, providing that the policy applied “[a]s if each Named Insured were the only Named Insured ... and ... [separately to each insured against whom claim is made or ‘suit’ is brought.” (App. at 146.)

In September 2008, R.M.H.’s mother, S.H., sued Holiday Inn Express, Holiday Hospitality, and Megha. She claimed battery, intentional infliction of emotional distress, negligent hiring, negligent retention and supervision, and negligent infliction of emotional distress, all brought under agency and vicarious liability theories.

AMCO filed a separate complaint in January 2009, seeking a declaratory judgment that it owed no coverage for any potential liability arising from S.H.’s complaint, and also that it had no duty to defend Holiday Inn Express, Holiday Hospitality, or Me-gha. AMCO then filed a motion for summary judgment, with S.H. and Holiday Hospitality filing separate responses that Holiday Inn Express and Megha later joined. The trial court granted AMCO’s motion, framing its order as a final judgment and appealable order.

Holiday Hospitality appealed. S.H., Holiday Inn Express, and Megha did not file a notice of appeal or joinder in Holiday Hospitality’s appeal, but instead filed “Briefs of Interested Parties.” The Court of Appeals reversed and remanded, concluding that an “occurrence” took place under the terms of AMCO’s insurance policy, and that there remained a genuine issue of material fact as to whether R.M.H. was “in the care, custody or control” of Holiday Inn Express at the time Forshey molested him. Holiday Hospitality Franchising, Inc. v. Amco Ins. Co., 955 N.E.2d 827, 836 (Ind.Ct.App.2011).

On rehearing, the Court of Appeals clarified that its reversal applied only to Holiday Hospitality, Holiday Hospitality Franchising, Inc. v. Amco Ins. Co., 963 N.E.2d 1125, 1125-26 (Ind.Ct.App.2012), because even though Appellate Rule 17(A) made S.H., Holiday Inn Express, and Me-gha “parties to the appeal,” that did not relieve them of their Rule 9(A) obligation to file a notice of appeal within thirty days after a final judgment was entered against them or forfeit appellate relief, id. at 1126.

We granted transfer, thereby vacating the two Court of Appeals decisions. Holiday Hospitality Franchising, Inc. v. Amco Ins. Co., 969 N.E.2d 88 (Ind.2012) (table); Ind. Appellate Rule 58(A).

Standard of Review

Summary judgment is only appropriate when the moving party affirmatively shows that there are no genuine issues of material fact with regard to a particular issue or claim. Ind. Trial Rule 56(C); Town of Avon v. W. Cent. Conservancy Dist., 957 N.E.2d 598, 602 (Ind.2011). The non-moving party then bears the burden of coming, forward with designated evidence showing the existence of a genuine issue of material fact. Id.

An appellate court reviews these cases through the same lens, and we view all designated evidence and reasonable inferences in a light most favorable to the non-moving party; any doubts are resolved against the moving party. Id. We will affirm a trial court’s summary judgment on any theory supported by the record. Woodruff v. Ind. Family & Soc. Servs. Admin., 964 N.E.2d 784, 790 (Ind.2012). When the facts are undisputed, reversal is only appropriate if the trial eourt incorrectly applied the law to those facts. Id.

The construction of a contract is particularly well-suited for de novo appellate review, because it generally presents questions purely of law. Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind.1997). Insurance contracts are governed by the same rules of construction as any other contract. Id. Clear and unambiguous policy language is given its ordinary meaning, id., in order to accomplish the primary goal of contract interpretation: “to determine the intent of the parties at the time the contract was made as disclosed by the language used to express their rights and duties,” First Fed. Sav. Bank of Ind. v. Key Markets, Inc., 559 N.E.2d 600, 603 (Ind.1990).

Where contractual language is ambiguous, we generally resolve those ambiguities in favor of the insured, Guzorek, 690 N.E.2d at 667, but will not do so if such an interpretation fails to harmonize the provisions of the contract as a whole, see Key Markets, 559 N.E.2d at 603. However, the failure to define a contractual term does not necessarily make that term ambiguous, Guzorek, 690 N.E.2d at 667, nor does a simple disagreement about the term’s meaning. “Rather, an ambiguity exists where the provision is susceptible to more than one reasonable interpretation.” Id.

Discussion

AMCO sought summary judgment based on two distinct provisions of the contract. First, it said that the contractual definition of “occurrence” did not extend to For-shey’s criminal conduct or Holiday Inn Express’s decision to hire and retain him. Second, it argued that the policy specifically excluded coverage for acts of abuse and molestation, as well as coverage for any negligence in hiring or retaining someone committing those acts. Because we find this second issue dispositive on appeal, we need not address the first.

We think it obvious that the plain and ordinary meaning of the abuse/molestation exclusion as a whole is that both parties intended to exclude from coverage those claims arising from conduct like Forshe/s. However, the exclusion is limited to acts occurring when the victim is in the “care, custody or control” of an insured, making the issue a bit counter-intuitive. On one hand, the insurer is arguing that R.M.H. was under the “care, custody or control” of its insureds so it can deny coverage. And on the other hand, the insureds are arguing that R.M.H. was not under their “care, custody or control,” in order to obtain coverage; in essence, they seek insurance coverage for injury to an individual over whom they claim they had little (if any) power or authority.

Be that as it may, the phrase “care, custody or control” is undefined in the policy agreement, but no party claims it is ambiguous. Instead, they dispute the existence (or non-existence) of a genuine issue of material fact as to whether R.M.H. was “in the care, custody or control” of Holiday Inn Express, Holiday Hospitality, or Megha when he was molested; but they do so without advancing a particular definition for the phrase.

Holiday Hospitality points to Am. Family Mut. Ins. Co. v. Bentley, 170 Ind.App. 321, 352 N.E.2d 860 (1976), in which the Court of Appeals said “application of such clauses depends on the facts of each case.” Id. at 328, 352 N.E.2d at 864. And in this case, Holiday Hospitality says, there is no evidence that Holiday Inn Express, Me-gha, or Holiday Hospitality exercised any care or control over R.M.H., nor did S.H. expect for R.M.H. to be under anyone’s care or control other than his friend’s mother. “Thus, the issue of whether R.M.H. was in the care custody or control of Holiday Hospitality or the Franchisee Defendants presents a genuine issue of material fact that can not be determined on summary judgment.” (Appellant’s Br. at 15.)

AMCO argues that “it is readily evident that R.M.H. was in the ‘care’ of the motel at the time of the molestation,” because “the molestation took place in one of the motel’s rooms while R.M.H. was a guest at the motel.” (Appellee’s Br. at 16.) Because R.M.H. was a guest, he was therefore a business invitee owed a particular duty of care by Holiday Hospitality and its franchisees. “Put simply, the motel was legally charged with the ‘care’ of R.M.H. while he stayed at its premises and any reasonable person reading the Policy would understand as much.” (Appellee’s Br. at 17.)

For its part, the Court of Appeals rejected AMCO’s argument, concluding that being a business invitee “is not the same as being ‘in the care, custody or control’ of Holiday Inn.” Holiday Hospitality, 955 N.E.2d at 835. A hotel’s duty of care with respect to its guests “governs the responsibility given it to reasonably protect business invitees and to keep the business property in a reasonably safe condition,” but “[bjeing in the care, custody, or control of someone, however, requires more than a mere business invitee status. In the context of a hotel, it would require something additional, such as a minor being supervised by hotel employees.” Id.

These relative positions, however, are of little value without a defined frame of reference. Given that the parties seem to agree as to the unambiguous nature of the provision, we look to the “usual and common meaning unless, from the contract and the subject matter thereof, it is clear that some other meaning was intended.” Hilbert v. Conseco Serv., LLC, 836 N.E.2d 1001, 1008 (Ind.Ct.App.2005), trans. denied. Nothing in the terms of this contract indicates that the phrase “care, custody or control” is meant to have anything other than a plain and ordinary meaning. The lack of ambiguity also negates any need to construe the clause against the drafting party; instead we construe it to reflect the intent of the parties and harmonize it with the contract as a whole.

Webster’s defines “care” in this context as “[t]he function of watching, guarding, or overseeing.” Webster’s II New College Dictionary 168 (1995). “Custody” is defined as “[t]he act or right of guarding, esp. such a right granted by a court.” Id. at 280. “Control” means “[t]o exercise authority or influence over” or “[t]o hold in restraint.” Id. at 246. Black’s Law Dictionary is similar, defining “care” as “[u]n-der the law of negligence or of obligations, the conduct demanded of a person in a given situation,” Black’s Law Dictionary 240 (9th ed. 2009), defining “custody” as “[t]he care and control of a thing or person for inspection, preservation, or security,” id. at 441, and “control” as “[t]o exercise power or influence over,” id. at 378.

We think these are reasonable definitions for these terms as they are used in the insurance policy at issue. We also note that the policy lists the three terms in the disjunctive, thus not requiring all three to be satisfied for coverage to be excluded. The question, then, is whether the designated evidence is sufficient to hold, as a matter of law, that R.M.H. was in the “care,” “custody,” or “control” of Holiday Inn Express, Megha, or Holiday Hospitality. Bentley is correct in noting that this is a fact-sensitive inquiry, but that does not necessarily preclude summary judgment when the material facts are undisputed.

Here, it seems apparent from the facts that R.M.H. was not in the “custody” of Holiday Inn Express. We can reasonably imagine that he was, to some extent, under the “control” of Holiday Inn Express (i.e. the motel probably had the power to exercise some authority or power over R.M.H. if, for example, he smoked a cigarette in a non-smoking room, or made loud noises that disturbed neighboring guests); however, no such guest policies or rules are present in the record before us. As such, this conclusion would be pure speculation.

However, given the scope and context of the insurance policy, we believe the facts are sufficient to show, as a matter of law, that R.M.H. was in the “care” of Holiday Inn Express (as that term was used in the policy) at the time the molestation occurred. It is undisputed that R.M.H. was molested by Forshey while R.M.H. was a guest at Holiday Inn Express, staying in a room rented to the mother of R.M.H.’s friend. It is further undisputed that R.M.H. was in that guest room, behind a door locked by an electronic key provided by Holiday Inn Express, when Forshey entered and molested him. It is also undisputed that at this time— because of R.M.H.’s status as a guest— Holiday Inn Express owed him a duty of care by law.

The dissent points out that the evidence shows R.M.H.’s mother intended and expected him to be under the care of a friend’s mother — the adult actually renting the hotel room in which R.M.H. was molested — while staying at the hotel, and that at no point did R.M.H.’s mother communicate to any of the defendants a desire or request for a hotel employee to provide care for R.M.H. But this does not mean that Holiday Inn Express did not undertake to do so anyway, by its own affirmative conduct. That R.M.H. was intended to be under the care of his friend’s mother does not mean he could not also be under the care of Holiday Inn Express — the two concepts need not be mutually exclusive.

Simply put, we believe these facts reflect precisely the sort of scenario contemplated by the parties to be excluded from coverage when they agreed to the insurance contract. In fact, if these facts did not reflect the contemplated exclusion, we would struggle to imagine what reasonably could and still remain within the confines of an ordinary motel business.

Finally, we note that we do not need to provide discrete analysis on this issue for Holiday Hospitality, despite the policy’s Separation of Insureds clause. That provision provides that the policy applies “a. As if each Named Insured were the only Named Insured; and b. Separately to each insured against whom claim is made or ‘suit’ is brought.” (App. at 146.)

However, the policy only lists one “Named Insured” — Holiday Inn Express. (App. at 78.) Holiday Hospitality is instead classified as an “Automatic Additional Insured,” and afforded coverage by virtue of being a “Grantor of Franchise or License.” (App. at 142.) Accordingly, subsection (a) of the Separation of Insured provision has no impact on this analysis. Likewise, applying this abuse/molestation exclusion “separately to each insured” does not change the analysis. The exclusion bars coverage for abuse or molestation of someone “while in the care, custody or control of any insured,” or for the negligent hiring or retention “of a person for whom any insured is or ever was legally responsible” and who commits abuse or molest. (App. at 138-34, 137 (emphasis added).) The use of the word “any” in this provision means the fact that R.M.H. was in the care of Holiday Inn Express, and that Holiday Inn Express employed For-shey, bars coverage as conclusively for Holiday Hospitality and Megha as it does for Holiday Inn Express.

Conclusion

We therefore affirm the trial court’s grant of summary judgment.

MASSA and RUSH, JJ., concur.

DICKSON, C.J., concurs with separate opinion.

RUCKER, J., dissents with separate opinion.

DICKSON, C.J.,

concurring.

I write separately because I believe that the proper understanding of “care” is determined by well-established Indiana law that a hotel guest is considered a business invitee and is entitled a duty of reasonable care. Ellis v. Luxbury Hotels, Inc., 716 N.E.2d 359, 360 (Ind.1999). Here, the exclusion is phrased in the disjunctive, and excludes coverage when the victim is in the “care, custody, or control” of any insured. I agree with Justice Rucker’s dissent with respect to the question of fact as to “custody” and “control.” But in this case, “care” exists as a matter of law. As such, the exclusion applies, and the summary judgment for the insurer was correct.

RUCKER, J.,

dissenting.

The Court of Appeals concluded there is a genuine issue of material fact as to whether R.M.H. was “in the care, custody or control” of Holiday Inn Express. Holiday Hospitality Franchising, Inc. v. Amco Ins. Co., 955 N.E.2d 827, 836 (Ind.Ct.App.2011). At least with respect to “care” and “control” I agree with the court’s conclusion and would thus deny summary judgment in favor of AMCO on this issue. Therefore I respectfully dissent.

I agree with the majority that R.M.H. was not in the “custody” of Holiday Inn Express. And I also agree that “to some extent” R.M.H. was under Holiday Inn Express’ “control.” Op. at 580. But this very qualifier also implies the opposite: “to some extent” R.M.H. was not under the motel’s control. It is thus left to the trier of fact to resolve these competing inferences. This leaves us with deciding whether R.M.H. was in the “care” of Holiday Inn Express.

Relying on its plain and ordinary meaning the majority defines “care” in part as “[t]he function of watching, guarding, or overseeing.” Op. at 579 (quoting Webster’s II New College Dictionary 168 (1995)). But there is nothing in the record before us or in the case authority cited by the parties supporting the notion that as a matter of law a motel is obligated or otherwise required to engage in any of the foregoing functions. And at the very least the facts are in dispute concerning whether in this case Holiday Inn Express actually engaged in “watching, guarding, or overseeing” R.M.H. Although not addressing this precise point, in support of its motion for summary judgment AMCO submitted the motel’s response to AMCO’s requests for admissions. In relevant part Holiday Inn Express admitted that it “rented two (2) rooms to Amy McGinnis who was staying at the hotel with her sons, both minors. R.M.H. was invited by Amy McGinnis and/or one of her minor sons to stay at the Holiday Inn with them.” App. at 176. Generously interpreted this admission could imply that the hotel was perhaps somehow “guarding” or “overseeing” R.M.H. and thus in the hotel’s care. On the other hand, in response to AMCO’s motion for summary judgment Holiday Inn Express included the affidavit of R.M.H.’s mother, S.H., who declared in relevant part that when she gave her son permission to spend the night at Holiday Inn Express, “she intended and expected that he would be in the care and control of Amy McGinnis during the time that he was at the hotel.” App. at 181-82 (citing Affidavit of S.H. para. 5); and that “[a]t no time prior to May 17, 2007, did S.H. speak to or otherwise communicate with any employee or agent of the Holiday Inn Express to request that any hotel employee provide care for R.M.H. while he was at the hotel.” App. at 182 (citing Affidavit of S.H. para. 6). Although not dispositive of whether the hotel in fact undertook the care of R.M.H., S.H.’s affidavit at least shows that his mother never contemplated as much.

At most there was no evidence presented to the trial court either way on the question of whether Holiday Inn Express engaged in “[t]he function of watching, guarding, or overseeing” R.M.H. At the very least the facts that were presented to the trial court on the question suggest competing inferences. In either event Holiday Inn Express is not entitled to summary judgment on this issue. I would reverse and remand for further proceedings.

      . Forshey was later convicted of felony child molestation.

      . "Bodily injury” is defined by the policy as "bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.” (App. at 147.) "Personal and advertising injury” is defined as "injury, including consequential ‘bodily injury’, arising out of ... [fjalse arrest, detention or imprisonment.” (App. at 149.)

      .In this underlying complaint, Forshey was found to have been acting outside the course and scope of his employment when he molested R.M.H. As a result, the trial court granted summary judgment for the collective defendants as to the issue of vicarious liability.

      . AMCO, Holiday Inn Express, and Megha all sought transfer.

      . We also do not need to address the petition of S.H., Holiday Inn Express, and Megha, challenging the Court of Appeals's opinion on rehearing.

      . The “care, custody or control” clause arises more frequently in the context of property damage exclusions in construction or manufacturing contractor insurance policies. See Bentley, 170 Ind.App. at 328, 352 N.E.2d at 864. In that context, to determine whether the clause is satisfied, courts tend to look at "(1) whether the property is personalty or realty; (2) the location, size, and other characteristics of the property; and (3) the insured’s relationship to the property, including the insured's duties with respect to the property, the nature and extent of the insured's control over the property, and any interest the insured may have in the property.” 43 Am. Jur.2d Insurance § 695.

      . We also note that the insurance policy required Holiday Inn Express to maintain a number of “Protective Safeguards,” such as sprinkler systems, fire alarms, burglar alarms, and watchman services. Though these safeguards were required under the policy in exchange for reduced premiums only on Holiday Inn Express’s property damage coverage, it is axiomatic that they also provide a needed safety benefit to the motel’s guests, just like a building code or fire code. See, e.g., Noble v. Alis, 474 N.E.2d 109, 111 (Ind.Ct.App. 1985) (purpose of city housing code to "protect the public health, safety, and welfare”).

      . "[A] hotel guest is at least the equivalent of a business invitee and, as such, is entitled to a duty of reasonable care for the guest’s safety.” Ellis v. Luxbury Hotels. Inc., 716 N.E.2d 359, 360 (Ind.1999). This duty of care does not make the hotel a guarantor of its guests’ safety, see Booher v. Sheeram, LLC, 937 N.E.2d 392, 395 (Ind.Ct.App.2010), trans. denied, and Holiday Hospitality is correct that in Ellis we were unable to determine, based on the evidence designated for summary judgment, whether a particular criminal act was sufficiently foreseeable so as to fall within the scope of this duty of care. However, that does not mean the hotel in Ellis did not owe any duty of care whatsoever.
      Holiday Inn Express and Megha believe analogizing "duty of care” and "care” to be "nonsensical,” and that duty of care is "wholly separate and distinct from the issue of whether R.M.H. was in the 'care, custody or control’ of Holiday Inn for purposes of the exclusionary language at issue here.” (Interested Parties' Reply Br. at 6.) Carrying this argument "to its logical conclusion” they say, "would result in every hotel guest being in the 'care' of the hotel during their stay. This is hardly the case ... it is likely that most ‘reasonable persons’ would agree that they are not in the ‘care’ of a hotel during their hotel stay.” (Interested Parties’ Reply Br. at 5-6.)
      But we think the line between the two concepts is not as bright and distinct as Holiday Inn Express and Megha claim. Though we agree that the analogy is not directly on point, it remains informative based on the definitions of "care,” "custody,” and "control” above.

      . This is not a bright-line declaration that any guest of any motel is ipso facto "in the care of” that motel and we recognize that the facts of this case are not the same as those from other jurisdictions applying this type of exclusion. See, e.g., Sarah G. v. Me. Bonding & Cas. Co., 866 A.2d 835 (Me.2005) (hotel owner took nude photographs of minor child staying at hotel alone); Cmty. Action for Greater Middlesex Cnty., Inc. v. Am. Alliance Ins. Co., 254 Conn. 387, 757 A.2d 1074 (2000) (child sexually abused by other children while attending preschool program); Doe v. Lenarz, 2007 WL 969610 (Conn.Super.Ct.2007) (minor child molested by instructor at karate studio when enrolled in karate classes); 12th St. Gym. Inc. v. Phila. Indem. Ins. Co., 2006 WL 1652690 (Pa.Com.Pl.2006) (gym member sexually assaulted by massage therapist in small, closed massage room). But that does not mean the facts here are insufficient.

      . It would be a different circumstance if the provision applied to "the” insured. That language is used, for example, in the "Expected or Intended Injury” exclusion, barring coverage for bodily injury "which is expected or intended by the insured,” (App. at 129 (emphasis added)), the "Contractual Liability” exclusion, barring coverage for bodily injury "for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement,” (App. at 129 (emphasis added)), and in the provision excluding personal and advertising liability "[cjaused by or at the direction of the insured," (App. at 136 (emphasis added).) A number of other exclusions, however, use the word “any” just like the one at issue in this case, and we must assume the distinction was both intended and intended to make a difference.

      . I agree with the Court of Appeals that an "occurrence” took place for the purpose of the insured's insurance policy. See Holiday Hospitality, 955 N.E.2d at 832. And therefore I would summarily affirm this portion of the Court of Appeals' opinion.


source: Caselaw Access Project

author: RUSH, Justice.

license: Public Domain

text:
    In re VISITATION OF M.L.B. K.J.R., Appellant (Respondent below), v. M.A.B., Appellee (Petitioner below).
    No. 41S01-1209-MI-00556.
    Supreme Court of Indiana.
    March 7, 2013.

      R. Lee Money, Greenwood, IN, Attorney for Appellant.
    Russell T. Clarke, Jr., Linda Meier, Indianapolis, IN, Attorneys for Appellee.
   RUSH, Justice.

A child’s relationship with his grandparents is important, and can deserve protection under the Grandparent Visitation Act. But grandparent-visitation orders necessarily impinge, to some degree, on a parent’s constitutionally protected rights. An order granting grandparent visitation must therefore include findings that address four well-settled factors for balancing parents’ rights and the child’s best interests, and must limit the visitation award to an amount that does not substantially infringe on parents’ rights to control the upbringing of their children.

In this case, the trial court’s grandparent-visitation order failed to meet either requirement. To provide the trial court with an opportunity to cure those defects, we remand for new findings and conclusions consistent with this opinion.

Facts and Procedural History

M.L.B. was born in 2004 to K.J.R. (“Mother”) and M.D.B. (“Father”). The parties were never married, and their relationship ended a few months after M.L.B.’s birth. At times, Mother has had a restraining order against Father. And even though paternity and support were established in 2008, Father did not pursue parenting time, and he has had essentially no contact with M.L.B. since 2007.

The same is not true, though, for Father’s extended family. The paternal grandfather, M.A.B. (“Grandfather”), visited newborn M.L.B. at the hospital and saw him two or three times a month through his infancy. M.L.B. calls Grandfather and his wife “Papaw” and “Grandma,” and Mother generally allowed M.L.B. to have frequent contact with them and to attend extended-family functions, typically for a few hours in the afternoon, even after she married P.R. (“Stepfather”) in 2006. Beginning in 2007, though, Mother required that Father not be present as a condition of the visits.

This voluntary arrangement continued uneventfully through Christmas 2009. But in early 2010, after Stepfather initiated a step-parent adoption of M.L.B., Mother curtailed the grandparent visits. Ultimately, Father contested the adoption, and Grandfather intervened in the proceedings to petition for a grandparent visitation order.

At a consolidated hearing on both the visitation and adoption petitions, Mother testified that M.L.B. gets along well with Grandfather and the extended paternal family, and that she had no objection to allowing continued visitation between M.L.B. and Grandfather. The trial court entered an order granting Grandfather visitation one weekend per month from Friday evening to Sunday evening; a “summer family vacation of up to ten (10) days duration” in lieu of that month’s regular weekend; ten-hour visits for Easter, Thanksgiving, and Christmas; and a ten-hour visit within a week of M.L.B.’s birthday. The order also imposed no restrictions on the biological father’s contact with M.L.B. — even though his parental rights were terminated the next day by a separate order granting the Stepfather’s adoption petition (which Father unsuccessfully appealed, see In re Adoption of M.L.B., No. 41A05-1107-AD-363, 2012 WL 2152816 (Ind.Ct.App. June 14, 2012)). Because the visitation order had been issued first, it survived termination of the Father’s rights under Indiana Code section 31-17-5-9.

Mother appealed the visitation order, arguing that it violated her fundamental parental rights. A divided panel of the Court of Appeals affirmed, and we granted transfer.

Standard of Review

Because the Grandparent Visitation Act requires specific findings of fact and conclusions of law, Ind.Code § 31-17-5-6, we apply the two-tiered Indiana Trial Rule 52 standard of review, Megyese v. Woods, 808 N.E.2d 1208, 1213 (Ind.Ct.App.2004). We first determine whether the evidence supports the findings, and then whether the findings support the judgment, In re K.I., 903 N.E.2d 453, 457 (Ind.2009). We set aside findings of fact only if they are “clearly erroneous,” deferring to the trial court’s superior opportunity “to judge the credibility of the witnesses.” K.I., 903 N.E.2d at 457, quoting T.R. 52(A). In turn, “[a] judgment is clearly erroneous when ... the findings fail to support the judgment,” or “when the trial court applies the wrong legal standard to properly found facts.” K.I., 903 N.E.2d at 457, citing Fraley v. Minger, 829 N.E.2d 476, 482 (Ind.2005).

Discussion

I. Grandparent Visitation Generally.

Historically, grandparents had no special common-law right to have visitation with a grandchild. To the extent they could seek court-ordered visitation, it was under the same standard applicable to any unrelated third party: by showing that they had “acted in a custodial and parental capacity,” so that the child would be harmed by loss of that relationship. See, e.g., Collins v. Gilbreath, 403 N.E.2d 921, 923-24 (Ind.Ct.App.1980) (affirming visitation award to a step-father on that basis). Even under that narrow standard, Collins cautioned that it did not “intend to open the door and permit the granting of visitation rights to ... myriad ... unrelated third persons, including grandparents, who happen to feel affection for a child,” believing that such a new policy should be adopted “in a legislative, not judicial, forum.” Id. at 923-24 & n. 1.

Not until 1981 did an Indiana court recognize any limited right to grandparent visitation. See Krieg v. Glassbum, 419 N.E.2d 1015, 1018-19 (Ind.Ct.App.1981) (construing Indiana Trial Rule 24(A)(2) to allow grandparents to intervene of right in post-dissolution custody and stepparent adoption proceedings and petition for visitation). The very next year, the Legislature superseded Krieg by passing Indiana’s first Grandparent’s Visitation Statute. Ind.Code § 31-1-11.7-1 to 8 (1982). The statute then became the exclusive basis for a grandparent to seek visitation, and was available only if (1) the child’s father or mother was deceased or (2) the child’s parents had divorced. In re Visitation of J.O., 441 N.E.2d 991, 995 (Ind.Ct.App.1982). Apart from a 1989 amendment expanding the statute to include grandparents of children born out of wedlock, the substance of the statute has remained largely unchanged, even through its 1997 recodification to its current location at Indiana Code 31-17-5.

In the same time frame, many other states also created statutory grandparent-visitation rights, affording varying degrees of deference to natural parents’ decisions about grandparent involvement. Ultimately, in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the Supreme Court of the United States addressed the tension between those emerging rights and the fundamental right of fit parents to direct them children’s upbringing. Troxel acknowledged that because “grandparents and other relatives undertake duties of a parental nature in many households,” children’s relationships with grandparents may deserve protection. 530 U.S. at 64, 120 S.Ct. 2054. Nevertheless, Troxel broadly agreed that natural parents have a fundamental constitutional right to direct their children’s upbringing without undue governmental interference, and that a child’s best interests do not necessarily override that parental right.

In striking a balance between parental rights and children’s interests, the Troxel plurality discussed several key principles, see 530 U.S. at 69-71, 120 S.Ct. 2054, which our Court of Appeals soon distilled into four factors that a grandparent-visitation order “should address”:

(1) a presumption that a fit parent’s decision about grandparent visitation is in the child’s best interests (thus placing the burden of proof on the petitioning grandparents);

(2) the “special weight” that must therefore be given to a fit parent’s decision regarding nonparental visitation (thus establishing a heightened standard of proof by which a grandparent must rebut the presumption);

(3) “some weight” given to whether a parent has agreed to some visitation or denied it entirely (since a denial means the very existence of a child-grandparent relationship is at stake, while the question otherwise is merely how much visitation is appropriate); and

(4)whether the petitioning grandparent has established that visitation is in the child’s best interests.

McCune v. Frey, 783 N.E.2d 752, 757-59 (Ind.Ct.App.2003), citing Crafton v. Gibson, 752 N.E.2d 78, 96-98 (Ind.Ct.App.2001). Subsequent Court of Appeals decisions followed suit. E.g., In re Guardianship of J.E.M., 870 N.E.2d 517, 520 (Ind.Ct.App.2007), and In re Paternity of P.E.M., 818 N.E.2d 32, 37 (Ind.Ct.App.2004).

Then in K.I., this Court approved of the four McCune factors, and took the additional step of declaring that a grandparent-visitation order “must address” those factors in its findings and conclusions. 903 N.E.2d at 462 (emphasis added). In connection with that requirement, we further explained that the “Grandparent Visitation Act contemplates only occasional, temporary visitation that does not substantially infringe on a parent’s fundamental right to control the upbringing, education, and religious training of their children.” Id. (internal quotations and citations omitted).

II. Necessity of Troxel Findings.

Applying those principles to this case reveals that the trial court’s findings, though proper so far as they go, are incomplete. As discussed above, trial courts must consider all four Troxel principles, as distilled by McCune and made mandatory by K.I. All three members of the Court of Appeals panel recognized that necessity and acknowledged the trial court had made no express findings on at least two of those factors. But the majority believed the findings sufficiently addressed those factors by implication, so that the omission was one of form, not substance. The dissent, by contrast, saw no consideration of the first two factors even implicitly and thus found the order constitutionally defective. We agree with the dissent and find that the trial court’s order was not constitutionally permissible.

The first three required factors implement the constitutionally protected right of fit parents to make child rearing decisions, and reflect the significant burden of proof grandparents must carry to override those decisions. Here, though, the order is insufficient as to all three. As to the first two factors, none of the trial court’s findings give any indication that it recognized the “presumption that a fit parent acts in his or her child’s best interests,” or gave “special weight ... to a fit parent’s decision to deny or limit visitation.” K.I, 903 N.E.2d at 462. Both factors are key to a constitutionally appropriate balance between a natural parent’s fundamental rights and a child’s best interests — and without findings reflecting that balance, a grandparent-visitation order is not constitutionally permissible. We agree with Judge Barnes’ dissent that the absence of those findings here is not simply an issue of “form over substance.” Those omissions, standing alone, would render this order unconstitutional.

But in light of the extensive amount of visitation awarded, we also find it necessary to address the third factor: “whether the parent has denied visitation or has simply limited visitation.” K.I, 903 N.E.2d at 462. Again, this factor defines what interest of the child’s is at stake. If visitation has been denied unreasonably, then the stakes are whether the child will have any relationship with the grandparents, McCune, 783 N.E.2d at 759, which may strengthen the case for judicial intervention. But when a parent has already offered visitation voluntarily, albeit within reasonable limits, it is not the existence of a relationship at stake, but only on whose terms it will be. Id. In that event, a grandparent-visitation order particularly implicates the danger of “infring[ing] on the fundamental right of parents to make child rearing decisions simply because [a court] believes a ‘better’ decision could be made.” Troxel, 530 U.S. at 72-73, 120 S.Ct. 2054 (plurality opinion).

Here, the trial court found a “denial” of visitation in the months leading up to the trial, concluding that Mother curtailed visitation after the adoption was filed in an effort “to end the relationship” between M.L.B. and Grandfather. But it is also undisputed that, for several years leading up to that denial, Mother had merely limited the amount of visitation — consenting to regular, meaningful visitation between M.L.B. and Grandfather, but rarely if ever overnight, and never for any extended trips out of state. While Mother’s recent denial of visitation is certainly relevant under Troxel, so is the parties’ earlier pattern, because it suggests an amount of visitation that might be awarded without unduly interfering in Mother’s fundamental right to direct M.L.B.’s upbringing.

Though the trial court was within its discretion to order some degree of visitation to ensure that M.L.B.’s relationship with Grandfather would continue, the amount of visitation awarded far exceeds the parties’ earlier pattern. It even exceeds what Grandfather requested in this action, providing instead for two overnights per month, an annual 10-day trip out of state, and other visitation — which is nearly identical to the order Troxel overturned. 530 U.S. at 71, 120 S.Ct. 2054. Also, the order gives no consideration to Mother’s previously-imposed “limit” that Father not be present during grandparent visits — a condition that seems particularly important now that Stepfather’s adoption of M.L.B. is complete, so that his rights as a legal parent must also be protected. Ordering such extensive visitation, without the required findings to indicate why Mother’s prior limitations on duration and Father’s presence were unreasonable, or how the sudden increase in visitation would affect M.L.B., risks exactly what Troxel forbids: “infring[ing] on the fundamental right of parents to make child rearing decisions” by substituting a court’s own judgment of what would be “a ‘better’ decision.” Id. at 72-73, 120 S.Ct. 2054.

We end our analysis with the fourth factor: the child’s best interests. In this regard, the trial court’s findings are amply supported by the evidence. The court found that M.L.B. barely knows his largely absent biological father, but has had a good and consistent relationship with Grandfather and the paternal extended family for his entire lifetime, and he often sees them two to four times per month and for major holidays. The court further found that M.L.B. calls Grandfather “Grandpa,” and Grandfather’s wife “Grandma,” and has a loving, positive relationship with them. Those findings support the conclusion that “[i]t is in [M.L.B .’s] best interests to continue to have regular and meaningful contact with [Grandfather].” The best-interests factor is satisfied here.

As we observed in K.I., “although the amount of visitation is left to the sound discretion of the trial court, the Grandparent Visitation Act contemplates only occasional, temporary visitation that does not substantially infringe on a parent’s fundamental right to control the upbringing, education, and religious training of their children.” 903 N.E.2d at 462 (internal citations, quotations, and substitutions omitted). Accordingly, despite the trial court’s ample “best interests” findings, the lack of findings on the other three factors, both standing alone and as compounded by the extensive visitation awarded without those necessary findings, violates Mother’s fundamental right to direct M.L.B.’s upbringing.

III. Remedy on Remand.

Having determined that the trial court’s order is defective, we must now determine the appropriate remedy. K.I., for example, resulted in remand “with instructions to enter appropriate findings and conclusions consistent with this opinion and the Grandparent Visitation Act.” 903 N.E.2d at 462-63. Several Court of Appeals decisions, including McCune, have also concluded that the remedy is a remand for new findings and conclusions based upon the existing record. E.g., In re Guardianship of A.L.C., 902 N.E.2d 343, 359-60 (Ind.Ct.App.2009) (remanding for “more specific findings and conclusions,” but “without a hearing”); 870 N.E.2d at 522 (remanding “for further consideration ... in light of’ McCune); Ramsey v. Ramsey, 863 N.E.2d 1232, 1240 (Ind.Ct.App.2007) (remanding for more specific findings and conclusions “in accordance with McCune ”); McCune, 783 N.E.2d at 759-60 (“we remand this case to the trial court for proceedings consistent with this opinion”).

We agree that the same remedy is appropriate in this case. Even though the trial court’s findings are insufficient, that does not render its order void — that is, “of no effect whatsoever, ... incapable of confirmation or ratification.” P.E.M., 818 N.E.2d at 36-37. Rather, “[w]hen a trial court fails to issue specific findings in accordance with McCune, the order is voidable, and the remedy on appeal is a remand to the trial court instructing it to enter a proper order containing the required findings.” A.L.C., 902 N.E.2d at 359 (emphasis added). We therefore remand to the trial court for entry of new findings and conclusions revealing its consideration of all four McCune/K.1. factors, without a new hearing.

In ordering new findings on the old evidence, it is not our goal to impose a rigid formalism, under which any order that recites enough of Troxel’s “magic words” will be affirmed. Obviously, it will not be enough to merely recite those factors, unless there is also analysis of how the evidence as weighed by the trial court fits within that framework. Conversely, we also do not decide the extent to which a trial court’s findings that do not mention these factors by name might nevertheless sufficiently address them in substance. For today, it is enough to observe that this particular order wholly fails to address the first two factors, and is unclear at best as to its assessment of the third; and that each of those defects is of constitutional dimension. Accordingly, this order is voidable and requires remand to correct those defects through new findings and conclusions.

Conclusion

We remand this case to the trial court for new findings and conclusions as required by McCune and K.I., without hearing new evidence.

DICKSON, C.J., and RUCKER, DAVID, and MASSA, JJ., concur.


author: NAJAM, Judge.

text:
    John PICHON, Jr., Appellant-Defendant, v. AMERICAN HERITAGE BANCO, INC., et al., Appellees-Plaintiffs.
    No. 76A03-1201-PL-4.
    Court of Appeals of Indiana.
    Jan. 15, 2013.
    Rehearing Denied March 21, 2013.

      Debra H. Miller, James R. Fisher, Miller & Fisher, LLC, Indianapolis, IN, Attorneys for Appellant.
    Martin T. Fletcher, Daniel G. McNamara, David E. Bailey, Eilbacher Fletcher, LLP, Fort Wayne, IN, Attorneys, for Ap-pellees.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

John Pichón, Jr. appeals the trial court’s judgment in favor of American Heritage Banco, Inc. (“AHB”) in the amount of $1,189,105.13 plus interest. AHB had filed a complaint alleging that Pichón and others had conspired with the officers of First National Bank of Fremont (“FNBF”) to commit criminal acts and seeking payment on two promissory notes executed by Pichón. Pichón filed a counterclaim against AHB, the successor to FNBF, alleging fraud and conversion. Following a bench trial, the trial court entered judgment in favor of Pichón on his counterclaim for conversion and on AHB’s claim regarding the $737,000 promissory note (“the $737K note”). And the trial court entered judgment in favor of AHB on the $650,000 promissory note (“the $650K note”). After initially calculating a set-off in favor of Pichón, the trial court granted AHB’s motion to correct error and ordered that Pichón owes AHB $1,189,105.13 plus interest. Pichón appeals and raises the following restated issues for our review:

1.Whether the trial court abused its discretion when it excluded from evidence an exhibit purporting to show that the $650K note had been paid.
2. Whether AHB had standing to enforce the $650K note.
3. Whether the promissory notes are unenforceable because they are illegal.
4. Whether the promissory notes were discharged under accord and satisfaction.
5. Whether the trial court erred when it found that Pichón had waived the issue of lack of consideration for the $650K note.
6. Whether the trial court erred when it found for AHB on Pichon’s counterclaims of fraud and conversion.
7. Whether the trial court erred when it ordered Pichón to pay prejudgment interest on the award.
8. Whether the trial court abused its discretion when it ordered Pichón to pay $150,000 in attorney’s fees to AHB.
9. Whether Pichón is entitled to a set-off.

We affirm in part, reverse in part, and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

On December 28, 2000, Pichón executed a promissory note to borrow $737,000 from FNBF in order to buy Growth Parkway Property (“GPP”) from MacNeachdainn Corporation, which was owned and controlled by George McNaughton (“George”). George’s brother Earl McNaughton (“Earl”) was the president, chairman of the board of directors, and chief executive officer of FNBF. FNBF was a wholly owned subsidiary of AHB from 1995 to 2005. Earl is the majority shareholder in AHB, a closely held corporation. The $737K note had a term of one year and was secured by a mortgage on the GPP.

In November 2002, Earl asked Thomas Christlieb, Pichon’s loan officer at FNBF, to ask Pichón to borrow $650,000 from FNBF and to allow the proceeds to be disbursed to Earl. Pichón agreed and, on November 15, 2002, Pichón executed a promissory note to borrow $650,000 from FNBF. That loan was unsecured, and the money was disbursed to Earl with Pichon’s knowledge.

In December 2002, Pichón sold GPP for $729,000, and FNBF received the proceeds from that sale. Christlieb then executed a mortgage release indicating that the $737K note had been satisfied. However, FNBF’s computer records continued to show an unpaid balance on the $737K note. In 2003, Earl paid funds to FNBF which were credited towards the alleged balance of the $737K note, reducing that balance to $575,000. And in December 2004, Pichón signed an auditor’s letter acknowledging that the unpaid balance of the $737K note was $575,000. Thereafter, no further principal payments were made on the $737K note, and on January 6, 2004, the loan record showed a zero balance. However, in 2005, FNBF’s computer records were adjusted to show an unpaid balance of $575,000. On the same date in December 2002 that FNBF received the proceeds for the sale of GPP, credit was given on FNBF’s computer record showing that the $650K note was fully paid.

On March 27, 2006, AHB filed a complaint against Pichón and several other defendants, and on October 16, 2006, AHB filed its second amended complaint alleging in relevant part that Pichón had conspired with officers of FNBF to commit criminal acts. And on June 1, 2010, AHB filed a third amended complaint adding in relevant part allegations of non-payment by Pichón on the $737K note and the $650K note. AHB had acquired FNBF following a merger. The two notes were payable to FNBF and its successors and assigns. Pichón filed a counterclaim alleging fraud and conversion. In particular, Pichón alleged that AHB was not the real party in interest; that Pichon’s signature on the $650K note was a forgery; and that the $737K note had been satisfied following the sale of the GPP.

The trial court entered a final pretrial order (“PTO”) on February 1, 2011. A section of the PTO entitled “Issues for Trial: On Claims of AH[B] against Pi-chon” stated as follows:

1. Whether Pichón signed the Promissory Note of November 2002 (the “650K Note”).
2. Whether AH[B] has “standing” to enforce the 650K note against Pi-chon.
3. Whether there is an unpaid balance owing to AH[B] on the 650K Note and, if so, the amount thereof.
4. Whether AH[B] is entitled to recovery of reasonable attorney fees on the 650K Note and, if so, the amount thereof.
5. Whether there is an unpaid balance owed by Pichón on the December 2000 Promissory Note (the “737K Note”).
6. Whether the proceeds arising from Pichon’s sale of the [GPP] should have been applied to pay the balance owing on the 737K Note at the time of such sale.
7. Whether the proceeds arising from Pichon’s sale of the [GPP] were wrongly or incorrectly credited as paying or paying down the 650K Note.
8. Whether Pichón made any payment on the 650K Note except for funds arising from his sale of the [GPP].
9. Whether AH[B] is entitled to reasonable attorney fees if it recovers [on] its claim based on the 737K Note and, if so, the amount of such fees.
10. Whether, by entering into the 650K Note, Pichón was a knowing participant in a scheme through which funds were obtained from [FNBF] by or in violation of I.C. 35-43.
11. Whether [FNBF] suffered pecuniary loss for purposes of I.C. [§ ] 34-23-3-1 as a result of a violation of I.C. 35-43.
12. Whether AH[B] is entitled to an award of treble damages and attorney’s fees against Pichón under I.C. [§ ] 34-24-3-1 and, if so, the amounts thereof.

Appellant’s App. at 44-45. With respect to contentions to be asserted at trial by Pichón, the PTO stated that Pichón incorporated his “Answers, Affirmative Defenses and Counterclaims as his contentions.” Id. at 49.

During the two-day bench trial, Pichón sought to introduce into evidence an original of the $650K note stamped “paid” which had been included as Plaintiffs Exhibit 33 in AHB’s exhibit book prior to trial. Transcript at 121. AHB objected on the grounds that Pichón had not asserted the affirmative defense of payment under Trial Rule 8(C). Pichón argued that the exhibit was admissible because it was included in AHB’s own exhibit book and, more importantly, because it was relevant to AHB’s own stated issue in the PTO of “[w]hether there is an unpaid balance owing to AH[B] on the 650K Note and, if so, the amount thereof.” Appellant’s App. at 44. AHB maintained that it was too late for Pichón to amend his contentions as listed in the PTO, and the trial court agreed. The trial court ruled that it would allow the evidence, but it reserved the issue of the exhibit’s admissibility for a later determination. After trial, the trial court ruled that the proffered exhibit, now labeled Defendant’s Exhibit A, was excluded from the evidence because Pichón had not asserted the affirmative defense of payment in his answer and had not asserted the issue in the PTO.

Following the conclusion of the trial, the trial court entered findings and conclusions as follows:

A. Findings of Fact—
1. On December 28, 2000, Pichón borrowed $737,000.00 from the First National Bank of Fremont (“FNBF”), to purchase a parcel of commercial real estate (“Growth Parkway Property”) located in Steuben County, Indiana.
2. Pichón executed a Promissory Note for $737,000.00 (“737K Note”) and Mortgage to serve as collateral for the loan.
3. Pichón, thereafter, entered into a Lease/Purchase Agreement with Vernous Conduit Corporation.
4. The Growth Parkway Property was leased to the Vernous Conduit Corporation for $18,425.00 per quarter.
5. The lease payments were to be applied by FNBF to pay down the 737K Note.
6. Thereafter, the Growth Parkway Property was sold. Closing occurred on December 23, 2002.
7. The sale price for the Growth Parkway Property was $729,000.00.
8. No part of the sale proceeds were applied to the 737K Note, or distributed to Pichón.
9. Rather, the $729,000.00 sale proceeds were utilized in part to pay down an unrelated Note that Pi-chon had with FNBF, with the remainder being paid to George T. McNaughton.
10. At some point prior to November 22, 2002, Earl F. McNaughton (“McNaughton”) approached Tom Christlieb (“Christlieb”) about a problem he was having. The problem revolved around McNaughton’s need for $650,000.00. McNaughton was aware of Christlieb’s longstanding relationship as a bank customer with Pichón. McNaughton requested that Christlieb communicate with Pichón and see if he would be willing to borrow from FNBF the sum of $650,000.00 which would in some manner then be diverted from FNBF to McNaughton.
11. Christlieb did so, and Pichón executed an unsecured Promissory Note in the sum of $650,000.00.
12. Pichón received no consideration from his executing the $650,000.00 Promissory Note (“650K Note”) at the request of Christlieb.
13. The 650K Note is the Promissory Note the Court made reference to above at Finding of Fact # 9 that was credited by FNBF with being fully paid upon the Growth Parkway Property being sold.
14. Pichón was unaware this was occurring.
15. On December 23, 2002, the 737K Note had an unpaid balance in the amount of $575,000.00.
16. On August 25, 2011, this Court entered its ruling on a reserved evi-dentiary issue. The Court determined that Pichón would not be permitted to show that any part of the 650K Note had been paid owing to the fact that the affirmative defense of payment had not been put forth by Pichón in the Pre-Trial Order as a contested issue.
17. Additional facts will be set forth hereinafter as deemed necessary by the Court.
B. Affirmative Defenses—
18. Pichón contends that his signature on the 650K Note was a forgery. Pichón did not testify at trial.
19. The Court concludes that the overwhelming weight of the evidence shows that Pichon’s signature on the 650K Note was genuine.
20. Pichón contends that FNBF committed actual or constructive fraud when he was induced to sign the 650K Note. The Court concludes that FNBF did not commit actual fraud because Pichón was well aware of the fact that these monies were in some manner going to be used personally by McNaughton, and he would be receiving no consideration for his executing the 650K Note. The Court concludes that FNBF did not commit constructive fraud. No fiduciary or other special relationship existed between FNBF and Pichón. Their relationship consisted solely of lender and borrower.
21. Pichón contends that AH[B] lacks standing to enforce his obligation under the 650K Note. The Court concludes that AH[B] occupies the status as “holder” of the 650K Note, therefore, AH[B] has standing to enforce the Note according to its terms subject to any affirmative defenses successfully put forth by Pichón.
C. Counterclaims—
22. Pichón contends that FNBF breached a fiduciary duty it owed to him by virtue of FNBF serving as his closing agent upon the sale of the Growth Parkway Property which he did not personally attend. FNBF was Pichon’s banking institution, not his closing agent.
23. Pichón contends that FNBF committed the criminal act of conversion in the manner with which it diverted monies following closing on the Growth Parkway Property causing him to suffer a pecuniary loss and, therefore, he should be entitled to treble damages pursuant to the Crime Victim’s Compensation Act found at Ind.Code [Section] 34-24-3-1.
24. Pichón argues that on December 23, 2002, he owed FNBF the sum of $1,225,000.00 ($575,000.00 + $650,000.00 = $1,225,000.00). FNBF received $729,000.00 upon Pichon’s sale of the Growth Parkway Property leaving a balance owed by Pichón to FNBF on the $737K Note and 650K Note of $496,000.00 ($1,225,000.00 $729,000.00 = $496,000.00).
25. Pichón argues that the sum of $154,000.00 ($650,000 - $496,000 = $154,000.00) should serve as a set off against the amount the Court finds owing to AH[B] on the 650K Note.
26. Ind.Code 34-24-3-1 provides, in relevant part, as follows:
“If a person suffers a pecuniary loss as a result of a violation of IC 35-43, IC [§ ] 35^2-3-3, IC [§ ] 35-42-3-4, or IC [§ ] 35-45-9, the person may bring a civil action against the person who caused the loss for the following:
(1) An amount not to exceed three (3) times the actual damages of the person suffering the loss.
(2) The costs of the action.
(3)A reasonable attorney’s fee.... ”
27. Ind.Code [§ ] 35-43-4-3 provides, in relevant part, as follows:
“(a) A person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion, a Class A misdemeanor ...”
28. Criminal conversion is a compensa-ble offense for which treble damages may be awarded under Ind. Code [§ ] 34-24-3-1.
29. The evidence before the Court reveals that upon closing the sale of the Growth Parkway Property the proceeds were not simply credited by FNBF to pay off the $575,000.00 unpaid balance owed it on the 737K Note, with the $154,000.00 excess being remitted to Pichón. This was not done by FNBF acting through McNaughton and other inside agents of FNBF. Rather, the $154,000.00 was knowingly used by FNBF, through its agents, in a manner not authorized by Pichón, but, in a manner designed to personally benefit McNaughton.
30. The Court concludes that FNBF did engage in an act of criminal conversion. Pichón, therefore, is entitled to damages pursuant to Ind.Code [§ ] 34-24-3-1 by way of set off against his debt owing to AH[B] on the $650K Note.
D. Damages—
31. The 650K Note provides for a reasonable attorney fee upon default. Counsel for AH[B] requests an award of attorney fees/costs in the amount of $150,000.00. This amount was substantiated by testimony and time statements. This case was highly complex and required years to sort out.
32. The Court concludes that $150,000.00 is a fair and reasonable fee.
33. There is no evidence before the Court regarding Pichon’s attorney fee obligation.
34. Pichón owes AH[B] $650,000.00; pre-judgment interest in the amount of $389,105.13; and, a reasonable attorney fee in the amount of $150,000.00.
35. Pichón owes AH[B] the total sum of $1,189,105.13.
36. By way of set off against the $1,189,105.13 that Pichón owes AH[B], Pichón is entitled to set off the sum of $154,000.00 x 3 or $462,000.00. Further, Pichón is entitled to set off pre-judgment interest from December 28, 2002[,] through October 1, 2011[,] calculated at the rate of eight percent (8%) per annum, or the amount of $323,729.02.
37. The Court concludes that the total amount Pichón is entitled to set off against the $1,189,105.13 amount owed to AH[B] is $785,729.02.
IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED as follows:
1.American Heritage Banco, Inc. n/k/a American Heritage Collector, Inc. shall have judgment against defendant John N. Pichón in the amount of $403,376.11.

Appellant’s App. at 25-31.

Thereafter, AHB and Pichón filed cross-motions to correct error. The trial court denied Pichon’s motion, but granted AHB’s motion as follows:

1. In its Judgment entered on October 14, 2011, the Court concluded, among other things, that:
(a) AHB was entitled to a judgment against Pichón in the amount of $1,189,105.13.
(b) That the Judgment awarded to AHB had to be reduced by $462,000.00 ($154,000.00 x 3 = $462,000.00) owing to what the Court concluded were acts of conversion committed by AHB.
(c) Pichón was entitled to recover legal interest on his monies which the Court determined to have been converted by AHB in the amount of $323,729.02.
(d) That after these deductions were properly taken into account, AHB was entitled to a net judgment against Pi-chon in the amount of $403,376.11 ($1,189,105.13 - $785,729.02 $403,376.11).
2. AHB argues that the Court committed error when it concluded that on December 23, 2002, the 737K Note had an unpaid balance of $575,000.00 (Finding 15) and, therefore, committed error in its damages calculation.
3. AHB is correct. The Court, in reflecting upon the evidence, incorrectly determined that the balance payable on the 737K Note effective December 23, 2002 was in the amount of $575,000.00 and, further, incorrectly determined that Pichón was responsible for the reduction in the balance which remained payable to AHB on the 737K Note.
4. Effective December 23, 2002, Pichón had made no payments toward principal reduction on the 737K Note. The evidence clearly reflects that the entirety of the 737K Note was payable to AHB on December 23, 2002.
5. AHB further contends that the Court committed error in finding that Pichón received no consideration from his executing the 650K Note. Although not error, the Court agrees that Finding 12 is superfluous the Court having previously determined by Order entered on February 9, 2011, that the issue of “failure of consideration” regarding Pichon’s execution of the 650K Note had been waived because not specifically pleaded as an affirmative defense pursuant to Ind. Trial Rule 8(C).
6. The Court has carefully considered each and every alleged error set forth in Pichon’s Motion to Correct Error[ ] and at this time finds said Motion should be denied.
IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED as follows:
1. American Heritage Banco, Inc. n/k/a American Heritage Collector, Inc. shall have judgment against defendant John N. Pichón, Jr. in the amount of $1,189,105.13, plus costs and legal interest accruing in accordance with law.
2. The Motion to Correct Error[ ] filed by defendant John N. Pichón, Jr., is denied.

Id. at 22-24. This appeal ensued.

DISCUSSION AND DECISION

Issue One: Exclusion of Evidence

Pichón first contends that the trial court abused its discretion when it excluded from evidence Defendant’s Exhibit A, which was included in AHB’s exhibit book as Exhibit 33 prior to trial. Exhibit A is one of three original $650K notes that Pichón executed, and it is stamped “paid.” AHB did not seek to' introduce that exhibit at trial. Instead, AHB introduced into evidence Plaintiffs Exhibit 34, which was an original of the $650K note not stamped “paid.”

We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Franciose v. Jones, 907 N.E.2d 139, 144 (Ind.Ct.App.2009), trans. denied. We will reverse a trial court’s decision to admit or exclude evidence only if that decision is clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable, and actual deductions to be drawn therefrom. Id. A trial court’s decision to admit or exclude evidence will not be reversed unless prejudicial error is clearly shown. Id.

Here, at trial, when Pichón sought to introduce into evidence an original of the $650K note stamped “paid,” AHB objected on the ground that Pichón had not asserted the affirmative defense of payment under Trial Rule 8(C). Trial Rule 8(C) provides in relevant part that a responsive pleading shall set forth affirmatively and carry the burden of proving payment. AHB also objected on the ground that Pichón had not asserted the issue of payment in its statement of issues in the PTO. AHB contended that it was too late to amend the PTO. Pichón then made two arguments in an attempt to get Exhibit A admitted at trial. First, Pichón argued that it was admissible because it had been included on the parties’ exhibit lists. Second, Pichón argued that he should be permitted to amend the PTO to reflect the issue of payment. In its order on reserved issues following trial, the trial court denied Pichon’s verbal motion to amend the PTO and excluded Exhibit A from evidence.

We conclude, however, that no amendment of the PTO was necessary because AHB’s statement of the issues for trial did not merely allege that Pichón was liable on the unpaid note in the amount of $650,000, in which case payment would be an affirmative defense. Instead, AHB framed the issue in the PTO as follows: “[w]hether there is an unpaid balance owing to AH[B] on the 650K Note and, if so, the amount thereof.” Appellant’s App. at 44 (emphasis added). Thus, Exhibit A, a signed original of the 650K note marked “paid,” squarely addresses whether an unpaid balance is owed on the note. AHB opened the door, and a typical Trial Rule 8(C) affirmative defense of payment was not required as a condition precedent to the admission of this evidence.

Moreover, and significantly, AHB included the note marked “paid” in its exhibit book prior to trial. The bank’s own records showed that the note was paid, which was evidence relevant to the issue, framed by AHB, as to whether there was an unpaid balance owed on the note. Indeed, AHB could not object or claim prejudice from the admission of an exhibit showing that the note had been paid when the exhibit came from AHB’s own exhibit book prepared for trial and was inconsistent with the unmarked note that AHB had introduced as Exhibit 34 at trial. Accordingly, we hold that the trial court abused its discretion when it excluded Exhibit A from evidence.

We further hold that the exclusion of Exhibit A from evidence is reversible error. The undisputed evidence shows that the $650K note was stamped “paid” on December 23, 2002. In addition, Christlieb, a bank officer, testified that the $650K note had a maturity date of February 13, 2003, and that the note had not been listed in FNBF’s files as delinquent. Finally, in 2005, when Pichon’s daughter, Emily, sought to transfer all of Pichon’s accounts from FNBF to a new bank, Emily obtained a printout from FNBF which showed that the $650K note had a zero balance. It was AHB’s burden to prove by a preponderance of the evidence that all or any part of the $650K note remained unpaid. Thus, Exhibit A was relevant, material, and probative on that issue.

While AHB is correct that Pichón did not present any evidence that he made payments towards the $650K note, it is undisputed that the loan proceeds were paid directly to FNBF, not Pichón, and FNBF had no expectation that Pichón would make payments on the $650K note. Pichón and FNBF conspired to execute this so-called “nominee” loan pursuant to Earl’s request to Pichón through Christ-lieb. See Appellant’s App. at 157.

Where evidence is erroneously excluded, reversal is justified only if the error relates to a material matter or is of such character as to substantially affect the rights of the parties. Manns v. State Dep’t of Highways, 541 N.E.2d 929, 936 (Ind.1989) superseded by statute on other grounds. Here, whether a balance on the $650K note existed was one of the primary allegations AHB made against Pichón. Again, one of AHB’s “Issues for Trial” in the PTO was “[w]hether there is an unpaid balance owing to AH[B] on the 650K Note and, if so, the amount thereof.” Appellant’s App. at 44. Thus, AHB had the burden of proof on that issue. But because the trial court excluded Exhibit A, Pichón was denied the opportunity to present the best evidence to rebut AHB’s evidence that there was a balance was owing on the $650K note.

We hold that the exclusion of Exhibit A substantially affected Pichon’s rights to dispute AHB’s allegation that he owed anything on the $650K note. We reverse the trial court’s judgment on the issue of the $650K note and remand for a new trial on that claim. The trial court shall admit Exhibit A into evidence during the new trial. Because the other issues Pichón raises on appeal are likely to recur on remand, we address them in turn.

Issue Two: Standing

Pichón contends that AHB lacks standing to enforce the $650K note. The trial court concluded in relevant part that AHB had standing to enforce the note because AHB “occupies the status as ‘holder’ of the 650K Note[.]” Appellant’s App. at 28. We must agree with the trial court.

Indiana Code Section 26-1-3.1-301 provides that a “person entitled to enforce instrument” means in relevant part the “holder” of the instrument. And Indiana Code Section 26-1-1-201(20) defines “holder” in relevant part as the person in possession of a negotiable instrument if the instrument is payable to an identified person if the identified person is in possession. Here, the $650K note expressly states that the note is payable to the FNBF or “its successors and assigns.” Plaintiffs Exhibit 34. And in the PTO, Pichón and AHB stipulated that FNBF was merged into AHB on November 1, 2005. Pursuant to that merger, AHB is the successor to FNBF. The trial court did not err when it concluded that AHB has standing to enforce the $650K note.

Issue Three: Illegality

Pichón contends that the trial court erred when it entered judgment in favor of AHB on the $650K note because the note was illegal. AHB maintains that Pichón has waived this issue for failure to assert it as an affirmative defense under Trial Rule 8(C). See Willis v. Westerfield, 839 N.E.2d 1179, 1185 (Ind.2006). Indeed, Pichón does not direct us to any part of the record indicating that he asserted the issue of illegality as an affirmative defense. Instead, Pichón insists that the issue need not be asserted as an affirmative defense. But in support of that contention, Pichón cites to a case that pre-dates the trial rules. Thus, the issue is waived. Regardless, Pichon’s argument in support of this issue focuses on his counterclaims against AHB for fraud and conversion, which we address below. Pichón has not demonstrated that the $650K note is unenforceable under the doctrine of illegality.

Issue Four: Accord and Satisfaction

Pichón next contends that he is entitled to judgment on both promissory notes under the doctrine of accord and satisfaction. First, because Pichón prevailed on the $737K note, we do not address this issue with respect to that note. Second, AHB maintains that Pichón has waived the issue for failure to assert it as an affirmative defense in his answer. See Trial Rule 8(C); see also Willis, 839 N.E.2d at 1185. Pichón asserts that he did raise the affirmative defense of accord and satisfaction in his answer. Our review of the record shows that Pichón only-raised that affirmative defense with respect to the $737K note. Hence, we hold that Pichón has waived the issue of accord and satisfaction for our review.

Issue Five: Consideration

Pichón next contends that the trial court erred when it concluded that he had waived the issue of consideration with respect to the $650K note. But, again, Pi-chon did not assert consideration as an affirmative defense in his answer, and the issue is waived. See Trial Rule 8(C).

Issue Six: Counterclaims

Pichón asserted two counterclaims against AHB, namely, fraud and conversion. But the only counterclaim relevant to the $650K note alleged fraud for forging Pichon’s name on the $650K note. The trial court found, and Pichón does not dispute on appeal, that the $650K note was not forged. Accordingly, there is no counterclaim to address on appeal regarding the $650K note.

Pichón also contends that AHB misappropriated the funds from the sale of GPP and that he suffered harm as a result of that alleged conversion. The trial court found that AHB committed criminal conversion when it misappropriated $154,000 following the sale of GPP. And the trial court initially awarded Pichón treble damages for that conversion. But in granting AHB’s motion to correct error, the trial court concluded that AHB had not converted any of Pichon’s money, that Pichón had not suffered any pecuniary loss, and that Pichón was not, therefore, entitled to treble damages under Indiana Code Section 34-24-3-1. On appeal, Pichón does not direct us to any part of the record showing that he suffered a pecuniary loss as a result of AHB’s conduct. The trial court did not err when it granted AHB’s motion to correct error on these issues.

Issue Seven: Prejudgment Interest

Pichón next contends that the trial court erred when it ordered him to pay $389,105.13 in prejudgment interest on the $650K note. In support of that contention, Pichón maintains that he had “tendered to FNBF full payment of all outstanding loans” in 2005. Brief of Appellant at 37. And he claims that AHB is not entitled to prejudgment interest because the “calculation of prejudgment interest [in this case] is not a simple mathematical computation[.]” Id. at 36. We address each contention in turn.

First, again, because we reverse the trial court’s judgment regarding the $650K note, whether Pichón owes anything on that note, including prejudgment interest, will be determined on remand. Second, Pichón is correct that “the crucial factor in determining whether damages in the form of prejudgment interest are allowable is whether the damages were ascertainable in accordance with fixed rules of evidence and accepted standards of valuation.” See Bopp v. Brames, 713 N.E.2d 866, 872 (Ind.Ct.App.1999), trans. denied. An award of prejudgment interest is proper only where a simple mathematical computation is required. Id. Damages that are the subject of a good faith dispute cannot allow for an award of prejudgment interest. Id. Here, we reject Pichon’s contention that more than a simple mathematical computation is required to determine the amount of prejudgment interest owing on the $650K note, should Pichón be found liable for all or some of the balance owed on the note. Accordingly, the trial court may properly award prejudgment interest on remand, if appropriate.

Issue Eight: Attorney’s Fees

Pichón contends that the trial court abused its discretion when it awarded attorney’s fees to AHB in the amount of $150,000. In particular, Pichón maintains that the award is unreasonable because AHB only prevailed on its claim regarding the $650K note but claimed attorney’s fees that predated that claim. Because we reverse the judgment in favor of AHB on the $650K note, we also reverse the award of attorney’s fees for AHB, which derive from the terms of that note.

Issue Nine: Set-off

Finally, Pichón contends that he is entitled to a set-off against the award to AHB in the amount of $162,000. In particular, Pichón states that “in addition to paying off the 737K Note in its entirety from the proceeds of the sale of GPP, Earl made 2 other payments against the Pichón loans in 2003, totaling $162,000.” Brief of Appellant at 38-39. Pichón maintains that his liability on the $650K note should be reduced by that amount to avoid a windfall to AHB. The evidence appears to be undisputed that Earl made those payments totaling $162,000.

AHB contends, however, that Pichón has waived the issue of a set-off for failure to assert it as a counterclaim or include it in the PTO. However, in its argument on appeal in support of the attorney’s fee award, AHB avers that “[t]o prevail on its claim under the 650K Note, AH[B] had to address the counterclaims filed by Pichón through which he sought ‘set offs’ which would reduce any recovery by AH[B] on the 650K Note.” Brief of Appellee at 34. AHB cannot have it both ways. We hold that if Pichón is found liable on the $650K note on remand, he is entitled to a set-off in the amount of $162,OOO. See Crider & Crider, Inc. v. Downen, 873 N.E.2d 1115, 1119 (Ind.Ct.App.2007) (observing that the law disfavors a windfall or a double recovery).

Conclusion

While Pichón failed to raise the affirmative defense of payment in his answer, AHB included in its statement of issues for trial in the PTO the issue of “[w]hether there is an unpaid balance owing to AH[B] on the 650K Note and, if so, the amount thereof.” Appellant’s App. at 44. Accordingly, Exhibit A, which is an original of the $650K note stamped “paid,” is relevant to the issue of whether there is an unpaid balance on that note, and the trial court should have admitted it into evidence. The trial court’s exclusion of Exhibit A prejudiced Pichón to such an extent that we hold it was reversible error. We reverse the trial court’s judgment with respect to the $650K note, only, and remand for a new trial on that issue. To the extent that the remaining issues will recur on remand, we hold that: AHB has standing to sue Pichón on the $650K note; Pi-chon has waived the issues of illegality, accord and satisfaction, and consideration; the trial court did not err when it denied Pichón an award on his counterclaims for failure to show pecuniary loss; prejudgment interest is appropriate in this case should AHB prevail on retrial; and Pichón is entitled to a set-off in the amount of $162,000 if he is found to be liable on the $650K note on retrial. Finally, we reverse the trial court’s attorney’s fee award.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

KIRSCH, J., and MAY, J., concur.

      . Since AHB filed its complaint in this matter, it has changed its name. We use its original name in this opinion for ease of discussion.

      . Pichón was the only defendant remaining in the case at the time of trial.

      .To the extent Pichón claims that the trial court entered judgment in favor of AHB on the issue of the $737K note, Pichón is mistaken. The trial court’s judgment against Pichón includes only: $650,000 (for the $650K note); prejudgment interest of $389,105.13 on the $650,000 debt; and attorney’s fees of $150,000. Accordingly, we do not address Pichon's argument on appeal regarding whether the trial court erred when it entered judgment on the $737K note.

      . As this case makes clear, the practice of executing more than one original note is fraught with risk.

      . Pichón does not appeal the trial court’s conclusion that his signature was not forged on the $650K note.

      . During Pichon's cross-examination of Christlieb, Christlieb acknowledged that Exhibit A was included in AHB’s exhibit book as Exhibit 33.

      . We affirm the trial court’s judgment in favor of Pichón with respect to the $737K note, and that issue will not be retried on remand.

      . In Smithson v. Howard Regional Health System, 933 N.E.2d 1, 2 n. 2 (Ind.Ct.App.2010), this court observed that "a plaintiff must affirmatively show prejudice to his case before [a belatedly raised affirmative defense] can be rejected.” (Quoting City of S. Bend v. Dollahan, 918 N.E.2d 343, 349-50 (Ind.Ct.App.2009), trans. denied). Here, Pichón makes no contention that AHB failed to show prejudice as a result of his failure to assert the affirmative defense of illegality. Hence, we need not address this issue.

      . Again, Pichón makes no contention that AHB failed to show prejudice as a result of his failure to assert the affirmative defense of accord and satisfaction. Hence, we need not address this issue.

      . To the extent Pichón contends that AHB committed fraud and/or conversion when it did not give him $650,000 when he executed the $650K note, the trial court found that Pichón was aware that those funds were meant to go to Earl at the note's inception. Pichon now claims that that finding was not supported by the evidence, but we disagree. Pichon's claim on this issue amounts to a request that we reweigh the evidence, which we will not do.

      .Indiana Code Section 34-24-3-1 provides in relevant part that if a person suffers a pecuniary loss as a result of property offenses, such as conversion, he may bring a civil action for treble damages.

      . To the extent AHB contends that Pichón is not entitled to a set off because the payments were made on the loans by Earl, we direct AHB to Indiana Code Section 26-1-3.1-602, which provides in relevant part that "an instrument is paid to the extent payment is made ... by or on behalf of a party obliged to pay the instrumentf.]” To be clear, however, because Pichón has not shown that he suffered a pecuniary loss. Pichón is not entitled to treble damages under Indiana Code Section 34-24-3-1.


text:
    Steven NEWVILLE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 34A02-1205-CR-379.
    Court of Appeals of Indiana.
    Jan. 17, 2013.
    Ordered Published Feb. 13, 2013.

      Derick W. Steele, Deputy Public Defender, Kokomo, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Steven Newville appeals his conviction for attempted rape, a Class A felony, following a jury trial. Newville presents a single issue for review, namely, whether the evidence is sufficient to support his conviction.

We affirm.

FACTS AND PROCEDURAL HISTORY

On March 9, 2011, J.L. stopped at a Dollar General on her way to meet a friend for lunch. When she went into the store, she left her keys in the ignition and her purse in the car. In her purse were her cellular phone, her wallet, and an envelope containing four hundred dollars in cash, and sixty dollars were visible in her driver’s side visor.

When J.L. returned to her vehicle from the store, she noticed that a blue van had backed into the parking space next to her vehicle and was parked over the line and extremely close to her vehicle. After J.L. sat in the driver’s seat of her car and shut her door, a man later identified as New-ville grabbed her over the mouth and eyes with latex-covered hands from the seat behind her. J.L. “immediately began to struggle” to free herself, but Newville told her, “bitch, don’t move or I’ll kill you.” Transcript at 111. J.L. tried to look in the rearview mirror to see her attacker, but Newville reached up to swipe at the mirror. At that point, J.L. opened her driver’s side door with her left hand and kicked it open wide with her foot. She got her head out of the door and screamed, but Newville pulled her back inside by her hair and her mouth, trying to get her into the back seat. J.L. cupped her foot under the interior of the vehicle in an attempt to thwart Newville’s efforts. When she relaxed to catch her breath, Newville loosened his grip slightly. J.L. then pulled herself out of the vehicle and ran away from the car, with Newville still holding some of her hair. He then grabbed her sweatshirt, but she slipped out of it and ran away.

Once out of her car, J.L. began to scream for help. Newville then squeezed out of the back right-side door of J.L.’s vehicle, next to the passenger side of his extremely closely parked van. Newville squeezed between his van and J.L.’s car and ran across the parking lot and across Morgan Street. Others had gathered in the parking lot but were not reacting, so J.L. began chasing Newville. A nearby truck driver then told J.L. that someone else would get Newville, and two men then started after Newville.

One of the truck drivers, Brandon Finn, had seen the attack. He notified the Kokomo Police Department that he was following the attacker. At one point Newville picked up a piece of pipe and threatened Finn with it, but then ran away again. Eventually, police came from another direction toward Newville, and Finn jumped on top of Newville. After Newville was Mirandized, he said he had not meant to scare J.L.

When police brought Newville back to the parking lot, J.L. identified him as her attacker. In Newville’s sweatshirt pocket police found coiled up wire and latest gloves. Newville’s van was the vehicle parked close next to J.L.’s car. When police executed a search warrant on the van, they found numerous items of a sexual nature in the van, including sex toys, condoms, and many bottles of sexual lubricant. They also found more latex gloves, restraints of various sizes, and a shock collar. They also found a digital camera, memory cards, and a computer in the van. On these devices police found many photographs of women in parking lots, some of the locations identified as in Kokomo.

The State filed an information charging Newville with attempted rape, as a Class A felony; criminal confinement, as a Class C felony; battery, as a Class A misdemean- or; and with being an habitual offender. The State later filed an amended information adding a charge of attempted robbery, as a Class B felony, and receiving stolen property, as a Class D felony. A bifurcated jury trial commenced January 30, 2012. The jury returned a verdict of guilty on all counts except the attempted robbery count, for which Newville was acquitted. The trial court then moved to the habitual offender phase of trial, and, following evidence, the jury adjudicated Newville an habitual offender. The trial court entered judgment of conviction accordingly.

On April 18, the trial court held a sentencing hearing. The court entered judgment of conviction on attempted rape and receiving stolen property. After identifying and weighing aggravators and miti-gators, the court sentenced Newville to fifty years for attempted rape, enhanced by thirty years for the habitual offender adjudication. And the court sentenced Newville to three years for receiving stolen property to be served consecutive to the attempted rape sentence. Newville now appeals.

DISCUSSION AND DECISION

Newville contends that the State failed to present sufficient evidence to prove that he committed attempted rape, as a Class A felony. When reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind.2003). We look only to the probative evidence supporting the judgment and the reasonable inferences that may be drawn from that evidence to determine whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative value to support the conviction, it will not be set aside. Id. We review both circumstantial and direct evidence most favorable to the State. See Thomas v. State, 519 N.E.2d 143, 144-45 (Ind.1988).

To prove rape the State was required to show beyond a reasonable doubt that a defendant knowingly or intentionally has sexual intercourse with a member of the opposite sex by compelling the other person by force or imminent threat of force. Ind. Code § 35-42-4-1. And “[a] person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime.” Ind. Code § 35-41-5-l(a). A substantial step is any overt act beyond mere preparation and in furtherance of the intent to commit the offense. Kiplinger v. State, 922 N.E.2d 1261, 1266 (Ind.2010) (citation omitted). An offense is deemed committed when a person knowingly or intentionally aids, induces, or causes another person to commit that offense. Ind. Code § 35 — 41— 2-4.

Here, the evidence shows that Newville backed his van into the parking space next to J.L.’s vehicle while she was in the store. His van was parked over the line and very close to the passenger side of J.L.’s vehicle. When J.L. entered her car, Newville was waiting in the back seat and grabbed her from behind. She had left the car keys, her purse, and a substantial amount of cash easily accessible in the vehicle. Newville had moved the keys to the back seat but had left J.L.’s other belongings undisturbed. And while wearing latex gloves, he repeatedly attempted to pull J.L. into the back seat of her own car.

Once Newville was apprehended and police executed a search warrant on his van, they found numerous items of a sexual nature inside. Specifically, officers found that the middle seat had been removed from the van, as had the clutter that they found in the rest of the van. Also in the van they found sex toys, condoms, many bottles of sexual lubricant, more latex gloves, restraints of various sizes, a shock collar, a digital camera, memory cards, and a computer. On the memory cards and computer, police found many photographs of women in parking lots, some of the locations identified as in Kokomo.

In sum, the direct evidence of the attack and its nature and circumstantial evidence of the way Newville parked the van and the items found in the van support his conviction for attempted rape. Newville argues that the circumstantial evidence is “tenuous at best,” but that argument merely amounts to a request that we reweigh the evidence. We will not do so. See Jones, 783 N.E.2d at 1139. We affirm Newville’s conviction for attempted rape.

Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.

      . Newville was also convicted of criminal confinement, as a Class C felony; battery, as a Class A misdemeanor; and receiving stolen property, as a Class D felony. And he was adjudicated an habitual offender. Newville does not appeal those convictions or his habitual offender adjudication.

      . In the sentencing order, the trial court "vacated” the convictions for criminal confinement and battery "on double jeopardy grounds.” Appellant’s App. at 207.