author: FISHER, Senior Judge.

text:
    SHELBY COUNTY ASSESSOR, Petitioner, v. CVS PHARMACY, INC. # 6637-02, Respondent.
    No. 49T10-1112-TA-96.
    Tax Court of Indiana.
    Sept. 23, 2013.
    Marilyn S. Meighen, Attorney At Law, Carmel, IN, Attorney for Petitioner.

      Paul M. Jones, Matthew J. Ehinger, Ice Miller LLP, Indianapolis, IN, Attorneys for Respondent.
   FISHER, Senior Judge.

The Shelby County Assessor challenges the Indiana Board of Tax Review’s final determination upholding the 2007 and 2008 real property assessments of CVS Pharmacy, Inc. # 6687-02 (CVS). The Court, finding the final determination proper, affirms.

RELEVANT FACTS AND PROCEDURAL HISTORY

The property that is the subject of this appeal is a general retail store and pharmacy located in Shelbyville, Indiana. The store was built in 2001 by Hook-SupeRx, Inc. (Hooks), sold upon its completion to SCP 2001A-CSF-19 LLC (SCP), and then leased back to Hooks for operation as a CVS.

The lease agreement between SCP and Hooks indicates that the lease is valid for a twenty-two year term (December 2001 through January 2024), with several renewal options available to Hooks after that. Hooks’s monthly lease payments are $27.20 per square foot. Pursuant to the terms of the lease, Hooks is responsible for the property’s annual property tax liabilities.

For the 2007 and 2008 tax years, the Assessor assessed the subject property at $2,375,600 and $2,459,700. Believing those values to be too high, CVS filed appeals with the Shelby County Property Tax Assessment Board of Appeals (PTABOA). The PTABOA affirmed the assessments. CVS subsequently filed appeals with the Indiana Board.

On April 19, 2011, the Indiana Board conducted an administrative hearing on CVS’s appeals. During the hearing, both CVS and the Assessor agreed that the income capitalization approach was the most reliable method by which to value the subject property. Accordingly, they presented competing income approach calculations with supporting documentation. While the parties’ income approach calculations were similar in many respects, they differed in one major aspect: CVS used market rents and the Assessor used contractual rent.

CVS believed that the use of the subject property’s contractual rent in the income approach was not appropriate. Indeed, through its expert witnesses, CVS stated that it typically uses sale-leaseback transactions as financing tools; consequently, the lease payments it makes to its lessors pursuant to its leases do not reflect merely the value of the real estate, but rather the broader business value of CVS itself. (See Cert. Admin. R. at 466, 472-75, 644-47 (footnote added).) To demonstrate this point, CVS presented evidence showing that twenty-four vacant CVS, Walgreens, RiteAid, and Eckerd Drug stores (nine in Indiana and fifteen throughout the country) were in the process of being marketed to “second-generation tenants” for rent at approximately $10.00 per square foot. (Cert. Admin. R. at 145, 151-56, 467-68.) Thus, explained CVS, the $10.00 per square foot figure represented the actual value of the subject property’s real estate. In turn, CVS explained that the “spread” between that figure and the subject property’s contractual rent of $27.20 per square foot represented the investor’s expected return on its investment in CVS. (See, e.g., Cert. Admin. R. at 472-74, 489, 492, 523-24, 645-47.) Based on the $10.00 per square foot rental figure, CVS claimed that the subject property’s assessment should have been only $1,250,000 for both 2007 and 2008.

In contrast, the Assessor, through her expert witness, concluded that the subject property’s contractual rent of $27.20 per square foot should be used in the income approach because it reflected “the CVS market.” (See, e.g'., Cert. Admin. R. at 586-87, 592-93, 608-11.) More specifically, the Assessor provided evidence demonstrating that five other CVS-occupied stores in Indiana also made comparable rental payments pursuant to the terms of their leases. (See Cert. Admin. R. at 367-72.) As further support for her conclusion, the Assessor pointed out that the written lease agreement for the subject property 1) stated that it was “a true lease” and not a financing vehicle, despite its “Section 467” provision; and 2) estimated the fair market value of the building as of December 31, 2001 (the lease’s start date) at $3,770,492.03. (See Cert. Admin. R. at 184, 283, 569, 575.) Relying on the $27.20 per square foot rental figure, the Assessor requested that the Indiana Board actually increase her original assessments to $3,330,000 (for 2007) and $3,470,000 (for 2008).

On November 15, 2011, the Indiana Board issued a final determination upholding the Assessor’s original assessments, explaining that it was “not convinced” that either party presented “a more credible or reliable indication of market value-in-use for the subject property than the assessments ... [originally] established for 2007 and 2008.” (Cert. Admin. R. at 81 ¶ 73.) For instance, the Indiana Board stated that while CVS had successfully shown that there was a significant difference between the subject property’s market rent (“fee simple rent”) and contractual rent (“leased fee rent”), it failed to investigate and understand why the “market” properties were vacant. (See Cert. Admin. R. at 79 ¶ 65, 80 ¶ 70.) The Indiana Board explained that this failure, in light of CVS’s admission that the reasons why the properties were vacant needed to be considered, “destroyed” the reliability of CVS’s conclusion that the $10.00 per square foot figure should be used in the income capitalization approach. (See Cert. Admin. R. at 79 ¶ 65.)

The Indiana Board also rejected the Assessor’s conclusion that the contractual rent of $27.20 per square foot should be used in the income approach because, with respect to sale-leaseback transactions, Indiana law requires “careful consideration to make sure that only the value of the real estate is assessed and not some other business or investment interest.” (Cert. Admin. R. at 73 ¶ 51 (citing Grant Cnty. Assessor v. Kerasotes Shotvplace Theatres, LLC. 955 N.E.2d 876, 882-83 (Ind. Tax Ct.2011); Ind.Code § 6-1.1-2-1 (2007) (providing that only tangible property is subject to assessment)).) As the Indiana Board explained,

[substantial evidence established that CVS regularly operates with the same (or almost the same) kind of sale-leaseback transactions and those transactions involved an investment component. [The Assessor], however, failed to establish the investment component ... was factored out of [her] value conclusion[ ] ... The [Assessor] also failed to establish how merely examining multiple versions of CVS transactions, where all the sale prices and lease payments represent more than just real property rights, legitimately proves anything about general market sales or rents.

(Cert. Admin. R. at 80 ¶ 69.)

The Assessor initiated this original tax appeal on December 27, 2011. The Court heard oral argument on August 17, 2012. Additional facts will be supplied when necessary.

STANDARD OF REVIEW

The Assessor, as the party seeking to overturn the Indiana Board’s final determination, bears the burden of demonstrating its invalidity. See Osolo Twp. Assessor v. Elkhart Maple Lane Assocs., 789 N.E.2d 109, 111 (Ind. Tax Ct.2003). Consequently, the Assessor must demonstrate to the Court that the Indiana Board’s final determination is:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) contrary to constitutional right, power, privilege, or immunity;
(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory jurisdiction, authority, or limitations;
(4) without observance of procedure required by law; or
(5) unsupported by substantial or reliable evidence.

Ind.Code § 33-26-6-6(e)(l)-(5) (2013). In determining whether a final determination of the Indiana Board is invalid, the Court •will not reweigh any evidence presented during, or reassess the credibility of any witnesses who testified at, the administrative hearing. Kerasotes, 955 N.E.2d at 880.

LAW

Indiana assesses property on the basis of its “market value-in-use.” See Ind.Code § 6-l.l-31-6(c) (2013); 2002 Real PROPERTY Assessment Manual (2004 Reprint) (Manual) (incorporated by reference at 50 Ind. Admin. Code 2.3-1-2 (2002 Supp.)) at 2; 50 Ind. Admin. Code 21-3-3(b) (2007) (see http://www.in.gov/legislative/iac/). “Market value-in-use” is defined as the value of a property “for its current use, as reflected by the utility received by the owner or a similar user, from the property.” Manual at 2.

ANALYSIS AND OPINION

On appeal, the Assessor asserts that by failing to use the contractual rent of $27.20 per square foot in the income approach, the Indiana Board has completely ignored the subject property’s utility as a fully-functioning CVS store. (See Pet’r Br. at 1-2.) In other words, the Assessor asserts that because the subject property is tailored specifically to the wants and needs of CVS, its market value-in-use can only be measured in relation to other CVS stores, not to participants in commercial/retail market generally. (See Pet’r Br. at 6, 8.) The Assessor accordingly argues that the Indiana Board’s final determination is erroneous and must be reversed.

In its final determination, the Indiana Board explained that CVS provided probative evidence demonstrating that there was a significant difference between the subject property’s market rent and contractual rent. (See Cert. Admin. R. at 79-80 ¶¶ 68, 70.) The Indiana Board noted that this difference was consistent -with CVS’s claim that it used sale-leaseback transactions to sell more than just the ownership rights in its properties; rather, it used those types of transactions as a means to generate additional business capital from investors. (See Cert. Admin. R. at 79-80 ¶¶ 68-70.) Given this evidence, the Indiana Board found that the Assessor’s use of the subject property’s contractual rent in her income approach likely was capturing more than the value of the real property (ie., the “sticks and bricks”) in her computation. (See Cert. Admin. R. at 80-81 ¶¶ 69-72.) The Indiana Board therefore concluded that it could not give the Assessor’s income approach any weight. (See Cert. Admin. R. at 81 ¶¶ 72-73.) This Court’s case law supports that conclusion. See Kemsotes, 955 N.E.2d at 882-83. See also Stinson v. Trimas Fasteners, Inc., 923 N.E.2d 496, 500-502 (Ind. Tax Ct.2010) (explaining that market value-in-use, “as determined by objectively verifiable market data, is the value of a property for its use, not the value of its use”); Meijer Stores Ltd. P’ship v. Smith, 926 N.E.2d 1134, 1137 (Ind. Tax Ct.2010) (recognizing that the market value-in-use of a property should be measured against properties with a comparable use, as opposed to properties with identical users).

CONCLUSION

In its final determination, the Indiana Board found that the Assessor’s evidence was not probative in establishing that her original assessments of the subject property were incorrect. The Assessor has, on appeal, essentially asked the Court to reweigh her evidence; the Court may not do so. See Kemsotes, 955 N.E.2d at 880. The Indiana Board’s final determination in this matter is therefore AFFIRMED.

      . The lease provides that the amount of Hooks's monthly rent gradually decreases over the term of the lease; $27.20 is therefore the "effective" monthly rental payment per square foot. (See Cert. Admin. R. at 240-45, 372.)

      . In its final determination, the Indiana Board noted that CVS was not the owner of the subject property; to the extent the Assessor did not dispute CVS's standing to file the appeal, however, the Indiana Board deemed the issue waived. (See Cert. Admin. R. at 59 n. 2.)

      . Both parties’ calculations used vacancy and expense rates of 1% each. (See Cert. Admin. R. at 145, 374.) Moreover, CVS used a capitalization rate of 8%, while the Assessor used a capitalization rate of 7.25%. (See Cert. Admin. R. at 146, 374-75.)

      . As CVS’s expert witnesses testified, CVS’s lease agreement contained a "Section 467” loan provision, indicating special financing. (See Cert. Admin. R. at 164, 653-55.) (See also Cert. Admin. R. at 372 (where the Asses- . sor’s expert witness acknowledges that because the lease provides that the monthly payments decrease over time (i.e., the "Section 467” provision), the lease is essentially a loan allowing for a more favorable amortization of payments than a standard loan).)

      . The Assessor's "real” argument on appeal is that these three Court decisions are wrong. (See, e.g., Pet'r Br. 1-2, 16-22; Pet’r Reply Br.; Oral Argument Tr. at 4-8 (alleging that through its decisions, this Court is impermis-sibly attempting to convert Indiana’s market value-in-use system into a fair market value system).) The Court does not agree with the Assessor and stands by its holdings in those cases.


source: Caselaw Access Project

license: Public Domain

text:
    INDIANA NEWSPAPERS, INC., d/b/a The Indianapolis Star, Appellant, v. Jeffrey M. MILLER, et al., Appellees.
    No. 49S02-1305-PL-311.
    Supreme Court of Indiana.
    Sept. 27, 2013.
    As Amended Oct. 3, 2013.
   AMENDED PUBLISHED ORDER

By an order on May 2, 2013, this Court granted a petition seeking transfer of jurisdiction from the Court of Appeals and allowed the filing of appellate briefs. Since then, the Appellant and Appellees have filed their briefs and appendices with this Court, and a transcript of trial court proceedings has been submitted. After further review, including consideration of points presented by counsel in their appellate briefs and at oral argument, and after discussion among the Justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this appeal. Accordingly, the order granting transfer is VACATED, and transfer is hereby DENIED. The decision of the Court of Appeals, Indiana Newspapers, Inc. v. Miller, 980 N.E.2d 852 (Ind.Ct.App.2012), ajfd on reh’g (Ind. Ct.App.2013) (“Miller II”), is hereby REINSTATED as Court of Appeals authority. Pursuant to Appellate Rule 58(B), this appeal is at an end.

Previously, the Court of Appeals in In re Indiana Newspapers Inc., 963 N.E.2d 534 (Ind.Ct.App.2012) (“Miller 7”) addressed the merits of the issues before it but did not address jurisdiction. Because transfer was not sought from Miller I, it became final as to all matters directly addressed. After the trial court applied the holding in Miller I, the Appellant again appealed, but the Court of Appeals in Miller II held it did not have jurisdiction to address the Appellant’s appellate claims. The decision in Miller II does not undermine the merits determination of Miller I or diminish its precedential value.

The Court DIRECTS the Clerk to certify this appeal as final and to send copies of this order to the Hon. Margret G. Robb, Chief Judge of the Court of Appeals; the Court of Appeals Administrator; and all counsel of record.

The Court DIRECTS the Clerk of this Court to post a copy of this Amended Order to the Court’s website, and DIRECTS Thomson/Reuters to replace the previous order issued on September 27, 2013, with this Amended Order and to publish this Amended Order in the bound volumes of this Court’s decisions. ■

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

RUSH, J., dissents from the denial of transfer.


author: CRONE, Judge.

text:
    ROLLETT FAMILY FARMS, LLC, Appellant-Plaintiff, v. AREA PLAN COMMISSION OF EVANSVILLE-VANDERBURGH COUNTY, Vanderburgh County Board of Commissioners, and Vanderburgh County Recorder, Appellees-Defendants.
    No. 82A01-1301-PL-43.
    Court of Appeals of Indiana.
    Aug. 13, 2013.
    James D. Johnson, Lauren E. Dimmitt, Rudolph, Fine, Porter & Johnson, LLP, Evansville, IN, Attorneys for Appellant.
    Dirck H. Stahl, Ziemer, Stayman, Weit-zel & Shoulders, LLP, Evansville, IN, Attorney for Appellee Area Plan Commission of Evansville-Vanderburgh County.
   OPINION

CRONE, Judge.

Case Summary

Rollett Family Farms, LLC (“Rollett”), owns land in Vanderburgh County along the Ohio River. Part of this property is divided into “river camps,” which Rollett leases to various tenants. The camps have existed in some form since at least 1938. Rollett now wishes to sell the camps to the individual tenants; however, the camps do not meet the requirements for subdivision as set forth in the Vanderburgh County Code (“VCC”). Rollett filed suit against the Area Plan Commission of Evansville-Vanderburgh County (“APC”), the Van-derburgh County Board of Commissioners, and the Vanderburgh County Recorder in an attempt to establish that the camps fit within an exemption for “lots of record” that were in existence prior to 1957, when the zoning and subdivision ordinances were adopted. Rollett was not able to provide any official documentation concerning the boundaries of the camps. Instead, Rollett relied on the testimony of long-time local residents, who testified with varying degrees of certainty that the configuration of the camps had remained essentially unchanged since before 1957. The trial court, relying on the lack of official documentation of the camps’ boundaries, denied Rollett’s claims.

Rollett now appeals, arguing that the exemption does not require written or recorded documentation. We disagree. The plain meaning of the words “of record” require some sort of documentation in the public records, such as a recorded plat or deed. Therefore, we affirm the judgment of the trial court.

Facts and Procedural History

Marie Rollett owned a parcel of land in Vanderburgh County that is bordered on the south by the Ohio River. The northern part of the parcel is farmland, and a strip along the river consists of several river camps. The river camps were leased to various tenants, some of whom built their own structures. Some of the tenants live there year-round and some do not. Roth Road runs through the river camps. The camps to the south of the road and immediately adjacent to the river have existed in some form since at least 1938. The camps on the north side of the road were established in the 1950s. Today, there are twenty-five camps and one additional small parcel that is used for river access. Nineteen of the camps have structures on them.

As part of her estate plan, Marie Rollett created Rollett Family Farms, LLC, to manage the property. Her children are the current members of Rollett, two of whom, John Rollett and Anne Schneider, are co-managers. The land owned by Rol-lett is assessed as one tax parcel; the improvements are assessed separately, and those taxes are paid by the tenants who own the improvements.

In October 2008, John made arrangements to sell one of the river camps to its current tenant. John contacted attorney Diane Bender and asked her to prepare a deed. Bender went to the Assessor’s Office to make sure that she was completing the paperwork correctly, and she was directed to the APC. Bender learned that, for various reasons including the size of the lot, the conveyance would not be in compliance with the VCC’s provisions concerning subdivisions. Bender later testified:

I explained the circumstance and they indicated that unless this fell within a certain exception ... it would not ... be able to be ... recorded-They said one of the exception^] was if the property had been sold or leased ... prior to, I forget if [19]56, [19]57 somewhere thereabouts....

Tr. at 48-49. The record reflects that the VCC provisions on zoning and subdivisions were adopted in 1957 and that certain nonconforming lots that existed prior to 1957 could be “grandfathered in.” Id. at 52. These lots are called “lots of record.” Id. at 148. Bender testified that she looked into the issue again in November 2011, and the Assessor accompanied her to the APC, wheré she was informed that the deed collld technically be recorded, but there would be “horrendous” penalties. Id. at 54.

Meanwhile, on August 7, 2009, Rollett filed a complaint against the APC, the Recorder, and the County Commissioners. The complaint, as amended on January 20, 2011, consists of four counts. Count I requested a “declaratory judgment directing that the APC be enjoined from interfering and/or otherwise preventing the conveyance of the individual tracts [i.e., the river camps] to third parties.” Appellant’s App. at 28. Count II alleged that the river camps “were established prior to the enactment of the local zoning ordinance and subdivision control ordinance” and that the tracts have “legal non-conforming descriptions and should be recognized as separate identifiable parcels of real estate.” Id. at 28-29. Count III alleged that compliance with a local zoning ordinance is not a requirement for recording a deed and requested that the court direct the Recorder “to record any instruments of conveyance or deed of the individual tracts to third parties” as long as the deeds were in conformance with state statute. Id. at 29. Count IV alleged that VCC Section 16.04.040 is unenforceable to the extent that it “grants to the APC and its executive director the power to approve instruments which convey real property interests as a condition of the instruments being recorded.” Id. at 30 (emphasis removed).

After Rollett unsuccessfully moved for summary judgment, the case proceeded to trial on June 22, 2012. In preparation for his attempt to sell the camps to the tenants, John had hired Fred Kuester to create a survey of the property, which he completed in March 2008. Kuester testified that the lines of occupation were visible, and he relied on visual cues such as tree lines, the way that people were maintaining the camps, and pipes or other markers that people had placed to indicate their boundaries.

Rollett also presented testimony from four men who had lived in or near the camps for many years: Clarence Winiger, Louis Winiger, Ed Steinkamp, and Ronald Steinkamp. Their testimony indicates that at least some of the camps existed as early as 1938 and that the remaining camps were in existence by 1957. They testified with varying degrees of certainty that the configuration of the camps had remained essentially unchanged since before 1957 and that Kuester’s survey accurately reflected the layout of the camps. Like Kuester, they relied on visual cues such as driveways and fences to form their opinion of where the boundaries were.

During the trial, Rollett stipulated that the camps do not qualify for subdivision pursuant to the current standards set forth in the VCC. Blaine Oliver, the assistant director of the APC, testified on behalf of the APC and confirmed that the

use as a camp ground or a river camp is ... fine. [I]n the zoning ordinance there is a special use for a private recreation facility. And, these camps were established well before this requirement came into being in the ... zoning code. So, we consider it an implied special use as long as it’s continued to ... be used for ... a river camp or camp ground type of use....

Tr. at 147-48. Oliver testified that the issue was not the use of the camps, but their conveyance, and whether they qualified as “lots of record”:

The question is are these leased parcels considered to be lots of record. You know, have they ... changed in their size, lot of record is something that is in the same size and configuration as it was pre 1957. So, you know, one question is whether or not a leased parcel could even be considered as lot of record. That when Mr. Shively [Rollett’s attorney at the time] called me to first inquire about this, I think I told him, we’ve never had this question before. So, I said if you have some documentation on, you know, when these were established I was hoping we would have some kind of recorded drawing that was pre 1957, that we could see or deeds that have legal descriptions in them or something.

Id. at 148-49.

Oliver further testified that the APC does not control what deeds are recorded. He explained that the APC had developed a procedure, in cooperation with the Assessor and the Auditor, of reviewing deeds before they are filed in order to alert the parties to potential violations of the zoning and subdivision codes before they occur.

On October 18, 2012, the trial court issued an order ruling in favor of the defendants. The court found that the APC does not control what deeds are recorded. The court also concluded that the camps do not qualify as lots of record:

15. The Real Estate has never been divided into more than one lot or parcel in any legally cognizable manner before or after the Plaintiff took title to the Real Estate, whether by conveyance, adverse possession, judicial partition of property jointly owned or otherwise....
16. The recollection of the various witnesses in this case as to how the River Camps were divided is not consistent, and even if it were, it does not constitute sufficient evidence to establish legal lot lines. Indiana law is very specific in providing that conveyances of land, whether they create new property boundaries or not, be in writing and otherwise comply with the Statute of Frauds. I.C. § 32-21-1-1 et seq.
18. While Indiana recognizes the legal establishment of a public right-of-way by use, there is no parallel theory to establish legal descriptions of parcels of land in the manner Plaintiff urges.
19. The Plaintiff urges the court to declare that the river camps in question are “legal nonconforming uses” and should therefore be exempt from the requirements of the Subdivision Code. However, this case is not about the use of the subject property. It is rather about the act of subdividing the subject property. On that issue, there is no evidence that the property lines for the river camps were ever legally established or the property was ever subdivided, especially prior to 1957. Consequently, there exists no prior legal nonconforming subdivision that would be an exception to the requirements of the subdivision code.

Appellant’s App. at 22-23.

Rollett filed a motion to correct error, which was deemed denied. Rollett now appeals. The APC has filed an appellee’s brief, but the Vanderburgh County Board of Commissioners and the Auditor have not participated in this appeal.

Discussion and Decision

The trial court issued findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A). Our standard of review is well-settled:

First, we must determine whether the evidence supports the trial court’s findings of fact. Second, we must determine whether those findings of fact support the trial court’s conclusions of law. We will set aside the findings only if they are clearly erroneous. Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference. A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts. In applying this standard, we neither reweigh the evidence nor judge the credibility of the witnesses. Rather, we consider, the evidence that supports the judgment and the reasonable inferences to be drawn therefrom. To make a determination that a finding or conclusion is clearly erroneous, our review of the evidence must leave us with the firm conviction that a mistake has been made.

Hartley v. Hartley, 862 N.E.2d 274, 281 (Ind.Ct.App.2007) (quoting Gregg v. Cooper, 812 N.E.2d 210, 214-15 (Ind.Ct.App. 2004), tram, denied).

This case turns primarily on interpretation of the VCC.

Interpretation of an ordinance is subject to the same rules that govern the construction of a state statute. Words are to be given their plain, ordinary, and usual meaning, unless a contrary purpose is shown by the statute or ordinance itself. Where possible, every word must be given effect and meaning, and no part is to be held meaningless if it can be reconciled with the rest of the statute. The goal in statutory construction is to determine and effect legislative intent. Courts must give deference to such intent whenever possible. Thus, courts must consider the goals of the statute and the reasons and policy underlying the statute’s enactment. If the legislative intent is clear from the language of the statute, the language prevails and will be given effect.

Hall Drive Ins., Inc. v. City of Fort Wayne, 773 N.E.2d 255, 257 (Ind.2002) (citations and quotations omitted); see also VCC § 1.04.020(A) (“Unless otherwise provided herein, or by law or implication required, the same rules of construction, definition, and application shall govern the interpretation of this code as those governing the interpretation of the Indiana Code.”). In order to determine the plain and ordinary meaning of words, we may consult English language dictionaries. Reed v. Reid, 980 N.E.2d 277, 289 (Ind. 2012).

Rollett argues that VCC Section 17.12.120 exempts the river camps from the zoning and subdivision ordinances. That section states: “Any lot in a recorded subdivision may be considered suitable for building purposes. A lot of record which existed in its present configuration and size prior to 1957, may be considered a lot suitable for building purposes.” In addition, the zoning ordinance defines the word “lot” as “an identifiable parcel of land having frontage on a public street or right-of-way, approved private streets, or acceptable easements.” VCC § 17.08.030. The VCC does not define the term “lot of record,” however.

Rollett argues that a “lot of record” is a parcel that meets the definition of “lot” in VCC Section 17.08.030 and, pursuant to VCC Section 17.12.120, existed in its present configuration and size prior to 1957. Rollett’s argument fails to give effect to the words “of record.” The ordinary meaning of these words refers to something that has been officially documented. See Blaok’s Law Dictionary 1120 (8th ed. 2004) (defining “of record” as “[Recorded in the appropriate records,” as in the phrase “counsel of record”); Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/record (last visited July 18, 2013) (defining “of record” as “being documented or attested” or “being authoritative or sanctioned”).

While the parties have not cited any Indiana authority that sheds light on the meaning of these ordinances, the APC has cited a similar case from Maine, Viles v. Town of Embden, 905 A.2d 298, 304 (Me. 2006). The Vileses owned two lots, Lot 7 and Lot 21, which were once part of a larger parcel of land. The Vileses obtained a permit to build a house on Lot 7, which has frontage on Embden Pond. After a neighbor, Hinman, complained, the permit was ultimately rescinded when the Embden Appeals Board determined that it was in violation of the Embden Shoreline Zoning Ordinance and that Lot 7 did not fit the exemption for lots of record.

On appeal, the Vileses argued that the Embden Appeals Board erred by concluding that Lot 7 was not a lot of record. The exemption in the zoning ordinance provides:

A non-conforming lot of record as of the effective date of this Ordinance or amendment thereto may be built upon, without the need of a variance, provided that such lot is in separate ownership and not contiguous with any other lot in the same ownership, and that all provisions of this Ordinance except lot size and frontage can be met.

Id. at 303 (quoting Embden Shoreline Zoning Ordinance § 4.4.1). As of 1972, when the ordinance was enacted, Lot 7 and Lot 21 were both part of a larger parcel. The Supreme Court of Maine held that Lot 7 did not qualify as a lot of record because it did not exist as a separate lot in 1972:

In Camplin v. Town of York, 471 A.2d 1035 (Me.1984), we interpreted a grandfather clause that exempted “lots of record” from complying with an amendment to the zoning ordinance. In that case, as here, the term “lots of record” was undefined in the ordinance. We said that we give undefined terms “their common and generally accepted meanings unless the context requires otherwise.” Id. at 1038. We held that the term applied to lots that were recorded at the time of the amendment and did not apply to lots that were developed or subdivided after the date of the amendment. Id. at 1039.

Applying the common and generally accepted definition of “lots of record” from Camplin, we agree with Hinman that the Board erred as matter of law when it concluded that Lot 7 was a nonconforming lot of record in 1972. In 1972 Lot 7 did not exist as a separate lot. It was only part of a larger tract of land. Lot 7 did not become a separate lot until its boundaries were described in the 1980 deed from the owner of the larger tract to the Crosses [who owned Lots 7 and 21 prior to the Vileses], and it did not become a lot of record until the 1980 deed was recorded, which was after the effective date of the Ordinance.

Id. at 304.

We find this reasoning persuasive and conclude that the phrase “of record” indicates that the lots must be documented by a public record such as a recorded deed or plat. The inclusion of the words “of record” reflects an intent to create objective, reliable criteria for determining what lots are exempt from the zoning and subdivision ordinances. While there is some official documentation regarding the river camp structures, such as the property tax records and a 1957 quadrangle map created by the government, there is none pertaining to the boundaries of the individual camps, and Rollett does not contend otherwise.

Rollett contends that Oliver’s testimony is consistent with its interpretation of the phrase “lot of record.” We disagree. Oliver testified:

The question is are these leased parcels considered to be lots of record. You know, have they ... changed in their size, lot of record is something that is in the same size and configuration as it was pre 1957. So, you know, one question is whether or not a leased parcel could even be considered a lot of record. That when Mr. Shively [Rollett’s attorney at the time] called me to first inquire about this, I think I told him, we’ve never had this question before. So, I said if you have some documentation on, you know, when these were established I was hoping we would have some kind of recorded drawing that was pre 1957, that we could see or deeds that have legal descriptions in them or something.

Tr. at 148-49. Oliver recognized that being the same size and configuration prior to 1957 is a requirement for exemption, but he also indicated that he expected to see documentation such as a recorded drawing or deed.

To the extent that Rollett is arguing that the zoning and subdivision ordinances are unenforceable because they interfere with vested property rights, we disagree. Rollett cites Town of Avon v. Harville, which states:

Generally, a zoning ordinance is subject to vested rights in the property of persons acquired prior to the enactment of a zoning restriction. Lutz v. New Albany City Plan Com’n., 230 Ind. 74, 81, 101 N.E.2d 187, 190 (1951). Such ordinances ordinarily may not be applied retroactively so as to disturb existing uses of the property. Id. at 80, 101 N.E.2d at 189. Moreover, the use of land or buildings may be protected from existing zoning restrictions if the use is one which existed and was lawful when the restrictions became effective and which continued to exist since that time. Metropolitan Dev. Com’n v. Goodman, 588 N.E.2d 1281, 1285 (Ind.Ct.App. 1992).

718 N.E.2d 1194, 1198-99 (Ind.Ct.App. 1999), trans. denied (2000). Town of Avon and the cases cited therein dealt with whether a nonconforming use was permissible. In this case, the APC concedes that use of the property as a campground is a permissible nonconforming use. Rollett is not being prevented from using the property the same way that it did prior to 1957; it is being prohibited from creating new nonconforming lots that were not formally or legally established prior to 1957.

In sum, we conclude that a lot of record must be documented by a public record such as a recorded deed or plat. Because there is no evidence that the boundaries of the camps are set forth in any public record, the trial court correctly found that the exemption does not apply. Therefore, we affirm the judgment of the trial court.

Affirmed.

ROBB., C.J., and FRIEDLANDER, J., concur.

      . Rollett does not appear to challenge this aspect of the trial court’s ruling.

      . The VCC is available online at http://www. codepublishing.com/in/vanderburghcounty/ (last visited July 18, 2013).


author: BARTEAU, Senior Judge.

text:
    James E. CHALFANT, Appellant-Plaintiff, v. Lana LODS, Appellee-Defendant.
    No. 79A02-1212-CT-986.
    Court of Appeals of Indiana.
    Aug. 13, 2013.
    Ordered Published Sept. 25, 2013.

      Jon R. Pactor, Indianapolis, IN, Attorney for Appellant.
    Christine A. Desanctis, Lafayette, IN, Attorney for Appellee.
   OPINION

BARTEAU, Senior Judge.

STATEMENT OF THE CASE

James E. Chalfant appeals the trial court’s grant of summary judgment in favor of Lana Lods upon his complaint for malicious prosecution. We reverse and remand.

ISSUE

Chalfant raises two issues, one of which we find dispositive and restate as: whether the trial court erred in granting summary judgment to Lods.

FACTS AND PROCEDURAL HISTORY

Pursuant to our standard of review, the facts most favorable to Chalfant are as follows. Chalfant and Lods married in 2000, and two children were born during the marriage. Lods filed for divorce in June 2007, and she had possession of the marital home during the divorce. Chalfant and Lods disagreed on custody arrangements for the children. Both parties agreed to joint legal custody, but Lods wanted sole physical custody, subject to visitation by Chalfant. By contrast, Chal-fant wanted joint physical custody with Lods.

On August 14, 2007, Chalfant, Lods, and the children spent the day undergoing a custody assessment in Brown County. The parties agreed that Chalfant would drive the children back to Lods’s home while Lods drove home separately. Lods told Chalfant not to buy any toys because one of the children had misbehaved that day. Despite her request, he bought toys for the children on the way back to Lods’s home.

When Chalfant brought the children to Lods’s home, the children went inside. Lods learned from them that Chalfant had bought toys. She became upset and approached his car. Lods “verbally attacked” Chalfant. Appellant’s App. p. 70. Next, she reached into his car, grabbed a file of papers, and threw the papers into the driveway. As Chalfant picked up the papers, Lods kicked him. Chalfant “defended himself’ without striking, kicking, or choking her, until she calmed down. Id. Chalfant did not see any sign of injury on Lods, and he left. Later, a friend of Lods went to the residence with pizza. Lods told her friend about the incident with Chalfant. They searched her driveway and found an earring.

On the next morning, August 15, Chal-fant returned to the marital home because one of the children was preparing to leave for the first day of kindergarten. Chalfant had previously informed Lods he wanted to be present, and she did not direct him to stay away. Chalfant took photographs of their child and left. Lods and Chalfant did not quarrel, and he saw no signs of injury on Lods.

After Chalfant left, Lods called the police to report that Chalfant had battered her on the previous day. She also requested a protective order. A police officer interviewed Lods. Lods told the officer that on August 14, she and Chalfant had a verbal altercation at the residence regarding whether she would grant him “50% child visitation rights.” Id. at 33. Lods further stated that when she refused to sign a settlement agreement, Chalfant grabbed her by the neck, lifted her off the ground, and said he would “f* * * * *g kill her” if she did not sign the papers. Id. In addition, she told the officer that her neck hurt and her lip bled as a result of Chalfant’s attack, but the officer did not note in the report that he independently observed any injuries.

Also on August 15, custody evaluator Theresa Slayton interviewed Lods. Slayton observed that Lods had a cut lip and a bruise on her right temple. Lods told Slayton that on the previous day, August 14, she became angry at Chalfant over the toys, threw his file of papers onto the driveway, and kicked him. Next, Lods told Slayton that Chalfant choked her, said that he wanted to kill her, and pulled her earrings out of her ears.

On August 17, a detective spoke with Lods about her prior police interview. She reviewed and corrected the initial police report at that time, stating that Chal-fant had shouted “I want to f* * ⅜ * *g kill you for not signing” as he choked her. Id.

On August 20, Lods called Chalfant to ask him to come to her home. At her request, he moved furniture around inside the house to minimize flood damage from a storm. No disputes occurred.

On August 28, the State charged Chal-fant with strangulation, a Class D felony, intimidation, a Class D felony, and two counts of domestic battery, one as a Class D felony and one as a Class A misdemean- or. The charges were based upon the officers’ interviews with Lods. The case was tried to a jury in June 2008, and Lods testified for the State. The jury determined that Chalfant was not guilty of any of the charges.

The current case began when Chalfant sued Lods, alleging malicious prosecution. Lods filed a motion for summary judgment. Chalfant filed a response and also asked the court to strike portions of affidavits that Lods had designated in support of her motion. After oral argument, the court granted Lods’s motion, determining that Chalfant had failed to establish a dispute of material fact as to whether the criminal case against him was unsupported by probable cause. The court did not rule upon Chalfant’s requests to strike. This appeal followed.

DISCUSSION AND DECISION

Chalfant argues that the trial court should not have granted summary judgment to Lods because he established a dispute of material fact regarding the lack of probable cause for criminal charges.

When reviewing the entry or denial of summary judgment, our standard of review is the same as that of the trial court: summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind.2009). All facts established by the designated evidence and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. Naugle v. Beech Grove City Sch., 864 N.E.2d 1058, 1062 (Ind.2007). We therefore do not resolve issues of fact on appeal; rather, we determine if the designated materials establish that there are issues of material fact.

The essence of malicious prosecution rests on the notion that the plaintiff has been improperly subjected to legal process. Ziobron v. Crawford, 667 N.E.2d 202, 208 (Ind.1996), trans. denied. A plaintiff must prove the following four elements: (1) the defendant instituted or caused to be instituted a prosecution against the plaintiff; (2) the defendant acted with malice in doing so; (3) the prosecution was instituted without probable cause; and (4) the prosecution was terminated in the plaintiffs favor. Waldrip v. Waldrip, 976 N.E.2d 102, 116-17 (Ind.Ct. App.2012).

The determination of probable cause is normally an issue of fact for the jury’s determination. Exec. Builders, Inc. v. Trisler, 741 N.E.2d 351, 357 (Ind.Ct. App.2000), trans. denied. A judicial determination of probable cause in a criminal proceeding constitutes prima facie evidence of probable cause in a subsequent suit for malicious prosecution. Lazarus Dep’t Store v. Sutherlin, 544 N.E.2d 513, 520 (Ind.Ct.App.1989), trans. denied. However, evidence of the judicial determination may be rebutted by evidence that shows the finding of probable cause was induced by false testimony, fraud, or other improper means such as the withholding of material facts. Kroger Food Stores, Inc. v. Clark, 598 N.E.2d 1084, 1089 (Ind.Ct.App. 1992), trans. denied.

Here, the parties agree that the court in Chalfant’s criminal case determined that probable cause existed for the charges against Chalfant. Thus, the key question is whether Chalfant provided evidence in this case to rebut the prima facie evidence of probable cause and to identify a dispute of material fact. We determine that he did. In response to Lods’s motion for summary judgment, Chalfant designated a detailed affidavit asserting that on August 14, Lods physically attacked him, and he merely defended himself without striking, kicking, or choking her. Considering the facts most favorable to Chalfant, as we must at this stage of the case, then this evidence shows that Lods presented a false version of events to the police.

In addition, Chalfant took Lods’s deposition during the criminal case. During her deposition, Lods admitted that after learning that Chalfant had bought toys for the children, she approached Chalfant’s car, removed a file of papers, and threw the papers onto the driveway. Lods had also told Slayton on August 15 that she had thrown Chalfant’s papers on the driveway and kicked him. Lods did not share this information with the police during her interviews. She also did not tell the officers that Chalfant went to the marital home on the morning of August 15 to send their child off to kindergarten, and that no conflicts arose during that visit. Thus, Lods withheld material information from the police that was relevant to a determination of probable cause and inconsistent with the version of events she provided the police.

Furthermore, after Lods called the police and requested a protective order, but before the State charged Chalfant with the offenses, she asked Chalfant to come to her home to move furniture around. No disputes occurred. Viewing the facts and all inferences drawn therefrom in the light most favorable to Chalfant, this evidence tends to indicate that the events of August 14 did not occur as Lods described them to the officers, because it is reasonable to infer that she would not have invited him to her house if she had been attacked by him and was frightened enough to seek a protective order.

Lods’s statements to the officers were the sole basis for the charges against Chalfant. However, Chalfant’s designated evidence shows that she made false statements to the officers and omitted material facts. Chalfant has therefore rebutted the presumption that arose from the prior judicial finding of probable cause and has established a dispute of material fact as to the lack of probable cause. See Kroger, 598 N.E.2d at 1090 (holding that the plaintiff, claiming malicious prosecution, rebutted a determination of probable cause in a prior criminal case by establishing that the probable cause affidavit in the criminal case was based on a “blatant misrepresentation” and a lack of corroborating circumstances).

Lods argues that the “exact nature” of the altercation between her and Chalfant is not a material fact. Appellee’s Br. p. 8. She further argues that Chalfant’s claim of self-defense does not establish a dispute of material fact because she believes the mere fact that “there was an argument and a physical altercation,” regardless of who was at fault, established probable cause for criminal charges. Id. at 9. We cannot agree. If the version of events that Lods shared with the police is correct, Chalfant may well have committed crimes. If Chalfant’s version of events is correct, then he did not commit any crimes but rather passively defended himself from Lods’s physical attacks upon him. This is a significant point of factual disagreement, and Chalfant’s designated evidence shows that Lods made false statements to the police and omissions of material fact sufficient to rebut the judicial determination of probable cause in Chalfant’s criminal case.

Lods also argues that we should not consider her deposition because: (1) the State subsequently amended the charging information to correct inaccuracies revealed in the deposition; and (2) Chalfant could have moved to dismiss the criminal case for lack of probable cause after the deposition but did not do so. We disagree. Chalfant designated Lods’s deposition in response to Lods’s motion for summary judgment. Lods did not object to the designation of the deposition or seek to strike it. Thus, the deposition was part of the record presented to the trial court, and we may also consider it on appeal.

We express no opinion on the merits of Chalfant’s complaint. The trial court stated that its ruling was based, in part, on “Indiana’s public policy which encourages victims of domestic violence to seek orders of protection,” Appellant’s App. pp. 14-15, and we share the trial court’s interest in furthering that policy. Nevertheless, another public -policy is also at issue here, specifically ensuring that people submit truthful complaints to law enforcement. Under the circumstances of this case, Lods is not entitled to summary judgment because there are disputes of material fact as to Chalfant’s claim. The parties’ dispute must be submitted to a trier of fact for resolution.

CONCLUSION

For the reasons stated above, we reverse the judgment of the trial court and remand for further proceedings.

Reversed and remanded.

VAIDIK, J., and CRONE, J., concur.

      . Chalfant also claims that the trial court erred by denying his requests to strike portions of affidavits Lods designated in support of her motion for summary judgment. It is unnecessary to address this claim due to the manner in which we resolve this appeal.

      . Although the trial court’s judgment states that Lods obtained a protective order, the record on appeal does not reflect whether that actually occurred.


text:
    Gina ALBRIGHT, Appellant-Petitioner, v. REVIEW BOARD OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and the Starke County Sheriff's Department, Appellees-Respondents.
    No. 93A02-1301-EX-81.
    Court of Appeals of Indiana.
    Sept. 12, 2013.

      Nicholas A. Snow, Harris Law Firm, P.C., Crown Point, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Kyle Hunter, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee Review Board.
    Martin R. Lucas, North Judson, IN, Attorney for Appellee Starke County Sheriffs Department.
   OPINION

CRONE, Judge.

Case Summary

Gina Albright worked as a 911 dispatcher for the Starke County Sheriffs Department (“the Department”). After a firecracker exploded behind her, she experienced hearing loss, vertigo, and tinnitus. She received sick leave and worker’s compensation. After her doctor determined that she was capable of returning to work, Albright did not return to work by taking sick days, vacation days, and bereavement days. After Albright failed to show up for her scheduled shift and call the Department to inform it of her absence, the Department terminated her employment.

Albright filed a claim for unemployment benefits with the Indiana Department of Workforce Development (“DWD”), which found that she was discharged for just cause and ineligible for unemployment benefits. The denial of her claim for unemployment benefits was ultimately affirmed by the DWD Review Board (“Review Board”).

Albright appeals the denial of her claim for unemployment benefits, arguing that the Review Board’s decision is contrary to law. Specifically, she contends that there was insufficient evidence to support its finding that she was discharged for just cause because she knowingly violated a reasonable and uniformly enforced rule. She also argues that the Review Board erred in failing to find that she had a medically substantiated physical disability and therefore was not subject to disqualification for unemployment benefits. We conclude that the Review Board’s denial of her claim is not contrary to law and therefore affirm.

Facts and Procedural History

The evidence most favorable to the Review Board’s decision shows that on January 1, 1995, Albright began working at the Department as an office manager. The Department’s employee handbook provides in relevant part, “If tardiness exceeds two hours, it will be considered unscheduled time off if the employee notifies the Responsible Elected Official, or where appropriate, Department Head. If the employee does not notify the Responsible Elected Official, or where appropriate, Department Head, the employee may be discharged for absence without notification.” Claimant’s Ex. 1 at 36. Albright was aware of this policy.

In January 2011, the Department reassigned Albright to work as one of eight 911 dispatchers, under the supervision of a chief dispatcher. Albright’s duties included answering emergency calls and dispatching emergency medical, fire, and police services. The dispatchers worked twelve-hour shifts, four days on and four days off, with two dispatchers working each shift. Albright worked 6:00 p.m. to 6:00 a.m. The Department’s standard policy was that all dispatchers were required to call the chief dispatcher or the sheriff if they were unable to work as scheduled. Id. at 35; Tr. at 17.

On April 15, 2011, the chief dispatcher gave Albright an oral reprimand for failing to answer calls in a timely manner and prioritize calls. On April 13, 2012, the chief dispatcher gave Albright a written reprimand for jeopardizing the welfare of a caller.

On' May 23, 2012, Albright was at work when an on-duty police officer lit a firework and threw it into the dispatcher’s office. The firework exploded behind Al-bright. She experienced hearing loss and applied for and received sick leave and worker’s compensation. On June 20, 2012, Dr. Doug Liepert examined Albright and reported that she had symmetrical mild hearing loss at higher frequencies, benign positional vertigo, and tinnitus, and that she would need further treatment, but nevertheless concluded that she should be able to continue with work. Claimant’s Ex. 2 at 44. Albright knew that the doctor had cleared her to return to work. Al-bright was referred to a therapist for treatment of her symptoms, which she completed in October 2012.

Albright’s four-day work week was scheduled to begin June 25, 2012, but she did not return to work. She took sick days for June 25 and 26 and requested and was granted vacation days for June 26 and 27. She was next scheduled to work July 3 through 6, 2012. She took sick days for July 3 and 4. Albright requested vacation days for July 5 and 6, but the chief dispatcher denied her request and told Al-bright that she would have to use her sick days. On July 5, 2012, Albright had a death in the family. Instead of using sick days for July 5 and 6, she used two of the three bereavement days available to employees. In a telephone conversation, the chief dispatcher informed Albright that her next four-day work week would begin on July 11, 2012. Id. at 16, 33-34, 61-62. Albright told the chief dispatcher that she would use her last bereavement day on July 11. Albright asked to take vacation days for July 12, 13, and 14. The chief dispatcher told Albright that she “could not approve her vacation since she had been off work since May 23rd.” Id. at 16. On July 12, 2012, Albright’s husband called the Department and reported that she had a migraine and would not be working. On July 13, 2012, Albright attempted to apply for unpaid leave pursuant to the Family Medical Leave Act. She did not show up to work her shift, nor did she talk to the chief dispatcher or the sheriff to report her absence. This was the first time that one of the dispatchers had failed to show up as scheduled and call in to report an absence. Id. at 59.

On July 14, 2012, Albright received a letter from the Department informing her that her employment was terminated. The letter did not provide the reason for her termination. Albright applied with DWD for unemployment benefits. A claims deputy found that she was discharged for just cause and was therefore ineligible for unemployment benefits. Al-bright appealed the denial of benefits to the administrative law judge (“ALJ”). Following a hearing, the ALJ found that Albright was aware that she was scheduled to work July 13, 2012, did not show up for work, and did not call in to report her absence. It further found that the Department had a policy prohibiting unexcused absences that was reasonable and uniformly enforced, and that Albright was discharged for violating this poliey. The ALJ concluded that Albright knowingly violated a reasonable and uniformly enforced rule and therefore was discharged for just cause and was ineligible for unemployment benefits. Albright appealed the ALJ’s decision to the Review Board, which adopted and incorporated the ALJ’s findings of fact and conclusions of law and affirmed its decision. Albright appeals.

Discussion and Decision

Albright appeals the Review Board’s denial of . her claim for unemployment benefits. The Indiana Unemployment Compensation Act (“the Act”),' provides that any decision of the Review Board-shall be conclusive and binding as to all questions of fact. Ind.Code § 22-4-17-12(a). When the Review Board’s decision is challenged as being contrary to law, our review is limited to a two-part inquiry into: “(1) ‘the sufficiency of the facts found to sustain the decision;’ and (2) ‘the sufficiency of the evidence' to sustain the findings of facts.’ ” McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314, 1317 (Ind.1998) (quoting Ind.Code § 22-4-17-12(f)). Applying this standard, we review “(1) determinations of specific or ‘basic’ underlying facts, (2) conclusions or inferences from those facts, sometimes called ‘ultimate facts,’ and (3) conclusions of law.” Id. The Review Board’s findings of basic fact are subject to a “substantial evidence” standard of review. Id. In conducting our analysis, we neither reweigh evidence nor judge witness credibility; rather, we consider only the evidence most favorable to the Review Board’s findings. Id. The Review Board’s conclusions regarding ultimate facts involve an inference or deduction based on the findings of basic fact, and we typically review them to ensure that the Review Board’s inference is “reasonable” or “reasonable in light of its findings.” Id. at 1317-18 (citation and quotation marks omitted). We review the Review Board’s conclusions of law using a de novo standard. Ind. State Univ. v. LaFief 888 N.E.2d 184, 186 (Ind.2008).

The Act provides unemployment benefits to individuals who are “unemployed through no fault of their own.” Ind.Code § 22-4-1-1. Under the Act, an individual is disqualified for unemployment benefits if he or she is discharged for “just cause.” Ind.Code § 22^4-15-l(a). Discharge for just cause includes a “knowing violation of a - reasonable and uniformly enforced rule of an employer, including a rule regarding attendance.” Ind.Code § 22-4-15-1 (d)(2). When the employer alleges that the employee was discharged for just cause, the employer bears the burden of establishing a prima facie case of discharge for just cause. Alebró, LLC v. Review Bd. of Ind. Dep’t of Workforce Dev., 968 N.E.2d 236, 238 (Ind.Ct.App. 2012). “Once the employer meets its burden, the burden shifts to the employee to rebut the employer’s evidence.” Id.

The Department’s policy provides that an employee who takes an unscheduled absence and fails to notify the Department of such an absence “may be discharged for absence without notification.” Claimant’s Ex. 1 at 36. Albright argues that there is insufficient evidence to support the Review Board’s finding that she knowingly violated the Department’s policy. To knowingly violate an employer’s rule, the employee must (1) know of the rule and (2) know his conduct violated the rule. Stanrail Corp. v. Review Bd. of Dep’t of Workforce Dev., 735 N.E.2d 1197, 1203 (Ind.Ct.App.2000), tram, denied (2001).

Albright does not argue that she did not know the Department’s policy on unexcused, unreported absences. She asserts that the evidence shows that she did not know for certain whether she was supposed to work July 13, 2012. However, both Albright and the chief dispatcher testified that Albright asked to take vacation days for July 12, 13 and 14, 2012, and that her request was denied. This testimony supports a reasonable inference that Al-bright knew she was scheduled to work on July 13, 2012. Also, the chief dispatcher specifically testified that she told Albright that she had to work on July 13, 2012. Albright’s argument is an invitation to judge witness credibility and reweigh the evidence, which we may not do.

Albright next argues that there was insufficient evidence to support the Review Board’s finding that the Department’s policy was uniformly enforced. We have explained that

[a] uniformly enforced rule is one that is carried out in such a way that all persons under the same conditions and in the same circumstances are treated alike. In order to evaluate uniformity one must first define the class of persons against whom uniformity is measured. Typically, this determination is a question of law but it may be informed by appropriate findings as employer practices. Once the class is defined, the question of whether the employer treats the persons within the class consistently is a basic factual inquiry and is reviewed subject to the substantial evidence test and for conformity to law.

Id.

Albright contends that the Department failed to properly define the class of persons against whom uniformity of the rule should be measured. Specifically, Albright argues that the chief dispatcher’s testimony that Albright was the first employee who had ever failed to show up and call in was in reference to the dispatcher’s office only, whereas the unexcused, unreported absence rule was in the employee handbook that applied to all county government employees. According to Albright, the Department’s failure to present evidence as to whether county employees outside her department had ever violated the rule is fatal to the Department’s position.

We disagree. One of the major objectives of a 911 dispatcher’s duties is to assist people in an emergency. As such, a functioning dispatcher’s office is essential to public safety. There must be a sufficient number of dispatchers on the job so that emergencies are responded to in a timely manner. We conclude that dispatchers are an appropriately distinct class upon which to assess the uniform enforcement of the unexcused, unreported absence policy.

Albright also argues that the unexcused, unreported absence rule could not have been uniformly enforced because discharge under the rule is discretionary, her supervisor had a history of non-uniform enforcement of other workplace rules, and “it is illogical for the [Review Board] to find that a policy is ‘uniformly1 enforced when it is presented with only Employer’s response to a single, isolated violation.” Appellant’s Br. at 17. Our supreme court has provided guidance in assessing whether a newly enforced rule has been uniformly enforced.

A policy that has not been the basis for termination of an employee in the past may nonetheless be “uniformly enforced” even if only one person is the subject of an enforcement action, so long as the purposes underlying uniform enforcement are met. Uniform enforcement gives notice to employees about what punishment they can reasonably anticipate if they violate the rule and it protects employees against arbitrary enforcement. This is important to ensure that employees who are denied compensation under this subsection are only those who lost their jobs for reasons within their control. Here, the purposes were met if, as the ALJ found, McClain knew of the violation, knew or can be fairly charged with knowledge that it could result in termination, and there was no arbitrary enforcement. These factual determinations are supported by substantial evidence. As such we accept them.

McClain, 693 N.E.2d at 1319-20 (citations omitted).

Therefore, we must examine whether Albright knew of the violation, whether she knew or can be fairly charged with knowledge that it could result in termination, and whether there was no arbitrary enforcement. We have already determined that Albright knew the rule and knowingly violated it. As for whether she knew or can be fairly charged with knowledge that she could be discharged if she failed to show up for her shift and failed to call in to notify the office, the rule clearly states that discharge “may” be a result of a violation. Claimant’s Ex. 1 at 36. Al-bright argues that because the rule does not mandate discharge, it provides “unbridled discretion” like the rule in Stanrail, 735 N.E.2d 1197. Appellant’s Br. at 15. We disagree.

The facts in Stanrail are nothing like those present here. In Stanrail, the employer terminated Willie S. Lemley for violating its attendance policy. Lemley had already taken the maximum number of three-day absences allowed in the calendar year when he got contact dermatitis, for which he provided medical documentation, and had to miss three days. Lemley was denied an exception to the three-day absence policy. Other employees received exceptions to the yearly limit of three-day absences, but the criteria for determining whether an individual was entitled to an exception were not written or published to employees. Therefore, the Stanrail court concluded that the employer’s attendance policy was not uniformly enforced. Id. at 1205-06.

The Stanrail employees could not be fairly charged with knowledge as to whether they would receive an exception or not. Here, in addition to the clear language of the Department’s policy informing employees that discharge was a possible consequence of violating the policy, it is also significant that standard operating procedure was for all dispatchers to call in if they were unable to work as scheduled, and it is undisputed that all dispatchers had been doing so until Albright’s violation. As for the leeway the chief dispatcher provided Albright in requesting vacation days and allowing her husband to call in sick for her, these departures from standard procedures do not impact the ability of the dispatchers’ office to perform its function. Significantly, the employee handbook does not state that failure to comply with procedures for requesting vacation days or personally calling may result in the possibility of discharge. Accordingly, the leniency exercised by the chief dispatcher as to these matters would not dimmish an employee’s understanding that failing to show up and call in could result in discharge. We conclude that Al-bright knew or can be fairly charged with the knowledge that an unexcused, unreported absence could result in termination.

There is also no evidence that the rule was arbitrarily enforced. Albright knew about the rule, she knowingly violated the rule, and the rule clearly provides that discharge was a possible consequence of violation. In addition, she had previously received both oral and written warnings. Accordingly, we conclude that the Department’s rule was uniformly enforced.

Lastly, Albright argues that the Review Board erred in failing to find that she was exempted from disqualification for unemployment benefits pursuant to Indiana Code Section 22-4 — 15—1 (c)(2), which provides, “An individual whose unemployment is the result of medically substantiated physical disability and who is involuntarily unemployed after having made reasonable efforts to maintain the employment relationship shall not be subject to disqualification under this section for such separation.” To qualify for this exception, an employee must

(1) medically substantiate the termination of his employment is the result of physical disability and (2) substantiate that prior to the termination of his employment he made reasonable efforts to maintain it by sufficiently advising his employer of his disability and the accompanying limitations with the purpose of seeking reasonable alternate work assignments.

Y.G. v. Review Bd. of Ind. Dep’t of Workforce Dev., 936 N.E.2d 312, 315 (Ind.Ct. App.2010) (citation omitted).

Here, although Albright testified that she did not feel ready to return to work, her doctor concluded that despite the lingering minor effects of the blast, she was capable of returning to work. In addition, there is no evidence that Albright made any effort to maintain the employment relationship by requesting to work in a different capacity. We find no error.

Based on the forgoing, we conclude that the Review Board’s determination that Al-bright was discharged for just cause is not contrary to law and affirm its denial of unemployment benefits.

Affirmed.

BARNES, J., and PYLE, J., concur.

      . Indiana Administrative Rule 9(G)(Z )(b)(xviii) provides that "[a]ll records of the Department of Workforce Development as declared confidential by Ind.Code § 22-4-19-6” are excluded from public access and are confidential in judicial proceedings. Our supreme court cited this rule in support of its use of initials to identify the claimant and the employer in J.M. v. Review Board of Indiana Department of Workforce Development. In the version of this opinion that appears on the supreme court’s official website, footnote 1 reads, "Identities of the claimant and employing unit are generally subject to the confidentiality requirements prescribed in Indiana Code section 22-4-19 — 6(b) (2007). This confidentiality requirement is expressly implemented as to judicial proceedings by Indiana Administrative Rule 9(G)(l)(b)(xviii).” 975 N.E.2d 1283, 1285 n. 1 (Ind.2012). http:// www.in.gov/judiciary/opinions/pdf/10171201 shd.pdf (last visited Sept. 11, 2013). In fact, we cited this footnote in T.B. v. Review Board of the Indiana Department of Workforce Development, 980 N.E.2d 341, 343 n. 1 (Ind.Ct. App.2012). Although there is no indication of the supreme court having issued an order that footnote 1 was being amended or entering notice thereof on the official docket maintained by the clerk of the supreme court, a different version of footnote 1 has been published in West’s Northeastern Reporter. There, footnote 1 reads,
      Although in this case we kept the claimant and employing unit confidential, our practice going forward will be to keep these parties confidential only if they make an affirmative request as outlined in Recker v. Review Board, 958 N.E.2d 1136, 1138 n. 4 (Ind.2011). As discussed in Recker, an affirmative request must be made for confidentiality.
      975 N.E.2d 1283, 1285 n. 1 (Ind.2012). Indiana Appellate Rule 22 provides that all Indiana cases shall be cited by giving the volume and page of the regional and official reporter (where both exist). Thus, even though the original version of footnote 1 still exists on the supreme court’s website and no order of amendment was issued or entry of amendment appears on the docket, it would appear that we are required to follow West's version of J.M. In light of the most recent version of footnote 1, we are using the names of the claimant and the employer in this case because the parties have not requested the use of initials.

      . The employee handbook is the employee handbook for the county government of which the Department is a part. The handbook indicates that it is "not for use by the staff of [the Department].” Claimant’s Ex. 1 at 29. However, the parties agree that this employee handbook was applied to the employees of the Department.

      . Albright mischaracterizes the prohibition on relatives calling in for employees. The employee handbook does not prohibit such calls. Although it states that it is not considered acceptable, it allows for such calls "under emergency conditions, or if not medically possible." Claimant's Ex. 1 at 35.


author: ROBB, Chief Judge.

text:
    Justin D. MAURER, Appellant-Respondent, v. Crystal COBB-MAURER, Appellee-Petitioner.
    No. 02A03-1304-PO-129.
    Court of Appeals of Indiana.
    Sept. 19, 2013.

      Michael A. Setlak, Fort Wayne, IN, Attorney for Appellant.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

Justin Maurer appeals the trial court’s issuance of an Order for Protection against him in favor of Crystal Cobb-Maurer. Justin raises the following issue for our review: whether there was sufficient evidence to support the issuance of the protective order. Concluding there was not sufficient evidence for the trial court to issue the protective order, we reverse.

Facts and Procedural History

On February 27, 2013, Crystal petitioned for and obtained an ex parte Order for Protection against Justin. On March 7, 2013, the protective order action was transferred to the dissolution of marriage action pending between the parties in the Allen County Circuit Court. On March 18, 2013, that court held a de novo hearing on the Petition for Order for Protection, at which Crystal and Justin appeared in person and by counsel. The trial court requested that counsel for both parties proceed in summary fashion, and neither Crystal nor Justin testified.

Crystal’s counsel stated that Crystal had been the recipient of constant emails and text messaging from Justin. Her counsel offered only one email into evidence but alleged it was “one of many emails” exchanged between the parties. Transcript at 6. In the three page email, Justin wishes Crystal a “Happy Valentine’s Day” and tells her he loves her and wishes to restore them marriage. Appellant’s Appendix at 33. Justin conveys his disapproval of and forgiveness for Crystal’s romantic relationship with another man and his disapproval of the concept of divorce, quoting a number of Bible passages throughout. The exhibit also includes Crystal’s reaction to Justin’s email, given while forwarding the email to her attorney: “Now he wants our marriage back together. I feel like he [is] a saleman [sic] trying to sell me on somth-ing [sic].” Id. Crystal’s counsel also alluded to a December 2012 incident, where Crystal attempted to walk away from Justin, and he “physically touched [Crystal] in some sort of effort to get her to abide by his wishes to save the marriage.” Tr. at 5.

The trial court gave only this comment on the evidence before ruling: “I’ve got an incident I’m bothered by the uh extent of the uh, uh harassing, uh or the email uh exchanges, I think are, reached the level of harassment.” Id. at 13. The trial court later issued its Order for Protection against Justin. This appeal followed. Additional facts will be supplied as necessary.

Discussion and Decision

I. Standard of Review

As an initial matter, we note that Crystal did not file an appellee’s brief. When an appellee fails to file a brief in response, we need not undertake the burden of constructing an argument on the appellee’s behalf. Tisdial v. Young, 925 N.E.2d 783, 784 (Ind.Ct.App.2010). We will reverse the trial court’s judgment if the appellant presents a case of prima facie error, which is defined in this context as “at first sight, on first appearance, or on the face of it.” Id. at 784-85.

When reviewing the sufficiency of evidence to support a protective order, the reviewing court will neither reweigh the evidence nor judge witness credibility. Id. at 785. We consider only the probative evidence and reasonable inferences that support the judgment. Id.

II. Order of Protection

We approach this discussion with a firm understanding of the importance of protective orders within our judicial system and the vital role that they play in our society’s attempt to curb domestic violence. These matters should be treated with the care and consideration that the gravity of their purpose demands. To that end, we believe that this case demonstrates the shortcomings — on many levels — of a hearing on such matters conducted without thorough presentation of the evidence and examination of the parties involved.

Justin argues on appeal that there was not sufficient evidence to support the issuance of a protective order and that the trial court erred by finding Crystal established domestic or family violence or stalking by a preponderance of the evidence. The Indiana Civil Protection Order Act (“CPOA”) provides that a protective order may be issued when a trial court finds, by a preponderance of the evidence, that the respondent represents a credible threat to the safety of petitioner — that is, that domestic or family violence has occurred. Ind.Code § 34 — 26—5—9(f). “Domestic or family violence” is defined as the occurrence of at least one of the following acts by the respondent:

(1) Attempting to cause, threatening to cause, or causing physical harm to another family or household member.
(2) Placing a family or household member in fear of physical harm.
(3) Causing a family or household member to involuntarily engage in sexual activity by force, threat of force, or duress.
(4) Beating ..., torturing ..., mutilating ..., or killing a vertebrate animal without justification with the intent to threaten, intimidate, coerce, harass, or terrorize a family or household member.

Ind.Code § 34-6-2-34.5. For the purposes of the CPOA, the definition of “domestic or family violence” “also includes stalking (as defined in IC 35-45-10-1) or a sex offense under IC 35412-4.... ” Id. In making its determination here, the trial court’s findings state only that “[t]he Petitioner has shown, by a preponderance of the evidence, that domestic or family violence has occurred sufficient to justify the issuance of this Order,” without signaling whether its finding is based upon one of the delineated acts — involving violence or threat of violence — or based upon a finding that stalking occurred. Appellant’s App. at 6. We will discuss first whether there was sufficient evidence to support issuance of the protective order under one of the delineated acts above, and second, we will discuss whether there was sufficient evidence to find that stalking occurred.

A. Domestic or Family Violence

First, we consider whether there was sufficient evidence presented at the hearing to conclude that Justin committed an act of domestic or family violence, as defined by Indiana Code section 34-6-2-34.5. In other words, whether the evidence could support a finding that Justin “attempt[ed] to cause, threatened] to cause, or caus[ed] physical harm” to Crystal or placed her “in fear of physical harm.” Ind.Code § 34-6-2-34.5(l)-(2).

Evidence of such acts of physical violence or threat of violence was not presented at the hearing. The email, which Crystal’s attorney submitted into evidence, is devoid of any physical threat or even the intimation of a threat of physical harm. And Crystal’s attorney did not mention any occurrence of a verbal threat issued from Justin to Crystal. Further, the only reference to any physical contact whatsoever between the parties was Crystal’s attorney’s mention of an occasion where Justin “physically touched [Crystal] in some sort of effort to get her to abide by his wishes to save the marriage.” Tr. at 5. Her attorney did not elaborate on this incident or give any indication that Justin’s act of touching Crystal was even remotely violent. Indeed, her attorney noted that he believed the incident, in conjunction with the email, was “relevant to a finding of harassment,” rather than a finding of physical harm or threat of harm. Id. at 7.

What is perhaps most illuminating is the trial court’s own statement, in which it expressed that its ruling was based upon the email and its belief that those exchanges reached the level of harassment: “I’ve got an incident I’m bothered by the uh extent of the uh, uh harassing, uh or the email uh exchanges, I think are, reached the level of harassment.” Id. at 13. Given the nature of the evidence presented and the trial court’s characterization of the evidence as showing harassment rather than a threat of harm, we conclude that the trial court’s issuance of the protective order was not — and could not have been — based upon a finding of violence, threat of violence, or an act placing Crystal in fear of physical harm. We move, then, to a discussion of whether the evidence was sufficient to support a finding by the trial court that stalking occurred.

B. Stalking

Indiana law defines “stalking” as “a knowing or an intentional course of conduct involving repeated or continuing harassment of another person that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened and that actually causes the victim to feel terrorized, frightened, intimidated, or threatened.” Ind.Code § 35^15-10-1. “Harassment” is defined as “conduct directed toward a victim that includes but is not limited to repeated or continuing impermissible contact that would cause a reasonable person to suffer emotional distress and that actually causes the victim to suffer emotional distress.” Ind.Code § 35-45-10-2.

As an initial matter, it is unclear from the trial court’s statement whether its finding of harassment is based upon the sole email entered into evidence or upon the existence of “many” others as alleged by Crystal’s counsel at the hearing. Under Indiana’s anti-stalking law, the term “repeated” means that the' impermissible contact occurs more than once. Mysliwy v. Mysliwy, 953 N.E.2d 1072, 1077 (Ind.Ct. App.2011), trans. denied. Given our standard of review, we will assume that the trial court considered not only the email in evidence, but also Crystal’s counsel’s reference to “many” other emails or text messages. However, the mere fact that contact occurred between Justin and Crystal on more than one occasion cannot — without more — constitute stalking. There must also be evidence that Justin’s conduct qualified as harassment that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened and that it actually caused Crystal to feel terrorized, frightened, intimidated, or threatened. See Ind.Code § 35-45-10-1.

It is often the case that stalking is found where contact between persons includes some form of physical threat. See, e.g., Eberle v. State, 942 N.E.2d 848, 860-61 (Ind.Ct.App.2011) (victim received lewd communications from Eberle, and after learning that she had informed the police, Eberle continued to contact the victim, telling her to “watch [he]r back” and that he would “f* * * [her] up”), trans. denied; Smith v. State, 802 N.E.2d 948, 950 (Ind. Ct.App.2004) (Smith left victim eight or nine voicemail messages, at least one of which included a threat on the victim’s life). However, there is no requirement that the contact at issue be threatening on its face, and stalking may be found where other evidence is sufficient to prove that the contact amounted to harassment. See Andrews v. Ivie. 956 N.E.2d 720 (Ind.Ct. App.2011).

In Andrews v. Ivie, this court affirmed a trial court’s issuance of a protective order, holding that sufficient evidence existed to support the trial court’s finding that Ivie was a victim of stalking. Id., at 725-26. The victim in Andrews testified that she and Andrews ended their relationship in December 2008, and after a “slow breakup,” she sent Andrews an email in April 2009 asking him to stop contacting her. Id. at 721. Despite her request, Andrews continued contacting Ivie Ada email, text message, Facebook, and sent her numerous gifts via snail mail. Id. Ivie made additional demands that Andrews cease contacting her and attempted to block Andrews from her phone service, email, and Facebook account. Id. However, Andrews remained undeterred, contacting Ivie during the months of April, May, July, October, November, and December of 2009, as well as several times throughout 2010, until she finally petitioned for a protective order in November of 2010. Id.

At the hearing, Ivie testified that she was disturbed by Andrews’s continuing efforts to contact her despite her repeated requests to stop; his unwelcome’ contacts were causing her to “suffer emotional distress”; he was tAviee her size, an avid gun collector, and knew where she lived, and she was concerned he had the means to hurt her; he had been on and off of antidepressants; she “worried] about the tone of his emails”; and she testified she was “very concerned about his irrational mind and how it might affect me.” Id. at 722. When Ivie filed her petition, she filed Avith the trial court sixty-four pages of emails she had received from Andrews. Id. Andrews argued that gifts and messages expressing love for Ivie should not be considered stalking. Id. 723-24. But at the end of the hearing, after all the evidence and testimony had been admitted, the trial court said

[T]his is the largest stack of emails, mail delivery, [and] presents I’ve ever seen in a case in ten years of doing this and this says to me that, you know, maybe you’re doing the nice thing and that’s fine but unfortunately she says it’s bothering her. She’s, in multiple emails up here, told you to stop contacting her.

Id. at 722.

The wealth of evidence and testimony presented in Andrews stands in stark contrast to the scant evidence presented at the hearing in this case. It is true that both cases involve email messages from the respondent professing his love for the petitioner. But that is where the comparison ends.

The court in Andrews dismissed the notion that the trial court improperly issued the order based upon the content of messages not offered into evidence, id. at 724, and we, likeAvise, conclude that the trial court could not have issued its order in this case based on the content of any messages not entered into evidence. Instead, the court in Andrews determined that the trial court based its ruling on the extent of the contacts, numerous unwelcome gifts from Andrews, Ivie’s repeated demands that he leave her alone, her attempts to avoid contact from him, and Ivie’s testimony regarding the effect of the contacts on her. Id. Any qualitatively similar evidence is conspicuously absent in this case.

With respect to the extent of contact between Justin and Crystal, the trial court had before it a single email entered into evidence and a claim by Crystal’s counsel that it was “one of many.” Tr. at 6. Her counsel’s description of the emails as “constant[]” is noticeably vague and is more akin to hyperbolic argument than to evidence. Id. at 5. There was no mention of particular dates on which the contacts occurred, an estimation of the number of impermissible contacts over the course of a period of time, or even evidence of when the alleged impermissible contact began. “Many” emails over the course of an undisclosed timeframe could be as few as two or as numerous as two million; the trial court’s guess would have been as good as ours.

Moreover, unlike the victim in Andrews who testified that she repeatedly asked Andrews to leave her alone and made serious attempts to avoid contact with him, Crystal — or rather, her attorney — did not state that she had ever requested Justin stop contacting her or made any attempt to avoid communication with him, and the trial court could not simply assume that Crystal took these actions. We find this lack of evidence significant, because one could hardly characterize mutual communication between two parties as harassment within the meaning of the stalking statute.

Finally, and most importantly, is the question of the effect of the contacts on Crystal and whether they could — and actually did — cause her to feel terrorized, frightened, intimidated, or threatened. In Andrews, the victim testified that the unwelcome contacts were “disturbing,” “very upsetting,” caused her “emotional distress,” and made her “very concerned” for her safety. Andrews, 956 N.E.2d at 722. But in this case, Crystal offered no testimony at the hearing regarding the effect the contacts had on her. In fact, Crystal offered no testimony at all during the hearing. Where an inquiry is so dependent upon the victim’s perception and state of mind — as is the case when issuing a protective order on the grounds of stalking — Crystal’s lack of participation works only to diminish the record and hinder our review.

After a review of the record, we are left with the firm conviction that there was not sufficient probative evidence presented at the hearing to support a finding that the contacts in evidence would cause a reasonable person and in fact caused Crystal to feel terrorized, frightened, intimidated, or threatened. Therefore, there was not sufficient evidence to support the trial court’s issuance of a protective order.

Conclusion

Concluding there was insufficient evidence presented at the hearing to support the trial court’s issuance of a protective order, we reverse.

Reversed.

RILEY, J„ and KIRSCH, J., concur.

      . Counsel for both parties proceeded by stating a summary of the facts of the case, resulting in a back-and-forth exchange between the attorneys. Before making its ruling, the trial court asked Crystal and Justin whether everything said on their behalf was true, to which both gave a simple "yes” answer. The Indiana Rules of Trial Procedure and the Indiana Rules of Evidence neither explicitly allow nor prohibit this practice as a proper method of presenting evidence, but neither party objected to carrying on the hearing in this fashion. Suffice it to say, the line between evidence and argument was significantly blurred.

      . The email was sent February 1Í, 2013. Aside from the email, the only other documentary evidence admitted at the hearing was an investigative report by the Indiana Department of Child Services, investigating alleged abuse or neglect of a dependent by Crystal. The report concluded that the allegations were unsubstantiated and that the case should be closed.

      . Because the record contains no reference to ,or implication that a sex offense or act involving an animal was committed by Justin, we conclude that the protective order could not have been issued on those grounds. Thus, we will forgo any discussion of those portions of the statute.

      . After moving to admit the only email contained in the record, Crystal's counsel said of additional emails between the parties: “I don’t want to share all of them, Judge, because frankly it would, it would create, it would require you to create a new substantial file.” Tr. at 5. Had Crystal’s counsel chosen to share additional emails with the trial court, that would have almost certainly created a more substantial record for both the trial court and for our own review.

      . The bare assertions by Crystal's attorney that the contact was harassment and that Crystal felt harassed are similar to his characterization of the extent of contacts as "constant.” Those statements by her attorney were more akin to argument before the trial court than testimonial evidence. Without elaboration or explanation by her counsel or testimony from Crystal herself, her attorney’s statements in that vein are insufficient to warrant a finding that the contacts reached the level of stalking. One cannot expect to merely say the magic word “harassment” and instantaneously prove that stalking occurred; such practice would be a truly circular endeavor.


text:
    Phillip T. BILLINGSLEY, Appellant, v. STATE of Indiana, Appellee.
    No. 02S05-1303-CR-160.
    Supreme Court of Indiana.
    May 29, 2013.
   PUBLISHED ORDER VACATING TRANSFER

We heard oral argument in this case on May 9, 2013, at Merrillville High School before an audience that included approximately 400 high school students from the area, members of the Lake County Bar Association, and other citizens. The Court thanks the staff of Merrillville High School and the members of the Lake County Bar Association for their fíne work in organizing this event, and attorneys Thomas C. Allen of Fort Wayne, and Aaron J. Spola-rich and Stephen Creason, Deputies Attorney General, for their presentation of the argument.

In this case, a woman had telephoned police to report that the appellant, Phillip Billingsley, had been involved in certain unlawful conduct and that he was in a vehicle about to leave a certain parking lot. Based on this telephone call and other information, an officer was dispatched to the scene. The officer drew his gun and ordered Mr. Billingsley to place his hands on the roof of the vehicle until other officers arrived. When they arrived, Mr. Bill-ingsley was ordered to exit the vehicle and as he did so, officers smelled marijuana and saw marijuana in a bag on the front seat. Mr. Billingsley was charged with possession of marijuana. He contended that the police officers’ acting on the telephone call and pointing a gun at him during the investigation violated his rights under the federal and Indiana constitutions. The trial court, though, disagreed, and Mr. Billingsley was convicted of possession of marijuana as a class D felony. He appealed, but in a 2-1 decision, the Court of Appeals affirmed the conviction in a published opinion. See Billingsley v. State, 980 N.E.2d 402 (Ind.Ct.App.2012).

Billingsley then filed a petition to transfer jurisdiction asking that the Indiana Supreme Court review his case and reverse his conviction. On March 7, 2013, we issued an order granting' transfer and accepting jurisdiction over the case, and then, as indicated above, we heard the attorney for Mr. Billingsley and the attorneys for the State of Indiana present their respective arguments about the case. Thereafter, we discussed the case in more detail at our weekly conference. After again considering the points raised in the parties’ briefs and the points made by the attorneys at the oral' argument in Lake County, it is the view of a majority of the justices that the Court should not assume jurisdiction over this appeal, and that the Court of Appeals opinion be the final decision in this case. See Ind. Appellate Rule 58(B) (specifying that the denial of a petition to transfer terminates the litigation in this Court between the parties).

Accordingly, the March 7, 2013 order granting transfer of jurisdiction is hereby VACATED, and the appellant’s Petition to Transfer is DENIED. The Court of Appeals opinion published at Billingsley v. State, 980 N.E.2d 402 (Ind.Ct.App.2012), is hereby REINSTATED as Court of Appeals authority.

The Court DIRECTS the Clerk to certify this appeal as final and to send copies of this order to the Hon. Margret G. Robb, Chief Judge of the Indiana Court of Appeals; the Court of Appeals’ Administrator; and all counsel of record.

The Court further DIRECTS the Clerk to send a copy of this Order to LexisNexis and to Thomson/Reuters for publication on-line and in the bound volumes of this Court’s decisions.

PUBLISHED ORDER VACATING TRANSFER

By order dated March 7, 2013, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, including considering the points presented by counsel at oral argument and discussion among the Justices in conference after the oral argument, a majority of the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion reported as Billingsley v. State, 980 N.E.2d 402 (Ind.Ct.App.2012), be reinstated as Court of Appeals precedent. Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end.

The Court DIRECTS the Clerk to certify this appeal as final and to send copies of this order to the Hon. Margret G. Robb, Chief Judge of the Indiana Court of Appeals; the Hon. Wendy Davis, Judge, Allen Superior Court; the Court of Appeals’ Administrator; and all counsel of record.

The Court further DIRECTS the Clerk to send a copy of this Order to LexisNexis and to Thomson/Reuters for publication on-line and in the bound volumes of this Court’s decisions.

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

RUCKER, J., dissents to the denial of transfer and would reverse the trial court.