author: NAJAM, Judge.

text:
    The CAIN FAMILY FARM, L.P., and The Cain Family Farm, LLC, Appellants-Plaintiffs, v. SCHRADER REAL ESTATE & AUCTION COMPANY, INC., Charles O. Drerup, Antlers Ridge, LLC, and Candace J. Somerlott, Appellees-Defendants.
    No. 57A03-1209-PL-394.
    Court of Appeals of Indiana.
    July 16, 2013.

      Robert S. Daniels, Matthew L. Kelsey, DeFur Voran, LLP, Fishers, IN, Attorneys for Appellants.
    Joshua A. Burkhardt, Beers Mailers Backs & Salin, LLP, Fort Wayne, IN, Stephen R. Snyder, Randall L. Morgan, Snyder Morgan LLP, Syracuse, IN, Attorneys for Appellees.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

The Cain Family Farm, L.P. (“the Limited Partnership”), and The Cain Family Farm, LLC (“the LLC”) (collectively “Cain Family Farm”), appeal. the trial court’s grant of summary judgment in favor of Charles' 0. Drerup and Antlers Ridge, LLC (“Antlers Ridge”) on Cain Family Farm’s complaint seeking to prevent the transfer of real property owned by the Limited Partnership to Antlers Ridge. Cain Family Farm also appeals the trial court’s denial of its cross-motion for summary judgment. Cain Family Farm presents the following dispositive issues for review on appeal:

1. Whether the trial court erred when it concluded that there is no genuine issue of material fact regarding Candace Somerlott’s apparent authority to bind the LLC when she executed a purchase agreement for the sale of real property to Antlers Ridge.
2. Whether the trial court erred when it interpreted and applied Indiana Code Section 23-18-3-l.l(b) of the Indiana Business Flexibility Act.
We affirm.

FACTS AND PROCEDURAL HISTORY

The Limited Partnership holds title to approximately 400 acres of real property in the Sylvan Lake area of Noble County (“the Sylvan Lake property”). The property consists of seventeen tracts, including lake front property, tillable farm acreage, and woodlands. The LLC is the sole general partner of the Limited Partnership and has exclusive control of the management and operation of the Limited Partnership. In particular, the Limited Partnership Agreement provides the LLC with “the full and exclusive power” to manage and operate the Limited Partnership’s affairs, “including (but not limited to) the power to: (a) buy and sell any real or personal property to or from any person[.]” Appellants’ App. at 17. The LLC, in turn, is “managed by its members.” Id. at 193. The four Cain siblings, Candace Somerlott, Melanie Sue Todd, John Cain, Jr., and Patricia Dekko (collectively “the Cain siblings”), are the only members of the LLC and are also the only limited partners in the Limited Partnership.

On August 6, 2008, the Limited Partnership entered into an' “Exclusive Contract for the Sale of Real Estate” (“Auction Contract”) with Schrader Real Estate & Auction Company (“Schrader”) for the sale of each tract of the Sylvan Lake property at public auction. Candace signed the Auction Contract as a member of the LLC, the general partner, for the Limited Partnership and with the consent of the other Cain siblings. The Auction Contract included a provision stating that the Limited Partnership “reserves the right to accept or reject auction bids.” Id. at 19. Thereafter, Schrader advertised the Sylvan Lake property for sale at a public auction to be held on October 25, 2008, in Kendall-ville.

In early August, Candace had told Drer-up that she and her siblings were going to sell the Sylvan Lake property, and Drerup expressed an interest in purchasing a portion of the Sylvan Lake property to use as a hunt club. Drerup had known the father of the Cain siblings and had hunted on the Sylvan Lake property for decades with the family’s permission. Candace advised Drerup that appraisals of the relevant portion of the property indicated a value between $1,650,000 and $3,000,000. Drerup proposed a possible purchase price of $2,000,000, but Candace told him that that price was unacceptable to her and her siblings. Candace further advised Drerup that any sale would have to be approved by all of the siblings.

Before the auction, the Cain siblings discussed “reserve prices” for each of the tracts of the Sylvan Lake property to be sold at auction, and they agreed that the minimum price for Tracts 2 through 17, if sold together, would be $2,500,000. After Schrader representatives suggested that that price was too high, the Cain siblings agreed to a minimum price for Tracts 2 through 17 of $2,250,000. The Cain siblings also agreed that, if the bids did “not meet or exceed” the agreed minimum prices, the tracts would not be sold. Appellants’ App. at 36. Finally, the Cain siblings agreed that unanimous consent was necessary to sell any tract of the Sylvan Lake property.

On October 25, Schrader conducted the auction. Candace, Melanie, and John attended, and Patricia was available by telephone. Drerup, a member of Antlers Ridge, attended the auction with other members of Antlers Ridge, and they intended to bid on several of the tracts offered for sale. At some point late in the auction, when the bidding had slowed, Kevin Jordan and Rex Schrader, who both worked for Schrader, met with Candace, Melanie, and John in a private room off of the main auction hall. Drerup was not present at that meeting. Jordan and Rex wanted to discuss the bidding, which was well below the minimum prices set for the tracts by the Cain siblings prior to the auction. None of the Cain siblings in attendance agreed that the tracts should sell for any amount below the previously agreed upon minimum prices. Candace eventually told Melanie and John that she would be “happy with whatever they wanted to do,” and Candace left the meeting and returned to the auction hall. Appellants’ App. at 1146. It is undisputed that, in the course of the private meeting, the Cain siblings rejected the bid on Tract 5 because it was too low.

A short time later, Melanie and John also returned to the auction hall. The auctioneer announced that all but one tract of the Sylvan Lake property, Tract 5, would be sold that day, and the auctioneer commenced a two minute countdown for final bids. Neither Melanie nor John heard that announcement, and they did nothing to interrupt the auction. At the close of bidding, Antlers Ridge had made the highest bids on Tracts 2 through 4 and 6 through 17, for a total purchase price of $1,350,000. Candace had made the highest bid on Tract 1, but that bid was below the minimum price previously agreed upon by the Cain siblings.

After Candace heard the auctioneer announce that the tracts would be sold that day, she and her husband looked at the bidding for Tract 1 and observed that the bid was too low. Candace “called Rex over to the table” where she and' her husband were sitting, and she indicated to Rex that Tract 1 would not be sold because the final bid was too low. According to Candace, Rex responded, in a' “gruff and rough demeanor,” “Oh yes you are. We have already announced it. The farm is selling today. It is selling today.” Appellants’ App. at 1187. Candace testified that as he made those statements, Rex had “put his hands on the table [and] leaned over in my face[.]” Id.

At the conclusion of the bidding, Melanie and John went outside to discuss the auction, and then they returned inside to find Candace. In the meantime, Schrader had prepared and Candace and Drerup had signed a purchase agreement for Antlers Ridge’s purchase of Tracts 2 through 4 and 6 through 17, for a total purchase price of $1,350,000 (“the Purchase Agreement”). Candace executed the Purchase Agreement in the name of the LLC, in its capacity as the general partner of the Limited Partnership.

Approximately two weeks after the auction, “the Limited Partnership and LLC, through [their] legal counsel” wrote a letter to Schrader “demanding]” that the Purchase Agreement be rescinded, and Cain Family Farm did not close on the sale. Id. at 318. And on December 23, Cain Family Farm filed a complaint against Schrader, Antlers Ridge, and Candace alleging breach of contract (against Schrader) and breach of fiduciary duty (against Candace), seeking to quiet title (against Antlers Ridge), and seeking a declaratory judgment and attorney’s fees. After filing an answer and counterclaim for specific performance of the Purchase Agreement, Antlers Ridge filed a motion for summary judgment, and Cain Family Farm filed a cross-motion for summary judgment. Following a hearing, the trial court entered summary judgment in favor of Antlers Ridge and denied Cain Family Farm’s cross-motion for summary judgment. The trial court concluded in relevant part:

11. Although they point to Schrader as the responsible party, the Cain Entities in their complaint effectively conceded through their own allegations that actions at the October 25, 2008[,] auction “created an appearance of actual and/or apparent authority on behalf of Candace to execute the Purchase Agreements mentioned above.” See Complaint, [paragraph] 31. Schrader served as the Cain Entities’ exclusive agent for purposes of selling the Real Estate at the public auction pursuant to the admittedly authorized Auction Contract and such exclusive agency was further set forth in the auction advertisements disseminated to the public....
* * *
14. Based upon the designated evidence, the Court concludes that the Cain Entities placed Candace in a position to perform acts appearing reasonable to a third person such as Drerup, including executing the Antlers Ridge Purchase Agreement, and their action in doing so was sufficient to endow Candace with apparent authority. See Gallant Ins. Co. v. Isaac, 751 N.E.2d 672, 677 (Ind. 2001). Moreover, consistent with Candace’s own belief as to her authority to execute the Antlers Ridge Purchase Agreement on behalf of the Cain Entities and the expectation that she would be solely executing any purchase agreements resulting from the auction on behalf of the Cain Entities, and with no objections separately communicated by John or Melanie to any bidder at the auction, the Antlers Ridge Defendants, like Dreyer & Reinbold in AutoXchange.com [, Inc. v. Dreyer & Reinbold, Inc., 816 N.E.2d 40 (Ind.Ct.App.2004) ], reasonably believed that Candace possessed such authority.
15. Based upon the designated evidence, the Court further separately and alternatively concludes that Candace’s execution of the Antlers Ridge Purchase Agreement was, like the agent in Au-toXchange.com, nothing more than what she had historically done on behalf of the Cain Entities as limited partner of the Cain Family Farm and member of [the LLC] and she possessed the inherent authority to do so.... Moreover, consistent with Candace’s status within the Cain Entities, her leading role in connection with the auction, and the expectation that she would be solely executing any purchase agreements resulting from the auction on behalf of the Cain Entities, and with no objections separately communicated by John or Melanie to any bidder at the auction, the Antlers Ridge Defendants, like Dreyer & Reinbold in AutoXchange.com, reasonably believed that Candace possessed such authority and had no notice to the contrary.

Appellants’ App. at 29-31. This interlocutory appeal as of right under Indiana Appellate Rule 14(A)(4) ensued.

DISCUSSION AND DECISION Standard of Review

Our standard of review for summary judgment appeals is well established:

When reviewing a grant [or denial] of summary judgment, our standard of review is the same as that of the trial court. Considering only those facts that the parties designated to the trial court, we must determine whether there is a “genuine issue as to any material fact” and whether “the moving party is entitled to a judgment as a matter of law.” In answering these questions, the reviewing court construes all factual inferences in the non-moving party’s favor and resolves all doubts as to the existence of a material issue against the moving party. The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law; and once the movant satisfies the burden, the burden then shifts to the non-moving party to designate and produce evidence of facts showing the existence of a genuine issue of material fact.

Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind.2009) (citations omitted). The party appealing a summary judgment decision has the burden of persuading this court that the grant or denial of summary judgment was erroneous. Knoebel v. Clark County Superior Court No. 1. 901 N.E.2d 529, 531-32 (Ind. Ct.App.2009). Where the facts are undisputed and the issue presented is a pure question of law, we review the matter de novo. Crum v. City of Terre Haute ex rel. Dep’t of Redev., 812 N.E.2d 164, 166 (Ind. Ct.App.2004). While we are not bound by the trial court’s findings and conclusions and give them no deference, they aid our review by providing the reasons for the trial court’s decision. See GDC Envtl. Servs. Inc. v. Ransbottom Landfill, 740 N.E.2d 1254, 1257 (Ind.Ct.App.2000).

Issue One: Apparent Authority

Cain Family Farm contends that Candace, in her capacity as a member of the LLC, “had neither the apparent nor inherent authority to bind the LLC” and, by extension, the Limited Partnership, to the Purchase Agreement. Brief of Appellants at 27. Cain Family Farm maintains that the trial court “incorrectly applied prior case law on apparent and inherent authority,” the trial court’s holding “was inconsistent with the facts designated by the Cain Family Farm,” and “[a]t the very least, whether [Candace] is cloaked with apparent and/or inherent authority to execute the [Purchase Agreement] is a genuine issue of material fact” precluding summary judgment. Id. We cannot agree.

Apparent authority is the authority that a third person reasonably believes an agent to possess because of some manifestation from the agent’s principal. Pepkowski v. Life of Indiana Ins. Co., 535 N.E.2d 1164, 1166 (Ind.1989). The necessary manifestation is one made by the principal to a third party, who in turn is instilled with a reasonable belief that another individual is an agent of the principal. Id. at 1166-67. It is essential that there be some form of communication, direct or indirect, by the principal, which instills a reasonable belief in the mind of the third party. Id. at 1167. Statements or manifestations made by the agent are not sufficient to create an apparent agency relationship. Id. Generally, the question of whether an agency relationship exists is a question of fact. Douglas v. Monroe, 743 N.E.2d 1181, 1187 (Ind.Ct.App.2001). However, if the evidence is undisputed, there are times when summary judgment is appropriate in agency cases. Id. In Gallant Insurance Co. v. Isaac, 751 N.E.2d 672, 677 (Ind.2001), our supreme court observed that

it is clear that the “manifestations” referred to in Pepkowski need not be in the form of direct communications, but rather the placing of the agent in a position to perform acts or make representations which appear reasonable to a third person is a sufficient manifestation to endow the agent with apparent authority.

Here, Candace and two of her siblings were present throughout the auction, and the undisputed designated evidence shows that Drerup knew that Candace and her two siblings had “met in private”; they had rejected the bid on Tract 5; and, insofar as Drerup knew or had reason to believe, they had not rejected the bids by Antlers Ridge on Tracts 2 through 4 and 6 through 17. Appellants’ App. at 424. Indeed, following the Cain siblings’ private meeting with Schrader representatives, Schrader, the Cains’ exclusive agent under the Auction ■ Contract, announced to the audience that all but Tract 5 would sell that day. The Cain siblings had a right to reject any bid, and they had exercised their right to reject the bid on Tract 5, which the auctioneer announced, but they did not indicate to Drerup, either in person or through Schrader, that they had any objection to the Antlers Ridge bids. As such, by their conduct and through their agent, Schrader, the Cain siblings indirectly communicated to Drerup and Antlers Ridge that they had accepted the remaining bids at the close of the auction.

Schrader then presented the Purchase Agreement to Drerup and Candace to be signed. Again, Candace had previously communicated to Drerup that the consent of all the Cain siblings was required to sell the property. Because the Cain siblings attended the auction and did not indicate to Drerup that they had rejected the Antlers Ridge bids, and because Schrader, Cain Family Farm’s exclusive agent for the sale, presented the Purchase Agreement for Candace’s and Drerup’s signatures, Drerup reasonably believed that Candace had obtained the consent of her siblings and was authorized to sign the Purchase Agreement. Finally, in their Complaint, Cain Family Farm alleged that Schrader “created an appearance of actual and/or apparent authority on behalf of Candace to execute the Purchase Agreements!;.]” Appellants’ App. at 39. And the trial court concluded that Cain Family Farm thereby “effectively conceded ... that actions at the October 25, 2008 auction” created the appearance of apparent authority. Id. at 30.

Cain Family Farm has not designated evidence of facts showing the existence of a genuine issue of material fact on the question of apparent authority. We agree with the trial court’s conclusion that Cain Family Farm “placed Candace in a position to perform acts appearing reasonable to a third person such as Drerup, including executing the Antlers Ridge Purchase Agreement, and their action in doing so was sufficient to endow Candace with apparent authority.” Id. While the existence of apparent authority is generally a question of fact, we hold that there are no genuine issues of material fact and that Candace had apparent authority, as a matter of law, to execute the Purchase Agreement. See Gallant, 751 N.E.2d at 678 (holding insurance agency had apparent authority to bind insurance company as a matter of law).

Issue Two: Indiana Code Section 23-18-3-1.1

Cain Family Farm next contends that the trial court “erroneously applied I.C. § 23 — 18—3—1.1(b)” to conclude that Candace had the authority to bind the LLC to the Purchase Agreement. Indiana Code Section 23-18-3-1.1 provides:

(a) A limited liability company formed under this article after June 30, 1999, is governed by this section.
(b) Except as provided in subsection (c) or the articles of organization, each member is an agent of the limited liability company for the purpose of the limited liability company’s business or affairs, and the act of any member, including the execution in the name of the limited liability company of an instrument for apparently carrying on in the usual way the business or affairs of the limited liability company, binds the limited liability company, unless:
(1) the acting member does not have authority to act for the limited liability company in the particular matter, and
(2) the person with whom the member is dealing has knowledge of the fact that the member does not have the authority to act.
(c) If the articles of organization provide for a manager or managers, and except to the extent provided in the articles of organization:
(1) a member acting solely in the capacity as a member is not an agent of the limited liability company; and
(2) each manager is an agent of the limited liability company for the purpose of its business or affairs, and the act of any manager, including the execution in the name of the limited liability company of any instrument, for apparently carrying on in the usual way the business or affairs of the limited liability company binds the limited liability company, unless the manager does not have authority to act for the limited liability company in the particular matter, and the person with whom the manager is dealing has knowledge of the fact that the manager does not have the authority to act.
(d)An act of a manager or member that is not apparently for the carrying on in the usual way the business of the limited liability company does not bind the limited liability company unless authorized in accordance ivith a written operating agreement or by the unanimous consent of all members at any time.

(Emphases added).

Here, on this issue, the trial court concluded in relevant part that

the Cain Entities are bound to the Antlers Ridge Purchase Agreement pursuant to IC § 23-18-3-l.l(b). In this case, Candace was a limited partner of the [Limited Partnership] and member of the member-managed [LLC]. General Partner served as the sole general partner of the Cain Family Farm in “exclusive control” of the management and operation of the Cain Family Farm. Since General Partner’s articles of organization contain no limits, General Partner possesses all of the powers of an individual “to do all things necessary or convenient to carry out its business and affairs,” including but not limited to a) selling, conveying and otherwise disposing “of all or any part of its property,” b) making contracts and incurring liabilities, and c) serving as a partner, member, manager or other agent of “any corporation, partnership, limited liability company, foreign limited liability company, joint venture, trust, or other enterprise.” See IC § 23-18-2-2. The sale of the Real Estate was in furtherance of the admittedly authorized Auction Contract solely executed by Candace on behalf of the Cain Entities and well within the scope of the full and exclusive powers General Partner possessed as the sole general partner of the Cain Family Farm. Moreover, Candace’s execution of the Antlers Ridge Purchase Agreement was consistent with her history of solely executing real estate documents on behalf of the Cain Entities and indeed the expectation that she would be solely executing any purchase agreements resulting from the auction on behalf of the Cain Entities. The Antlers Ridge Defendants finally had no knowledge that Candace purportedly lacked the authority to execute the Antlers Ridge Purchase Agreement. For their part, as bearing on the latter point, John and Melanie failed to separately communicate any objections to Candace or the Antlers Ridge Defendants while at the auction site as to Candace’s authority to execute the Antlers Ridge Purchase Agreement on behalf of the Cain Entities.

Appellants’ App. at 31-32 (emphasis added, citations to record omitted).

Cain Family Farm maintains that subsection (d) of the statute applies here, not subsection (b). In particular, Cain Family Farm asserts that there is no genuine issue of material fact that Candace’s actions were “not apparently for the carrying on in the usual way the business of the [LLC].” Brief of Appellants at 20. And Cain Family Farm asserts that there is no genuine issue of material fact that Candace did not have the unanimous consent of the members of the LLC to bind it to the Purchase Agreement. Thus, Cain Family Farm contends that the Purchase Agreement is “not valid and enforceable.” Id.

No Indiana court has yet interpreted or applied the statutory language at issue, namely, “apparently carrying on in the usual way the business or affairs of the limited liability company.” I.C. § 23-18-3-l.l(b). Thus, we are presented with an issue of first impression. Cain Family Farm argues that it “is not in the business of selling real estate,” the sale of the Sylvan Lake property was “a major endeav- or,” and the sale was a “liquidation of the assets” of Cain Family Farm. Brief of Appellants at 21-22. Thus, Cain Family Farm contends that Candace was not “apparently carrying on in the usual way the business or affairs” of the LLC when she executed the Purchase Agreement. See I.C. § 23 — 18—3—1 -1(b). Antlers Ridge, however, contends that Cain Family Farm had sold real estate in the past; Candace had previously executed documents binding the LLC, including a contract to develop real estate; and, as the trial court found, Candace, as a member of the general partner, had explicit authority to sell real estate under the Limited Partnership Agreement.

We agree with the trial court and hold that subsection (b) applies here. The business of the LLC was, simply, to act as the general partner of the Limited Partnership, which owned the real estate. The Limited Partnership Agreement gave the LLC “the full and exclusive power” to manage and operate the Limited Partnership’s affairs, including the power to “buy and sell any real or personal property[J” Appellants’ App. at 198. Thus, as described in Issue One, when Candace signed the Purchase Agreement she “apparently earr[ied] on in the usual way the business” of the LLC, which was to act as the general partner- of the Limited Partnership. Further, the undisputed evidence shows that all the Cain siblings agreed to sell the Sylvan Lake property at auction and had authorized Candace to execute the Auction Contract. Finally, because subsections (b)(1) and (b)(2) of Indiana Code Section 23-18-3-1.1 are exceptions written in the conjunctive, and because the undisputed designated evidence shows that Drerup had no knowledge or reason to believe that Candace did not have the authority to bind the LLC, the Purchase Agreement is enforceable under subsection (b).

Conclusion

The dispositive issue on appeal is whether Candace had apparent authority to bind the LLC and, by extension, the Limited Partnership, when she executed the Purchase Agreement. While the designated evidence reveals questions of material fact concerning whether Candace had actual authority to bind the LLC and whether Schrader breached its contract and violated its fiduciary duty to Cain Family Farm, those issues are not before us in this appeal. The undisputed designated evidence shows that the Cain siblings gave Drerup the reasonable belief that Candace represented them and was authorized to execute the Purchase Agreement on behalf of the LLC. During the auction, the Cain siblings rejected the bid on Tract 5, while, insofar as Drerup knew or had reason to believe, they had not rejected the Antlers Ridge bids on Tracts 2 through 4 and 6 through 17, and their agent, Schrader, expressly and publicly stated that the farm was being sold that day and presented Drerup and Candace with a purchase agreement. By all appearances, Candace had authority, and there are no indicia that would have placed Drerup on notice or inquiry notice that Candace did not have authority to sign the Purchase Agreement for the LLC. Thus, the Purchase Agreement is valid and enforceable under the doctrine of apparent authority. And because Candace executed the Purchase Agreement “for apparently carrying on in the usual way the business” of the LLC, namely, to act as the general partner of the Limited Partnership, the Purchase Agreement is also valid and enforceable under Indiana Code Section 23-18-3-l.l(b). Whether we consider the question of apparent authority under the common law or the Indiana Business Flexibility Act, the outcome is the same.

Affirmed.

BAILEY, J., and BARNES, J., concur.

      . We held oral argument on May 13, 2013. We commend counsel for their excellent oral advocacy.

      . Drerup knew Candace personally and had contacted her on occasion when he observed trespassers on the property.

      . While the parties refer to “reserve prices,” neither the Auction Contract nor the auction notice indicated that a reserve, or minimum sale price, had been established. Actual reserve prices were unnecessary since the LLC reserved the right to reject any bid. We note that the parties dispute whether reserve prices had been set, but that dispute has no bearing on this appeal.

      . Candace was interested in buying Tract 1, so she and the siblings agreed that Tract 1 would be sold separately from the other tracts at auction.

      . The designated evidence is in dispute whether Patricia consented to sell the tracts at prices below the previously agreed upon minimum prices. Again, this dispute in the evidence has no bearing on this appeal.

      . Schrader and Candace also filed summary judgment motions, which were denied after a hearing, but the denial of those motions is not challenged in this appeal.

      . To the extent the Cain siblings have testified that they tried to reject the Antlers Ridge bids but were told by Schrader representatives that it was "too late” to do so, Appellants' App. at 324, there is no designated evidence showing that Drerup Or any other members of Antlers Ridge were aware of any such attempt prior to the execution of the Purchase Agreement. The Cain siblings’ claims against Schrader are not before us.

      . Again, Patricia was available by telephone.

      . Candace and the two siblings were present when the auctioneer announced, after the family meeting in the kitchen, that the farm would be sold that day. While the two siblings have testified that they did not hear that announcement, that designated evidence has no bearing on the issue of apparent authority. It is undisputed that, at the time Candace executed the Purchase Agreement, Drerup reasonably believed that the Cain siblings had not rejected his final bid. Furthermore, while there is a dispute whether Drerup knew that the Cain siblings had set "reserve prices” for the tracts prior to the auction and that Antlers Ridge's final bids did not meet or exceed those reserve prices, it is undisputed that there were no published reserve prices the day of the auction and the Cain siblings had a right to reject bids and exercised that right with respect to Tract 5. Thus, even assuming that Drerup knew about the reserve prices that had been set prior to the auction, the undisputed designated evidence shows that Candace had apparent authority to bind the LLC when she executed the Purchase Agreement at the conclusion of the auction.

      . To be clear, Cain Family Farm does not concede this issue. A plaintiff is entitled to argue theories in the alternative in a complaint, which is what Cain Family Farm did here. We merely observe that in its complaint Cain Family Farm attributed the "appearance” of apparent authority to Schrader’s conduct. Appellants’ App. at 39.

      . Because we hold that Candace had apparent authority, we need not decide whether she had actual authority to bind the LLC.

      . Whether Candace had actual authority to bind the LLC and whether Schrader breached its contract or violated its fiduciary duty to Cain Family Farm are issues for another day.


source: Caselaw Access Project

license: Public Domain

text:
    Marshall BANTER, Appellant-Plaintiff, v. Joshua SHEETS, Appellee-Defendant.
    No. 34A05-1212-CT-629.
    Court of Appeals of Indiana.
    July 16, 2013.

      David W. Stone IV, Stone Law Office & Legal Research, Anderson, IN, Michael W. Phelps, NUNN Law Office, Bloomington, IN, Attorneys for Appellant.
    Tim D. Mosby, Law Office of the Liberty Mutual Group, Carmel, IN, Attorney for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Marshall Banter filed a complaint against Joshua Sheets alleging negligence in causing an automobile accident. Sheets did not dispute his liability in causing the accident, but a jury found Banter 70% at fault. Banter filed a motion to correct error, which the trial court denied.

We reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

On July 2, 2008, Banter was driving his car in Kokomo and was stopped on Dixon Road, waiting to make a left turn, when Sheets, who was in his car and approaching Banter’s car from the rear, made a sudden maneuver and struck the rear of Banter’s car. Banter subsequently sought medical treatment for neck and back pain.

On January 6, 2010, Banter filed a complaint alleging Sheets’ negligence and seeking damages. At trial, Sheets conceded his liability in causing the accident, but he argued that Banter failed to mitigate his damages. The jury entered a verdict that apportioned 70% fault to Banter, who then filed a motion to correct error. The trial court granted that motion, finding “that the verdict as to the issue of comparative fault is not supported by the evidence[,]” and ordered a new trial. Appellant’s App. at 30. On retrial, the jury again apportioned 70% fault to Banter, who filed another motion to correct error. The trial court denied that motion. This appeal ensued.

DISCUSSION AND DECISION

Banter contends that he is entitled to a new trial because the jury misunderstood and misapplied the Comparative Fault Act (“the Act”). Under the Act, proportional liability is determined by the fact-finder allocating a percentage of “fault” to the claimant, the defendant, and any “nonparty.” See Ind.Code § 34-51-2-7. “In assessing percentage of fault, the jury shall consider the fault of all persons who caused or contributed to cause the alleged injury, death, or damage to property[.]” Id. If the claimant’s fault is fifty percent or less, the fact-finder determines a verdict by multiplying the percentage of fault of each defendant by the total amount of the claimant’s damages. See id. “Fault” is specifically defined for the purposes of the Act to include any act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others. See Ind.Code § 34-6-2-45. The term also includes unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages. Id.

Here, the trial court instructed the jury in relevant part as follows:

The plaintiff must use reasonable care to minimize his damages. This is called mitigation of damages. If you find a plaintiff failed to use reasonable care to minimize any of the damages he alleges he has sustained and that failure was a proximate cause of any of the damages he claims, then such conduct would constitute fault to be assessed against the plaintiff. The defendant has the burden of proving by a preponderance of the evidence that the plaintiff failed to use reasonable care to minimize his damages. Transcript at 275 (emphasis added). We hold that the highlighted portion of this jury instruction is an incorrect statement of the law.

In Kocher v. Getz, 824 N.E.2d 671, 672 (Ind.2005), “the tidal court refused instructions the defendant submitted on comparative fault, which would have permitted a jury to consider mitigation of damages for purposes of fault allocation. The jury found for the plaintiff. In a divided opinion, the Court of Appeals reversed.” On transfer, our supreme court affirmed the trial court, noting that, as here, “the principal issue presented by this appeal is whether the defense of mitigation of damages under the [the Act] is considered as comparative fault in determining liability.” See id. at 673. The court observed:

Rejecting the defendant’s argument that the mitigation of damages defense was expressly included within the statutory definition of “fault,” the court [in Deible v. Poole, 691 N.E.2d 1313, 1316 (Ind.Ct. App.1998), adopted by 702 N.E.2d 1076 (Ind.1998),] concluded: “We hold that mitigation of damages is a defense to the amount of damages a plaintiff is entitled to recover after the defendant has been found to have caused the tort. Mitigation of damages is not a defense to the ultimate issue of liability.” [Emphasis original.]
As pointed out in Deible, the obligation of a plaintiff to mitigate damages customarily refers to the expectation that a person injured should act to minimize damages after an injury-producing incident. Id. This concept is different from our statutory process of assessing percentage of fault which considers “the fault of all persons who caused or contributed to cause the alleged injury, death, or damage to property.” Ind. Code § 34-51-2-7, -8. Deible explains that “[f]ailure to minimize damages does not bar the remedy, but goes only to the amount of damages recoverable.” Deible, 691 N.E.2d at 1316 (quoting 22 Am. Jur.2d Damages § 497 (1988)).

Id. at 674. Thus, in Kocher, our supreme court held that “[t]he trial court’s refusal of the defendant’s proposed comparative fault instructions!, which would have permitted a jury to consider mitigation of damages for purposes of fault allocation] was consistent with our express adoption of Deible and should have been affirmed by the Court of Appeals.” 824 N.E.2d at 674.

Here, the trial court erroneously instructed the jury that if it found that Banter failed to mitigate his damages, “such conduct would constitute fault to be assessed” against Banter. See Transcript at 275. Because Sheets conceded liability, the only issue for the jury to determine was the amount of Banter’s damages, and there was no basis for any assessment of fault against Banter. We reverse and remand for a new trial, and the jury shall be instructed in relevant part that Sheets has conceded 100% fault in causing the accident and that the jury shall only determine the amount of Banter’s damages, if any. And as our supreme court observed in Kocher, “[w]hile a plaintiffs post-accident conduct that constitutes an unreasonable failure to mitigate damages is not to be considered in the assessment of fault, a plaintiff ‘may not recover for any item of damage that [the plaintiff] could have avoided through the use of reasonable care.’ ” 824 N.E.2d at 675 (quoting Indiana Pattern Jury Instruction No. 11.120 (2003)).

Reversed and remanded for a new trial.

BAILEY, J., and BARNES, J., concur.

      . We reject Sheets' contention that Banter has waived this issue for review on appeal. See Burton v. Bridwell, 938 N:E.2d 1, 5-6 (Ind.Ct.App.2010) (holding plaintiff properly preserved issue that allocation of fault was not supported by the evidence when she raised it for the first time in a motion to correct error).


author: BARTEAU, Senior Judge.

text:
    AUDITOR OF OWEN COUNTY and Treasurer of Owen County, Appellants-Respondents, v. ASSET RECOVERY, INC., Appellee-Petitioner.
    No. 60A01-1212-MI-592.
    Court of Appeals of Indiana.
    July 18, 2013.
    Richard W. Lorenz, Hickam & Lorenz, P.C., Spencer, IN, Attorney for Appellants.
    Jonathan Petersen, Natasha Burkett, Law Office of Jonathan Petersen, Hammond, IN, Attorneys for Appellee.
   OPINION

BARTEAU, Senior Judge.

STATEMENT OF THE CASE

The auditor and the treasurer of Owen County (“Owen County”) appeal the trial court’s order granting Asset Recovery, Inc.’s “Verified Petition and Claim for Surplus After Tax Sale.”

We reverse and remand.

ISSUE

Owen County presents one issue for our review, which we restate as: whether the trial court erred by granting Asset Recovery’s petition to claim the surplus funds from the tax sale of certain property in Owen County.

FACTS AND PROCEDURAL HISTORY

In 2010, real estate located in Owen County and belonging to Ora and Leafie Chambers (collectively “the Chamberses”) was sold at a tax sale. Because the purchaser paid more for the property than the amount required to fulfill the outstanding tax obligations, the excess money was deposited in the county’s tax sale surplus fund in accordance with Indiana Code section 6 — 1.1—24—7(a)(3) (2010). The Cham-berses were then entitled, pursuant to Indiana Code section 6 — 1.1—24—7(c)(1), to file a claim for the money deposited in the fund. On March 16, 2012, the Chamberses signed a document entitled “Bill of Sale and Assignment,” which purported to transfer to Asset Recovery their right to the surplus funds from the tax sale of their property in the amount of $7,465.50.

In April 2012, Asset Recovery filed with the trial court a motion to intervene and a petition for release of the surplus funds. Owen County filed an objection to Asset Recovery’s motion and petition. The trial court held a hearing and granted the motion to intervene but took under advisement Asset Recovery’s petition for release of the funds. The trial court later granted the petition for release of the surplus funds. It is from this order that Owen County now appeals.

DISCUSSION AND DECISION

Owen County contends that the trial court erred in granting Asset Recovery’s petition for release of the funds. Specifically, Owen County argues that Indiana Code section 6-1.1-24-7.5 (2010) invalidates the Bill of Sale and Assignment issued by the Chamberses to Asset Recovery such that Asset Recovery is not entitled to the Chamberses’ tax sale surplus funds.

We review the trial court’s grant of Asset Recovery’s petition for an abuse of discretion. An abuse of discretion occurs when a trial court reaches a conclusion that is against the logic and natural inferences that can be drawn from the facts and circumstances before it. Orndorff v. Ind. Bureau of Motor Vehicles, 982 N.E.2d 312, 319 (Ind.Ct.App.2012), trans. denied. An abuse of discretion also occurs when a trial court misinterprets the law. Id. In addition, the trial court abuses its discretion when it fails to comply with a statute, and our scope of review in that question is not limited in any way. Matter of S.L., 599 N.E.2d 227, 230 (Ind.Ct.App.1992).

Indiana Code section 6-1.1-24-7.5 provides:

(a) For purposes of this section, “property owner” refers to the owner of record of real property at the time the tax deed is issued and who is divested of ownership by the issuance of the tax deed.
(b) If a property owner enters into an agreement on or after May 1, 2010, that has the primary purpose of paying compensation to locate, deliver, recover, or assist in the recovery of money deposited in the tax sale surplus fund under section 7(a)(3) of this chapter with respect to real property as a result of a tax sale, the agreement is valid only if the agreement:
(1) requires payment of compensation of not more than ten percent (10%) of the amount collected from the tax sale surplus fund with respect to the real property, unless the amount collected is fifty dollars ($50) or less;
(2) is in writing;
(3) is signed by the property owner; and
(4) clearly sets forth:
(A) the amount deposited in the tax sale surplus fund under section 7(a)(3) of this chapter with respect to the real property; and
(B) the value of the property owner’s share of the amount collected from the tax sale surplus fund with respect to the real property after the compensation is deducted.

Here, the Chamberses are the property owners as defined in Indiana Code section 6-l.l-24-7.5(a). They were the owners of record of the property when it was sold and a tax deed was issued. As a result of that transaction, they were divested of their ownership of the property. The parties do not dispute this.

On March 16, 2012, the Chamberses entered into an agreement with Asset Recovery, a Colorado corporation, whereby they purportedly sold to Asset Recovery their rights to the surplus funds from the tax sale of their Indiana property. The agreement is entitled “Bill of Sale and Assignment,” and its terms state that for the sum of $4,479.30, $150 of which was paid in advance, the Chamberses assigned to Asset Recovery their personal property, specifically the “Excess Proceeds claim in the amount of $7,465.50 originating from the 9/1/2010 sale of tax defaulted property in Owen County under Map # 60-16-20-100-010.000-017.” Appellants’ App. p. 8.

This agreement between the Chambers-es and Asset Recovery is invalid pursuant to Indiana Code section 6-l.l-24-7.5(b) because it is an agreement that has the primary purpose of paying compensation to recover money deposited in a tax sale surplus fund with respect to property that has been the subject of a tax sale and requires payment of compensation of more than 10% of the amount to be collected from the tax sale surplus fund. We are unmoved by Asset Recovery’s disingenuous argument that the agreement is a bill of sale and assignment and nothing more. While the agreement, in form and label, is an assignment of rights to certain personal property (i.e., tax sale funds), it is in substance an asset recovery agreement. Substantively the agreement states that Asset Recovery will recover the Chamberses’ funds in the amount of $7,465.50 from Owen County’s tax sale surplus fund and give $4,479.30 to the Chamberses. This leaves $2,986.20 for Asset Recovery. The agreement contains no stated purpose, and we discern no other purpose for the agreement than to pay compensation to Asset Recovery for its recovery of the Cham-berses’ money from the tax sale surplus fund. Therefore, we refuse to accept Asset Recovery’s invitation to regard the agreement between it and the Chamberses as a bill of sale, thereby elevating its form over its true substance. See Citizens Action Coal. of Ind., Inc. v. N. Ind. Pub. Serv. Co., 804 N.E.2d 289, 301 (Ind.Ct.App. 2004) (stating that this Court has indicated its preference to place substance over form). Moreover, justice should not be defeated by technicalities. Binninger v. Hendricks Cnty. Bd. of Zoning Comm’rs, 668 N.E.2d 269, 272 (Ind.Ct.App.1996) (discussing Court’s policy not to exalt form over substance), trans. denied.

Having determined that the primary purpose of the agreement between Asset Recovery and the Chamberses is to pay compensation to Asset Recovery to recover money deposited in the tax sale surplus fund, we now turn to whether the agreement requires payment of more than 10% of the amount collected. Pursuant to its agreement with the Chamberses, Asset Recovery would receive $2,986.20. This amount is equal to 40% of the total amount collected from the surplus fund. In stark contrast, pursuant to Indiana Code section 6-l.l-24-7.5(b)(l), Asset Recovery is limited to 10% of the total amount collected from the surplus fund, which is equal to $746.55. Thus, Asset Recovery would receive $2,289.65 more as a result of circumventing the statute. The agreement is merely a ruse utilized by Asset Recovery to circumvent the 10% fee cap statutorily mandated by Indiana Code section 6 — 1.1— 24-7.5(b)(1). See, e.g., Greenpoint Bank v. Criscione, 23 Misc.3d 1106, 885 N.Y.S.2d 711 (2009) (holding that New York Abandoned Property Law § 1416 invalidated property recovery agreement because agreement provided for payment of fees in excess of 15% of value of recoverable property).

Moreover, as a matter of public policy, the statute is designed to protect the citizens of our state and to regulate the activities of property locator services whose primary purpose is to locate money deposited in tax sale surplus funds by capping the fees at 10% of the total amount collected from the surplus fund. Certainly, elderly property owners are a particular group of the population to be protected by this statute as their vulnerability is often preyed upon. Therefore, it would be error for us to ignore the spirit and objectives of Indiana Code section 6-1.1-24-7.5 by allowing Asset Recovery to be compensated for the recovery of the funds pursuant to the terms of its agreement with the Cham-berses.

CONCLUSION

For the reasons stated, we conclude that the trial court abused its discretion by granting Asset Recovery’s petition for the release of the surplus funds.

Reversed and remanded for further action not inconsistent with this opinion.

BRADFORD, J., and BROWN, J., concur.


author: MAY, Judge.

text:
    Christopher HALTERMAN, Appellant-Plaintiff, v. ADAMS COUNTY BOARD OF COMMISSIONERS, Adams County Sheriff, Charles Padgett, Adams County Sheriffs Department and Adams County Jail, Appellees-Defendants.
    No. 01A04-1211-CT-558.
    Court of Appeals of Indiana.
    July 18, 2013.

      Jon C. Abernathy, Andrew B. Janutolo, Goodin Abernathy, LLP, Indianapolis, IN, Attorneys for Appellant.

      Kathleen A. Kilar, Andrew S. Williams, Fort Wayne, IN, Attorneys for Appellees.
   OPINION

MAY, Judge.

Christopher Halterman appeals a 'summary judgment for Adams County Sheriff Charles Padgett. He presents two issues for our review:

1. Whether the trial court abused its discretion when it denied Halter-man’s motion to strike Dr. Bev House’s affidavit; and
2. Whether the trial court erred when it granted summary judgment in favor of Sheriff Padgett.

We affirm.

FACTS AND PROCEDURAL HISTORY

Between March 19, 2009, and April 10, 2009, Halterman was incarcerated in the Adams County Jail. On April 4, he submitted a medical request form concerning boils on his buttock. On April 6, a nurse practitioner examined Halterman and determined he had a “small raised area, with some redness extending approximately 1 cm from the raised area. There was no drainage[.]” (App. at 99.)

Halterman submitted another medical request form on April 8, and the nurse practitioner examined him the same day. She referred Halterman to Adams Memorial Hospital for “outpatient surgery for incision and drainage of his right buttocks abscess.” (Id. at 99-100.) On April 10, the nurse practitioner examined Halter-man as part of a post-hospitaí check, and sent Halterman to the emergency room, where it was discovered he had developed a Methicillin-resistant staphylococcus au-reus (MRSA) infection. Halterman ultimately underwent multiple surgeries, including a colostomy.

■ On September 22, 2010,' Halterman filed suit against the Defendants and Sheriff Padgett, claiming negligence in the treatment of his abscess. Defendants and Sheriff Padgett moved for summary judgment. Halterman filed a Motion to Strike the Affidavit of Dr. Bev House, and Defendants and Sheriff Padgett filed a Motion to Strike a portion of Halterman’s designated evidence.

The trial court denied Halterman’s Motion to Strike, granted Defendants’ and Sheriff Padgett’s Motion to Strike, and granted summary judgment for all Defendants except Sheriff Padgett. The trial court later granted summary judgment for Sheriff Padgett.

DISCUSSION AND DECISION

1. Motion to Strike

We review for an abuse of discretion a trial court’s decision on a motion to strike. Kroger Co. v. Plonski, 930 N.E.2d 1, 5 (Ind.2010). We will reverse only when the decision is clearly against the logic and effect of the facts and circumstances. Id. Halterman argues Dr. House’s affidavit should have been stricken because it was based on insufficient evidence and the conclusions therein were speculative and based on inadmissible evidence. We disagree.

“Affidavits submitted in support of or in opposition to a motion for summary judgment may be stricken for a variety of reasons. But a difference of opinion is not to be one of them.” Id. An expert witness must have sufficient facts or data on which to form an opinion. Burp v. State, 612 N.E.2d 169, 172 (Ind.Ct.App. 1993). For an expert opinion to be admissible, the expert must be qualified and “the scientific principles upon which the expert testimony rests [must be] reliable” as determined by the trial court. Indiana Rule of Evidence 702. Experts may testify to opinions based on inadmissible evidence if it is of the type reasonably relied on by experts in the field. Bunch v. Tiwari, 711 N.E.2d 844, 848 (Ind.Ct.App.1999).‘ An expert witness “need not base her opinion on personal knowledge if the opinion is based on evidence of a type normally found reliable and customarily relied upon by others in the witness’s profession or area of expertise.” Id. at 849.

Dr. House stated in his affidavit he reviewed Halterman’s complaint for damages; the Adams County Jail records, which included all of Halterman’s requests for medical treatment, not just those related to the instant case; the Adams County Hospital Records; the nurse practitioner’s records and deposition; and Halterman’s deposition. An expert’s affidavit may be based on medical records and the depositions of the parties. Id. at 848-49. Dr. House relied on the kinds of designated evidence we determined in Bunch was appropriate in the medical field, and therefore the trial court did not abuse its discretion when it denied Halterman’s motion to strike Dr. House’s affidavit.

2. Summary Judgment

The standard of review of a summary judgment is the same as that used in the trial court: summary judgment is appropriate only where there is no genuine issue of material fact and the.moving party is entitled to judgment as a matter of law. Lean v. Reed, 876 N.E.2d 1104, 1107 (Ind. 2007). In determining whether summary judgment is appropriate, we construe all facts and reasonable inferences in favor of the nonmoving party. Jackson v. Scheible, 902 N.E.2d 807, 809 (Ind.2009). Our review is limited to those materials designated to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind.2001). We must carefully review a decision on summary judgment to ensure a party is not improperly denied its day in court. Id. at 974. We affirm summary judgment on any legal basis supported by the designated evidence. Cincinnati Ins. Co. v. Davis, 860 N.E.2d 915, 922 (Ind.Ct.App.2007). The appellant bears the burden of persuading us summary judgment was erroneous. Id.

To prevail on a claim of negligence, a plaintiff must demonstrate: “(1) duty owed to plaintiff by defendant; (2) breach of duty by allowing conduct to fall below the applicable standard of care; and (3) compensable injury proximately caused by defendant’s breach of duty.” Williams v. Cingular Wireless, 809 N.E.2d 473, 476 (Ind.Ct.App.2004), trans. denied. Summary judgment is appropriate in a negligence action where defendant demonstrates “that the undisputed material facts negate at least one element of plaintiffs claim.” Jacques v. Allied Bldg. Servs. of Ind., Inc., 717 N.E.2d 606, 608 (Ind.Ct. App.1999).

Causation may not be inferred merely from the allegation of a negligent act. Midwest Commerce Banking Co. v. Livings, 608 N.E.2d 1010, 1013 (Ind.Ct. App.1993). To prove causation, a plaintiff must present specific facts that would demonstrate the defendant’s allegedly negligent behavior caused the plaintiffs injuries. Id. If the defendant establishes the lack of that causation, summary judgment is appropriate. Id.

In granting summary judgment in favor of Sheriff Padgett, the trial court found Halterman had not demonstrated any action by Sheriff Padgett caused the MRSA infection he suffered as a result of the abscess. Halterman argues summary judgment was improper because genuine issues of material fact regarding the element of breach of duty and causation remain, including the date Bates first examined Halterman, the date Halterman first reported his condition, and the size of Hal-terman’s abscess.

In deciding the Defendants’ actions did not cause Halterman’s injuries, the trial court found:

[E]ven assuming arguendo that Halter-man could create an issue of fact as to any supposed breach, Halterman cannot carry his burden on the element of “causation”. [sic] The Defendants have designated the Affidavit of Bev. P. House MD. Dr. House has opined:
MRSA is spread through direct skin-to-skin contact. Mr. Halterman’s MRSA infection was not caused by any condition of the Adams County Jail; meaning, contrary to Mr. Halter-man’s belief as stated during his deposition testimony that the Adams County Jail was “dirty”, [sic] that was not the cause of Mr. Halterman’s MRSA abscess, MRSA infection and the subsequent treatment that that condition required, specifically the hospitalizations(s) and the surgical procedures, which included performance of a colostomy.
It cannot be stated with any degree of medical certainty that the outcome for Mr. Halterman would have been different if he had been examined at any time between Alicia Bates, NP’s examinations of April 6, 2009 and April 8, 2009 at 11:20am. [sic] It would be pure speculation to state that any treatment rendered to Mr. Halterman between April 6, 2009 and that rendered on April 8, 2009 would have prevented the development of the MRSA abscess, MRSA infection and the progression of that condition which later required surgical intervention and treatment, including performance of a colostomy.
(House Affidavit, ¶¶ 14 and 15).
In short, Halterman cannot establish that any act of the Defendants caused his condition (the MRSA abscess/MRSA infection) or the injuries he suffered from the MRSA abscess/MRSA infection. The defendants have affirmatively designated evidence showing lack of causation.
Halterman cannot prove “causation.” [sic] Absent factual evidence designated to the trial court, negligence cannot be inferred from the mere fact of an injury and summary judgment must be granted in favor of the Defendants where there is an absence of evidence.

(App. at 10-11.)

We agree with the trial court. Halter-man has not directed us to any designated evidence that would permit an inference that his injuries were caused by Sheriff Padgett. In his response to Defendants and Sheriff Padgett’s motion for summary judgment, he alleged the “dirty condition at the jail” (id. at 183), caused his MRSA infection, but did not indicate how the allegedly unclean conditions did so. In addition, he did not designate any evidence indicating earlier medical intervention or a different treatment strategy would have changed the outcome of his situation. Summary judgment for the Sheriff Pad-gett was appropriate because Halterman was unable to make out a prima facie case for negligence, ie., Sheriff Padgett has successfully negated the required causation showing.

CONCLUSION

The trial court did not abuse its discretion when it denied Halterman’s motion to strike the affidavit of Dr. House, and Sheriff Padgett was entitled to summary judgment because Halterman could not show any action or lack thereof by Sheriff Pad-gett caused Halterman’s injury. Accordingly, we affirm.

Affirmed.

BAKER, J., and MATHIAS, J., concur.

      . Halterman does not appeal the grant of summary judgment in favor of the Adams County Board of Commissioners, Adams County Sheriff’s Department, and the Adams County Jail. However, a party of record at the trial court is a party on appeal, and therefore, these parties are included when referencing “Defendants” in this opinion.


author: BARNES, Judge.

text:
    Kevin C. STONE, Appellant, v. Jennifer M. STONE, Appellee.
    No. 49A02-1210-DR-820.
    Court of Appeals of Indiana.
    July 28, 2013.

      Amy 0. Carson, Ashley Balicki, Mitchell & Associates, Indianapolis, IN, for Appellant.
    Jordyn Katzman McAfee, Katzman & Katzman, P.C., Indianapolis, IN, for Ap-pellee.
   OPINION

BARNES, Judge.

Case Summary

Kevin Stone (“Father”) appeals the trial court’s award of primary physical and sole legal custody of his daughter, M.S., to his ex-wife, Jennifer Stone (“Mother”), as well as the award of attorney fees to Mother. We affirm in part, reverse in part, and remand.

Issues

The issues we address are:

I. whether the trial court erred in refusing to adopt the parties’ mediated settlement agreement regarding custody of M.S. and allowing Mother to argue against the propriety of that agreement;
II. whether the trial court erred in denying Father’s motion to continue the final hearing regarding custody ofM.S.; and
III. whether the trial court’s attorney fees order is contrary to the parties’ settlement agreement.

Facts

Mother and Father were married in 1998 and had one child during the marriage, M.S., who was born in 2000. On October 18, 2011, Mother filed a dissolution petition. The trial court never held a preliminary hearing on the matter, based on the parties’ representation that they were going to participate in mediation to resolve matters of property distribution and child support and custody. The parties did participate in mediation on December 22, 2011. As a result of that mediation the parties executed a marital settlement agreement. Among other provisions, Mother was granted possession of the marital residence. As for M.S., the parties agreed to joint legal and physical custody of her, with automatic review of the custody situation to occur in one year, and with Father paying child support to Mother. The agreement also specified how custody was to be split between the parties on an ongoing basis and how fall, winter, and spring school breaks would be divided. App. p. 183. On January 4, 2012, the trial court agreed to adopt the settlement agreement as a preliminary order on matters of child custody and support, until the parties completed a mandatory Children Cope with Divorce (“CCWD”) class and until entry of a final dissolution decree.

Meanwhile, on Christmas Day, 2011, Father entered the marital residence uninvited after he had picked M.S. up to spend time with her. He pushed Mother into the house, shut the door and stood in front of it, and yelled at her and called her names. Mother told Father that he needed to leave because he had agreed that the marital residence would be hers, but he refused to do so. Mother tried to call 911 three times, although she was unable to do so the first two times because Father took her phone away and threw it into another room. M.S. witnessed the disturbance, and Mother .was afraid that Father was going “to take me out now. This is it.” Tr. p. 34. Eventually, Father left as police arrived; he was not arrested.

On December 27, 2011, Mother filed for an order of protection against Father. A temporary ex parte protective order was entered that day and the matter set for hearing. On January 25, 2012, the parties executed an agreed entry for Mother to dismiss the protective order in exchange for Father’s promise not to threaten, stalk, or commit acts of violence against Mother, or to communicate with Mother except with respect to discussing M.S.’s care, and to stay away from the marital residence and Mother’s place of employment.

Aside from the Christmas Day incident, there was other evidence that Father was not coping well with the divorce. On more than one occasion, Father entered the marital residence alone and tore up marital photos and placed the pieces on Mother’s pillow, or cut himself out of a family photo and put the photo back in the frame. The week of Thanksgiving 2011, Father sent a lengthy email to Mother’s mother and sister, revealing his anger over the divorce and- complaining that “you and your family have contributed to the end of my marriage.... I will never forgive you!” Ex. 5. In March 201-2, Father sent an email to M.S.’s teacher and all the parents of M.S.’s classmates about Mother, saying “I would like to expose someone for the fraud, liar and thief that she is.” Ex. 7. Father also wrote a letter to five of Mother’s neighbors, again calling her a “fraud, liar and thief and angrily denouncing her.” Ex. 6. Father also has communicated with Mother by text, email, or letter by addressing her as “Thief” or “The Parent of [M.S.].” Tr. p. 46. Father also was uncooperative in communicating with Mother about M.S., including blocking Mother’s calls from his and M.S.’s cell phones, insisting on communicating with Mother through M.S. and not directly, demanding that any emails to him contain a certain subject line or he would delete them without reading them, and making unilateral changes in parenting time.

On February 8, 2012, Mother requested that the trial court approve the mediated settlement agreement as the parties’ final dissolution decree. On February 13, 2012, the trial court refused to approve the agreement, stating that it would not do so “without explanation as to how the proposed ... plan is in the child’s best interest.” App. p. 4. However, the trial court did not schedule a hearing to address this issue. On March 28, 2012, Mother filed a motion stating, in part, that “[e]vents that have occurred since the parties entered into the Mediated Settlement Agreement, caused by the fault of [Father], have put [Mother] in a position that she cannot state that the proposed parenting 'time is in [M.S.] ’s best interest.” Id. at '214. The motion sought an order compelling Father to complete the CCWD class and to set a hearing “to establish [Father]’s parenting time only,” while requesting that the property division parts of the settlement agreement be given effect. Id. On April 11, 2012, Father filed a “Request to Set a Hearing to Address [Father]’s Request to Set Aside the Mediated Agreement of Settlement.” Id. at 217. In essence, this motion sought to set aside the entirety of the settlement agreement and also noted that Father had completed the CCWD class.

Pursuant to Mother’s motion, - the trial court set a two-hour hearing for May 21, 2012. On May 15, 2012, Father filed a motion to continue the hearing, requesting more time to prepare to address the issue of “determining if the previously agreed upon joint physical custody arrangement is in the best interest of the minor child.” Id. at 220. The trial court denied the request. Mother was represented by counsel at this hearing, and Father was not. Only Mother was able to testify at this hearing before the trial .court ran out of time, and it continued the hearing to July 11, 2012.

At the conclusion of this hearing, after receiving the evidence described above regarding Father’s behavior, the trial court stated in part: “everything I’ve heard today leads me to believe you do need a mental health evaluation. You will not go wrong voluntarily getting one.” Tr. p. 106. The trial court also strongly advised Father to retain an attorney, “for [M.S.] ’s sake....” Id. at 103. On June 6, 2012, the trial court referred Father to receive a mental health evaluation through the Marion County Family Court Project (“MCFCP”). However, Father was not notified of the referral at this time.

Father hired an attorney on June 4, 2012. On June 15, 2012, the attorney notified Father that she would be withdrawing her appearance, due to a conflict of interest. On June 20, 2012, Father moved for a continuance of the July 11 hearing in order to obtain new counsel. On June 21, 2012, Mother filed a petition for sole legal custody of M.S., requesting that the issue be heard at the July 11 hearing. On June 25, 2012, the trial court held a pretrial conference, at which time Father learned for the first time about the mental health evaluation referral. The trial court also granted Father’s counsel permission to withdraw on that date and also denied Father’s continuance request.

On June 26, 2012, Father filed a second continuance request, reiterating that he needed time to hire a new attorney, and also claiming that he had to be out-of-town on business on July 11, 2012. The trial court denied this request. On that same day, Father filed his own request for sole legal custody. On June 28, 2012, Father contacted the MCFCP office to schedule his mental health evaluation; it eventually was scheduled for July 16, 2012. Father retained a new attorney on July 2, 2012. This attorney filed another continuance motion, stating that she needed additional time to prepare for the hearing and further noting that it would not be possible for Father to complete the mental health evaluation before the hearing' date, “and the results of that evaluation will likely assist the Court with making custody and parenting time orders.” App. p. 237. This motion requested the hearing be continued until August 2012; the trial court denied it.

The hearing went ahead as scheduled on July 11, 2012. Mother testified that Father’s communication regarding M.S. had not improved since the last hearing. At the conclusion of the hearing, the trial court gave the parties until August 10, 2012, to submit proposed orders. The trial court and the parties also discussed the fact that Father was scheduled to undergo his mental health evaluation in five days. The trial court said, “If you want me to [consider the evaluation report], I’ll be glad to. If you want to wait to see what it says, that’s fine.” Tr. p. 434. After discussion of whether the evaluation report would be confidential, the trial court concluded, “I’ll show it under advisement pending submission of that additional information and the proposed orders.” Id. at 439.

On August 15, 2012, the trial court entered its final decree of dissolution. It approved and incorporated as part of the decree all the provisions in the settlement agreement dealing with property distribution. The trial court specifically found, “no evidence has been presented that shows unfairness, unreasonableness, manifests [sic] inequity, or shows that execution of the Mediated Agreement was procured through fraud, misrepresentation, coercion, duress, or lack of full disclosure.” App. p. 13.

Included in the agreement approved and incorporated by the trial court was a provision requiring Father to pay one-half of Mother’s attorney fees incurred through December 22, 2011, and further stating, “Each party shall be responsible for the payment of his or her own attorney’s fees incurred after December 22, 2011.” Id. at 24. The trial court did not approve of the settlement agreement’s child custody provisions. Instead, it awarded Mother primary physical and sole legal, custody of M.S. As for Father’s visitation, the trial court required it to be supervised and allowed much less than what is recommended by the Indiana Parenting Time Guidelines. . The trial court specifically found in. part that Father had been exhibiting “irrational behavior” since the beginning of the divorce proceedings and that “Father’s mental instability is clearly significant as it could continue to harm [M.S.] ’s emotional development.” Id. at 14. The trial court ordered that Father complete his mental health evaluation and “follow the therapist’s recommendations with regard to treatment.” Id The dissolution decree further required Father to pay $5,000 toward Mother’s attorney fees, due to his behavior and disparate earning ability.

On August 17, 2012, the MCFCP office filed with the trial court its report of Father’s mental health evaluation. The psychologist who examined him reported in part:

In light of the psychological test data, clinical observation and social history, it would appear that Mr. Stone is relatively stable and appropriate in his overall psychological maladjustment[] and does not present with any significant psychological difficulties. Statements cannot be made about the nature of the relationship he has with his daughter, ... although it is assumed on the basis of this evaluation that the probability of it being satisfactory is good.

Id. at 272. The psychologist did not recommend that Father undergo any treatment.

On September 13, 2012, Father filed a motion to correct error and for a new trial, followed by another such motion on September 14, 2012. The motion alleged in part that the trial court erred in awarding primary physical and sole legal custody of M.S. to Mother without considering his mental health evaluation. On September 24, 2012, the trial court denied the motions without explanation. Father initiated this appeal. Afterwards, on March 28, 2013, the trial court approved a mediated agreement filed by the parties that granted unsupervised visitation to Father in accordance with the Indiana Parenting Time Guidelines. The agreement also indicated that the parties had agreed that future matters in the case be resolved by a different trial judge than had issued the original dissolution decree.

Analysis

The trial court here entered findings sua sponte. In such a situation, the specific factual findings control only the issues that they cover, while a general judgment standard applies to issues upon which there are no findings. C.B. v. B.W., 985 N.E.2d 340, 344 (Ind.Ct.App.2013), trans. denied. It is not necessary that each and every finding be correct, and even if one or more findings are clearly erroneous, we may affirm the judgment if it is supported by other findings or is otherwise supported by the record. Id. We may affirm a general judgment with sua sponte findings upon any legal theory supported by the evidence introduced at trial. Id. Although sua sponte findings control as to the issues upon which the court has found, they do not otherwise affect our general judgment standard of review, and we may look both to other findings and beyond the findings to the evidence of record to determine if the result is against the facts and circumstances before the court. Id.

As for review of the accuracy of findings that have been entered, we first consider whether the evidence supports them. Id. Second, we consider whether the findings support the judgment. Id. We will disregard a finding only if it is clearly erroneous, which means the record contains no facts to support it either directly or by inference. Id. A judgment also is clearly erroneous if it relies on an incorrect legal standard, and we do not defer to a trial court’s legal conclusions. Id. However, we must give due regard to the trial court’s ability to assess the credibility of witnesses and will not reweigh the evidence, and must consider only .the evidence most favorable to the judgment along with all reasonable inferences drawn in favor of the judgment. Id.

We also note that we “give considerable deference to the findings of the trial court in family law matters.... ” MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind.2005). Whether reviewing a ease for “clear error” or “abuse of discretion,” this appellate deference is, first and foremost, a reflection that the trial court is in the best position to judge the facts, ascertain family dynamics, and judge witness credibility and the like. Id. at 940-41. “Secondly, appeals that change the results below are especially disruptive in the family law setting.” Id. at 940. “But to the extent a ruling is based on an error of law or is not supported by the evidence, it is reversible, and the trial court has no discretion to reach the wrong result.” Id. at 941.

I. Settlement Agreement as to Custody

Father first argues that the trial court erred in refusing to enforce the parties’ mediated settlement agreement providing for joint physical and legal custody of M.S., and in permitting Mother to effectively repudiate the agreement on that point by requesting primary physical and sole legal custody of M.S. “To promote the amicable settlements of disputes,” parties in a dissolution action may enter written agreements that include provisions for child support and custody. Ind.Code § 31 — 15—2—17(a). By statute, trial courts are not required to accept such agreements, and they may enter their own orders regarding dissolution matters, including child support and custody. I.C. § 31-15 — 2—17(b). Additionally, parties to a written settlement agreement may jointly request that a trial court enter a summary dissolution decree based upon the settlement without holding a final hearing. I.C. § 31 — 15—2—13. However, the statute provides that a trial court “may” enter such a decree; it is not required to do so upon the parties’ request. Id.

There áre a number of cases addressing the extent to which trial courts must accept, and parties may be allowed to repudiate, settlement agreements regarding child custody. In Keen v. Keen, 629 N.E.2d 938 (Ind.Ct.App.1994), we addressed a situation in which a trial court refused to approve and modified the parties’ settlement agreement regarding child custody and parenting time, based on the opinion of a guardian ad litem (“GAL”). We reversed, based on a technicality related to the GAL, and remanded for the trial court to conduct a custody hearing. In doing so, we rejected the father’s argument that the trial court was bound to accept the parties’ child custody agreement as is, holding that “no agreement between parties that affects the custody of a child is automatically binding, upon the trial court.” Keen, 629 N.E.2d at 940. We observed that the wishes of the parents are only one factor out of several for a trial court to consider when making a custody determination. Id. (citing I.C. § 31-1-11.5-21(a)(2) (1994), now codified as I.C. § 31-17-2-8). We also noted that “the best interests of the child are the primary consideration” when child custody or visitation rights are concerned and, therefore, “both custody and visitation conflicts are left to the trial court to resolve.” Id. Acknowledging that a child custody agreement generally should be given “great weight,” in light of parental constitutional rights to raise their children, we noted several instances in which a trial court should not defer to such an agreement as being in the best interests of a child. Id. Such circumstances include when there is evidence that an agreement might endanger a child’s physical health or significantly impair his or her emotional development, or when the agreement is ambiguous, unworkable, and likely to demand further litigation. Id.

In Voigt v. Voigt, 670 N.E.2d 1271 (Ind. 1996), our supreme court addressed the circumstances in which a trial court should be permitted to reject or modify a dissolution settlement agreement; the particular settlement agreement provision at issue in the case involved spousal maintenance. The court held as a general rule that “the power to disapprove a settlement agreement must be exercised with great restraint.” Voigt, 670 N.E.2d at 1277. Furthermore, “[i]n reviewing a settlement agreement, a court should concern itself only with fraud, duress, and other imperfections of consent, ... or with manifest inequities, particularly those deriving from great disparities in bargaining power.” Id. at 1278. However, the court also pointedly stated, “Of course ... the same principles and standards cannot apply to child custody and support provisions of proffered settlement agreements.... If there is one overriding policy concern in dissolution actions, it is protecting the welfare and interests of children.” Id. at 1278 n. 10.

In In re Paternity of KJ.L., 725 N.E.2d 155 (Ind.Ct.App.2000), a mother in a paternity action repudiated a previous stipulation as to child custody that she had agreed to under oath during a court hearing, prior to the court receiving any evidence regarding custody or the best interests of the child. The trial court refused to accept the mother’s repudiation and adopted the stipulation as its final custody ruling. Citing Keen and Voigt, among other cases, we held that the trial court erred in not holding a hearing and in adopting the stipulation after the mother had repudiated it. K.J.L., 725 N.E.2d at 159. We stated that although “the courts of this state have always encouraged parties to enter into agreements settling their own affairs, agreements pertaining to the support and custody of children are of a different character and will not be deemed effective unless, and until, they are approved by the court.” Id.

In Beaman v. Beaman, 844 N.E.2d 525 (Ind.Ct.App.2006), a trial court accepted a proffered settlement agreement as to child custody, but there was no indication in the record that the trial court had ever considered whether the agreement was in the child’s best interests, even though it had conducted two dissolution-related hearings. Relying on Voigt, Keen, and K.J.L., we stated, “Although courts should give great weight to the wishes of the parents, it is the duty of the trial court to determine if any agreement is in the best interests of the child.” Beaman, 844 N.E.2d at 532. “A trial court cannot ‘rubber-stamp’ such an agreement.” Id. at 583. We noted that on its face, the child custody agreement contained at least one “unorthodox” provision that seemingly had the potential to be unworkable and lead to future litigation. Id. We remanded for the trial court to conduct an “examination” of the custody agreement. Id.

Reno v. Haler, 734 N.E.2d 1095 (Ind.Ct. App.2000), aff'd on reh’g, 743 N.E.2d 1139 (Ind.Ct.App.2001), trans. denied, seems to represent a slightly different approach to child custody settlement agreements, one that requires more trial court deference to such agreements. In that case, the parties participated in mediation and reached various agreements, including as to child custody, and both husband and wife signed handwritten notes of the meeting. However, the wife refused to sign the full agreement after it was printed out and presented for her signature. The wife subsequently told the trial court that she had repudiated the agreement, but the trial court rejected her repudiation and approved the mediated settlement in full as the final dissolution decree, including its child custody provision. This court affirmed. First, although the trial court made no express finding that the custody agreement was in the child’s best interests, it did state that the agreement was “fair, reasonable and proper,” which the court held sufficient to establish that the trial court had found the agreement to be in the child’s best interests. Reno, 734 N.E.2d at 1100.

Second, the court concluded that the trial court properly refused to permit the wife to repudiate the mediated settlement. The court distinguished K.J.L. on the basis that KJ.L. concerned a non-mediated oral settlement agreement (although one given under oath during a court hearing), while the case it was deciding concerned a mediated written settlement (although the wife refused to sign the final printed agreement). Id. at 1100-01. Also, the Reno court held that a trial court should uphold a written agreement concerning child custody unless a party is able to establish the existence of ‘ “some unfairness, unreasonableness, manifest inequity in the terms of the agreement, or that the execution of the agreement was procured through fraud, misrepresentation, coercion, duress, or lack of full disclosure.” ’ Id. at 1101 (quoting Gabriel v. Gabriel, 654 N.E.2d 894, 898 (Ind.Ct.App.1995), trans. denied). Although Gabriel solely concerned a property settlement agreement, the Reno court stated, “We believe the same is applicable to settlement agreements involving child custody and visitation.” Id. Reno’s holding was followed in two other eases from this court. See In re Paternity of K.R.H., 784 N.E.2d 985, 989 (Ind.Ct.App.2003); Carrasco v. Grubb, 824 N.E.2d 705, 711 (Ind.Ct.App.2005), trans. denied.

Reno, K.R.H., and Carrasco did not discuss or cite Voigt. Thus, there was no acknowledgment in those cases of our supreme court’s clear statement that while dissolution settlement agreements dealing with property and maintenance issues generally should be upheld unless there is Gabriel-type evidence of fraud, coercion, or manifest inequity, a different standard applies altogether to custody agreements. Namely, the “overriding policy concern” is the best interests of the child or children. Voigt, 670 N.E.2d at 1278 n. 10.

It is unclear to us that a parent should be forbidden, before a mediated settlement agreement regarding child custody is approved and made effective by a trial court, from alerting a trial court to his or her concerns about the agreement and whether it is truly in the child’s best interests. If a party is having second thoughts about the propriety of a child custody agreement, we do not see why a trial court should be prohibited from taking such reluctance into consideration when deciding how thoroughly to examine whether the agreement suits the child’s best interests, which is the “overriding” concern in any dissolution where children are involved — a concern that trumps the interest in promoting the settlement of disputes. In the present case, regardless of whether Mother repudiated the settlement agreement, the trial court clearly and properly indicated before repudiation that it was not going to approve the agreement without some explanation as to how the agreement was in M.S.’s best interests. And at the subsequent hearings to address M.S.’s best interests, we do not believe Mother should have been prevented from presenting all relevant evidence on that issue, even if that evidence indicated that the settlement agreement was not in M.S.’s best interests and even if, as the trial court found, there was no evidence of fraud or coercion in the procurement of the settlement agreement. We see nothing improper in the manner in which the trial court proceeded.

We also note Father argues in part that Mother should not be permitted to repudiate the settlement agreement because he voluntarily gave up his interest in the marital residence “in exchange for exercising joint legal and physical custody of the parties’ child.” Appellant’s Br. p. 27. He further states, “It is not unusual for parties to give up his or her portion of a marital estate in exchange for more parenting time with a child.” Id. We submit that this is precisely one reason why courts must independently evaluate agreements on child custody, to ensure that a child was not used as a bargaining chip by one party, within the often acrimonious atmosphere of a divorce proceeding, to extract more marital property from the other party regardless of whether the resulting child custody arrangement would be in the child’s best interests. Parents should neither be able to “buy” more parenting time, nor have it withheld for being reluctant to give up marital property, without regard to a child’s best interests. As our supreme court very recently stated, “Every child deserves better than to be treated as nothing more than a bargaining chip.” Perkinson v. Perkinson, 989 N.E.2d 758, 765 (Ind.2013). We also believe that even if a trial court does not accept the child custody provisions of a settlement agreement, that is no reason for it to reject provisions with respect to property division, contrary to Father’s suggestion. In sum, the trial court did not err in refusing to approve the settlement agreement with respect to child custody without evidence and argument as to whether it was in M.S.’s best interests.

II. Denial of Continuance

Next, we address Father’s contention that the trial court abused its discretion in denying his three continuance motions filed in advance of the July 11, 2012 hearing. We will reverse a trial court’s denial of a continuance motion only for an abuse of discretion. F.M. v. N.B., 979 N.E.2d 1036, 1039 (Ind.Ct.App.2012). Generally, an abuse of discretion occurs if a ruling is clearly against the logic and effect of the facts before the court or the reasonable and probable deductions that may be drawn from the facts. Id. Additionally, an abuse of discretion may occur in the denial of a continuance motion if the moving party showed good cause for granting the motion. Id. Furthermore, in order to establish an abuse of discretion in the denial of a continuance, it must be demonstrated that the moving party was prejudiced by the denial. Id. Other factors to consider include whether the record demonstrates dilatory tactics on the part of the movant designed to delay coming to trial, and whether a delay would have prejudiced the opposing party to an extent sufficient to justify denial of the continuance. Id. at 1041.

Father argues the trial court abused its discretion in denying the continuance motions based both on his efforts to obtain counsel before the hearing and the short period of time his second attorney had to prepare, and on the mental health evaluation that would not take place until after the hearing. We find an abuse of discretion as it relates to the mental health evaluation, which was only raised in the third continuance motion, and we need not address the arguments related to counsel.

It is undisputed that Father did not learn of the mental health evaluation referral until June 25, 2012. Father thereafter acted expeditiously in scheduling that evaluation, but it was still not set to take place until after the July 11, 2012 hearing. As reflected in the trial court’s findings, its concern over Father’s mental health clearly was one of the primary motivating factors behind its decision to reject the settlement agreement regarding custody and to severely restrict Father’s parenting time. The findings regarding Father’s mental health were not supported by any expert testimony, and the results of the mental health evaluation flatly contradict those findings. Mother has not demonstrated that a continuance would have prejudiced her. We accept that continuances in eases involving children should not be granted as a matter of routine, but a short delay in order to allow the collection and presentation of highly relevant evidence before issuing a final ruling regarding custody would have been appropriate. The trial court itself indicated at the July 11, 2012 hearing that it would delay final ruling in the case until it had received “additional information,” i.e. apparently the results of the mental health evaluation, but in fact it did not wait for that information. Tr. p. 489

We also note that Father gambled regarding the results of the mental health evaluation. If the continuance had been granted but the results of the evaluation were unfavorable to him, he would have been harmed by the granting of the motion. In other words, it is not as if Father only claimed error with respect to the mental health evaluation after learning that its results favored him. We conclude that Father demonstrated good cause for continuing the July 11, 2012 hearing, that he was not dilatory, that Mother would not have been prejudiced by the granting of a continuance, and that Father clearly was prejudiced by its denial. Thus, the trial court abused its discretion in denying Father’s third continuance motion.

We note that Father does not challenge the trial court’s general finding that the settlement agreement was not procured by fraud, coercion, or other imperfections of consent, and thus approving the property division portions of the agreement. Although Father seems to argue that disapproval of the child custody portion of the agreement required disapproval of its property division provisions, we have rejected that argument. Father makes no other substantive argument that the trial court erred in accepting the parties’ division of property, nor does he argue that the granting of a continuance was necessary to allow him to address that issue before the trial court. Thus, we reverse and remand for the trial court to conduct a new hearing and issue a new ruling only with respect to child custody, under the standard for original child custody orders and not modifications; the trial court should give great, but not binding weight to the parties’ mediated settlement agreement, as described above. In the interests of M.S.’s stability, the current child custody order should remain in effect until the trial court issues a new ruling.

III. Attorney Fees

The final issue we address is whether the trial court erred in ordering Father to pay $5,000 toward Mother’s attorney fees. This award was based upon an attorney fee affidavit outlining Mother’s legal expenses incurred between December 22, 2011, and July 4, 2012. Father argues this order is irreconcilable with the trial court’s approval of that portion of their settlement agreement providing, “Each party shall be responsible for the payment of his or her own attorney’s fees incurred after December 22, 2011.”' App. p. 24.

Mother contends .Father is precluded from making this argument on appeal because he did not include it as a ground of alleged error in either of his motions to correct error. We disagree. Indiana Trial Rule 59(A) only mandates motions to correct error as a prerequisite to appeal when a party claims newly discovered evidence or that a jury verdict is excessive or inadequate. Father’s argument regarding attorney fees does not fall within either of these categories. When a party files a motion to correct error, he or she is not precluded from raising issues on appeal that were not included in the motion, unless it was an issue required to be included by Trial Rule 59(A). See Franciose v. Jones, 907 N.E.2d 139, 144 (Ind.Ct. App.2009), aff'd on reh’g, 910 N.E.2d 862 (Ind.Ct.App.2009), trans. denied. We will address Father's argument on the merits;

Mother contends the trial court had discretion to award attorney fees based upon Indiana Code Section 31-15-10-1, which generally permits a court to “order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this article and for attorney’s fees and mediation services .... ” Mother, however, does not respond substantively to Father’s argument that the settlement agreement was binding upon the parties and trial court once it approved the agreement and incorporated it as part of the dissolution decree and that the agreement clearly requires each party to bear his or her own attorney fees incurred after December 22, 2011.

Dissolution settlement agreements may contain binding provisions regarding attorney fees, including allocation of fees in future disputes between the parties. Pond v. Pond, 700 N.E.2d 1130, 1136 (Ind.1998). Unless a trial court finds evidence of fraud, duress, or other imperfections of consent, such as outlined in Voigt, the court must give full force and effect to a settlement agreement’s attorney fees provisions. Id. at 1137. Again, the trial court here specifically found no evidence of fraud, duress, or imperfections of consent, a finding neither party challenges. As such, the trial court was required to give full force and effect to the agreement’s attorney fees provision. It thus erred in requiring Father to pay $5,000 toward attorney fees that Mother incurred after December 22, 2011.

Conclusion

The trial court did not err in refusing to approve the parties’ settlement agreement regarding child custody without receiving evidence regarding whether the agreement was in M.S.’s best interests, nor did it err in allowing Mother to present evidence and argue that it was not in M.S.’s best interests. We do conclude the trial court abused its discretion in denying Father’s third continuance motion and, therefore, we reverse and remand for a new hearing regarding custody of M.S. We also reverse that part of the dissolution decree ordering Father to pay $5,000 towards Mother’s attorney fees. The dissolution decree’s property division orders, as reflected in the settlement agreement, are affirmed.

Affirmed in part, reversed in part, and remanded.

NAJAM, J., and BAILEY, J., concur.

      . Although the report uses the word ''maladjustment” here, there is no finding anywhere in the report that Father suffers from any kind of mental illness.

      . Father argues on appeal that the trial court erred in ordering supervised visitation between him and M.S. Mother argued in her brief that the March 28, 2013 agreement, a file-stamped copy of which she included in her appendix, rendered this argument moot. Father did not file a reply brief arguing otherwise, and we will not address his argument regarding supervised visitation.

      . As we noted in that case, "the underlying principle behind both the paternity and dissolution statutes is the same: the best interest of the child.” K.J.L., 725 N.E.2d at 157.

      . We need not definitively resolve whether a trial court must always conduct a full eviden-tiary child custody hearing when the parties have reached a settlement agreement in order to determine whether the agreement is in the child's best interests. It suffices to say that the trial court did not err here in conducting such hearings.

      . Mother notes that the trial court told Father at the end of the May 21, 2012 hearing that he would "not go wrong voluntarily getting” a mental health evaluation and argues that he should not have waited for a court referral to schedule an evaluation. Tr. p. 106. Suggesting that Father voluntarily undergo a mental health evaluation is much different than referring him for a court-ordered evaluation, however. It is much more difficult to perceive why the trial court would deny a short continuance for Father to undergo a court-ordered evaluation, than if Father had delayed voluntarily undergoing such an examination.

      . Father also argues the trial court evidenced bias against him in various comments it made during the hearings. Because we are reversing and remanding for a new hearing, we need not address this issue. We also note that the parties' case has been transferred to a different trial judge, per their agreement, and assume' this new judge will be hearing the case upon remand. We also decline to address Father’s argument that the trial court's award of primary physical and sole legal custody to Mother was not supported by the evidence.