author: BAKER, Judge. BARNES, Judge,

text:
    C.B., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
    No. 49A04-1207-JV-379.
    Court of Appeals of Indiana.
    May 21, 2013.

      Victoria L. Bailey, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

In this case, a juvenile entered into a conditional admission agreement pursuant to which she admitted to committing what would have been class A misdemeanor Battery if committed by an adult. In exchange, the State agreed to dismiss a separate delinquency petition. Additionally, if the juvenile did not violate the agreement for ninety days, the remaining delinquency petition would also be dismissed. However, if the juvenile violated the agreement, the juvenile court would determine that the agreement had failed, and her case would proceed immediately to disposition.

Before the ninety days had expired, the juvenile was arrested for what would have been class A misdemeanor battery if committed by an adult. The juvenile court noted that probable cause had been found for the new offense and set the matter for a disposition hearing. Immediately before proceeding to disposition, however, the new delinquency petition was dismissed. Nevertheless, the juvenile court determined that the conditional admission agreement had failed and sentenced the juvenile to formal probation.

On appeal, the juvenile argues that she was denied due process when the juvenile court would not permit her to present evidence regarding probable cause after the new delinquency petition was dismissed. We conclude that before a juvenile court can determine that a conditional admission agreement has failed based upon probable cause that a new offense has been committed, the juvenile court must independently find probable cause instead of merely relying on the probable cause finding that authorized the filing of the delinquency petition. Additionally, a juvenile must be given a meaningful opportunity to challenge the existence of probable cause. Here, because the juvenile court relied solely on the finding of the probable cause that supported the filing of the new delinquency petition, and C.B. was not given a meaningful opportunity to challenge probable cause, we reverse.

FACTS

On March 9, 2012, nine-year-old L.H. had just exited her school bus when eleven-year-old C.B. punched her in the face, causing her pain. L.H. and C.B. were neighbors, and their families had been involved in ongoing disputes.

On March 23, 2012, the juvenile court ordered the State to file a delinquency petition under cause number 49D09-1203-JD-801 (JD-801), alleging that C.B. was a delinquent child for committing what would have been class A misdemeanor battery if committed by an adult. In the same order, the juvenile court also authorized the State to file a delinquency petition under cause number 49D09-1203-JD-799 (JD-799), which arose from allegations that C.B. and her brother struck a six-year-old in the face and ribs after the victim exited his school bus. Like the JD-801 petition, the JD-799 petition alleged that C.B. was a delinquent child for committing what would have been class A misdemeanor battery if committed by an adult.

On April 18, 2012, the State and C.B. entered into a conditional admission agreement. Under the agreement, C.B. entered an admission in JD-801 in exchange for the State’s dismissal of JD-799. The juvenile court was to take the agreement under advisement, and if C.B. did not violate the terms for ninety days, the State would dismiss the JD-801 petition. Some of the terms included in the agreement provided that C.B. shall not:

(a) commit any new offenses, (b) violate the terms of [her] probation (if currently on probation), (c) violate the conditions of [her] release ordered by the Court, or (d) commit any act that results in [her] receiving an in-school or out-of-school suspension or being suspended or expelled from school.

Appellant’s App. p. 39. Additionally, the agreement provided that if the juvenile court determined that there was probable cause to believe that C.B. had violated the agreement, including the provisions above, “the Court and parties will proceed to disposition and the terms of the plea agreement will be “ ‘Open Argument to the Court at the Dispositional Hearing.’ Id.

On April 25, 2012, the juvenile court noted that C.B. “has picked up a new offense, that has been authorized for filing” under cause number 49D09-1204-JD-1088 (JD-1088). Appellant’s App. p. 41. More particularly, C.B. had been arrested for what would have been class A misdemeanor battery if committed by an adult.

On May 28, 2012, the juvenile court held an initial hearing during which it noted that the court had found that probable cause existed under JD-1088 based on the very fact that it had been filed. Consequently, C.B. had violated the terms of her conditional admission agreement. The juvenile court set the matter for a disposition hearing on May 30, 2012.

Before proceeding to disposition on May 30, 2012, the State requested a continuance because the mother of the listed victims had contacted the State, stating that they would not make the hearing because of illness. The motion was denied, and the State moved to dismiss JD-1088.

The juvenile court informed C.B. that JD-1088 had been dismissed but that she still had to proceed to disposition from the conditional admission agreement. The probation department requested additional time to prepare its report, and the disposition hearing was set for July 6, 2012. Additionally, C.B.’s counsel requested to be heard on the issue of probable cause even though he conceded, “I understand at the last hearing based upon the finding of probable cause [in JD-1088] that [the] conditional plea agreement was -shown as failed.” Tr. p. 6. The juvenile court informed him that his arguments would have to wait until disposition stating, “if an additional charge is filed after the Court finds probable cause on top of a[ ] [conditional] agreement ... and then I have to subsequently hear [a] probable cause hearing, that’s fine I will do so, but tread lightly if you want to present another conditional to this Court.” Id. at 7.

At the July 6, 2012 disposition hearing, C.B.’s counsel again requested to present evidence regarding probable cause on cause number JD-1088. The juvenile court immediately questioned its jurisdiction to hear evidence regarding probable cause on a dismissed case, but counsel argued that while the State presented the probable cause affidavit, “we had not com-pletefd] any investigation as of the initial hearing on that case.” Tr. p. 11.

The State countered that probable cause was found at the initial hearing. The juvenile court again questioned its jurisdiction over a dismissed case but determined that even “assuming for the sake of argument that the Court does, for purpose of this hearing, I’m just going to deny the motion to reconsider probable cause as to the previously ... dismissed matter [JD-1088].” Id. at 16.

The juvenile court proceeded to disposition, where it incorporated the predisposition report providing for probation, counseling to be arranged for C.B.’s mother at Reach for Youth, and C.B. to stay away from the victims. C.B.’s formal probation was ordered to last until October 6, 2013. C.B. now appeals.

DISCUSSION AND DECISION

C.B. argues that she was denied due process when the juvenile court concluded that she had violated her conditional admission agreement after the court had prevented her from challenging probable cause in JD-1088. C.B. characterizes this as an issue of first impression pointing out that she “can find no authority on point” regarding whether she was denied due process before the trial court found that she had violated the conditional agreement. Appellant’s Br. p. 5.

Generally, the Due Process Clause of the Fourteenth Amendment to the United States Constitution applies to juveniles alleged to be delinquent children. In re Gault, 387 U.S. 1, 30, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). As stated above, because there is no authority directly on point, we must determine what process C.B. was due in the instant case.

Initially, we recognize that there is no statute authorizing a juvenile court to approve conditional admission agreements. However, our Supreme Court has recognized that the purpose of the juvenile system is vastly different from the criminal justice system. Jordan v. State, 512 N.E.2d 407, 408 (Ind.1987). Specifically, the purpose of the juvenile process is rehabilitation so that the juvenile will not become a criminal as an adult and; accordingly, juvenile courts should have a variety of options for juveniles who have delinquency problems. Id. Consequently, we approve of conditional admission agreements as an important tool to be used within the juvenile court’s sound discretion.

Moving forward to the process that is required before a juvenile court may determine that a conditional admission agreement has failed based upon probable cause that a new delinquent act has been committed, a juvenile court must find probable cause independently from the probable cause that authorized the filing of the delinquency petition. Put another way, a juvenile court may not rely solely on the fact that there was probable cause to authorize filing a delinquency petition.

Furthermore, a juvenile must be given the opportunity to challenge the finding of probable cause. In other words, the juvenile must be given a meaningful opportunity to be heard on the issue of probable cause.

Applying these principles to the instant case, at the May 23, 2012 pretrial hearing, the State requested that the juvenile court find that the conditional admission agreement had failed and to proceed to disposition pursuant to the terms of the agreement. Tr. p. 27. The State pointed out that the agreement stated that if there was probable cause to believe that she had violated the agreement, it “shall be shown as failed.” Id. at 28. The State argued that by “authorizing the cause number in, ending in 1088 the Court has found there to be probable cause.” Id. The juvenile court agreed. Id.

At the May 30, 2012 hearing, the State dismissed JD-1088 after the witnesses failed to appear. Tr. p. 4. Then, C.B., through counsel, requested to be heard on the finding of probable cause under JD-1088. Although the record is a little unclear, it appears that C.B. had at least one and maybe two witnesses prepared to testify at this hearing. Id. at 6. The juvenile court responded, “[p]resent it at Disposition. And don’t present an ... agreement like this again.” Id.

At the disposition hearing on July 6, 2012, C.B. again requested to present evidence regarding probable cause. Tr. p. 9. The juvenile court questioned its jurisdiction to grant this request on a dismissed case but permitted C.B.’s witness, K.Y., to testify. Id. at 11. K.Y. testified that she saw the alleged victim walking to her babysitter’s house and that she saw C.B. a short time later. Id. at 12-13. K.Y. stated that that she did not see any altercation between the two girls and that there was no evidence that an altercation had occurred. Id. at 13. On cross-examination, K.Y. testified that she watched the alleged victim walk to her residence without incident. Id.

After C.B. presented her evidence, the juvenile court again questioned its jurisdiction to reconsider probable over a dismissed case, ultimately concluding, “assuming for the sake of argument that the Court does, for purpose of this hearing, I’m just going to deny the motion to reconsider probable cause as to the previously disma, dismissed matter [JD-1088].” Tr. p. 16.

In light of our conclusions above, it was error for the juvenile court to rely solely on the finding of probable cause that authorized the filing of JD-1088. Likewise, although the juvenile court allowed C.B. to present evidence regarding probable cause, it denied her motion to reconsider probable cause even though C.B. clearly established a lack of probable cause. Indeed, the only evidence presented indicated that the incident did not occur. To be clear, we are not saying that anytime a juvenile presents evidence that tends to negate probable cause, a juvenile court must grant a motion to reconsider probable cause. However, under these facts and circumstances where the only evidence indicates a lack of probable cause, it is error to deny a motion to reconsider probable cause. Accordingly, C.B. was denied due process.

The judgment of the juvenile court is reversed.

RILEY, J., concurs.

BARNES, J., concurs with separate opinion.

BARNES, Judge,

concurring.

I concur fully that there is no evidence in this record that would have allowed the trial court to trigger the sanctions in the conditional agreement. I, too, emphatically support the use of agreements like the one used here. Prosecutors and juvenile defendants must have an opportunity to negotiate these sorts of agreements. It is clear to me, as the majority posits, that basic due process demands more than what occurred here. There was no delinquency petition on file here at the time the conditional agreement was voided. The only testimony about the alleged incident was exculpatory. Yet, because probable cause was found at one time on a since-dismissed delinquency petition, sanctions were imposed. Not fair, not right, not constitutional in my view.

I part with the majority when it says that, “a juvenile court may not rely solely on the fact that there was probable cause to authorize the filing of a delinquency petition” and suggests that a conditional agreement like the one here could never be revoked based only on the filing of another delinquency petition. There are numerous probation revocation cases, which I consider to be analogous to the present situation, establishing that in some cases a probable cause finding in another matter may be used to revoke probation. When a probation agreement says a probationer cannot be charged with any new offense, then the mere fact of the probationer being charged with a new offense can be enough to revoke probation. Pitman v. State, 749 N.E.2d 557, 561 (Ind.Ct.App.2001), trans. denied. But if an agreement specifically says probation will be revoked if a probationer commits a new offense, the mere fact of being charged with a new offense is not enough to prove that the defendant committed a new offense and that probation should be revoked. Figures v. State, 920 N.E.2d 267, 272-73 (Ind.Ct.App.2010). Also, where a new criminal charge has not been dismissed, a probable cause affidavit for the new charge may be introduced into evidence to prove that the probationer actually committed the new offense, but such an affidavit cannot be introduced where the new charge was later dismissed because of evidentiary problems. Id. at 272. It also is well-settled that probation cannot be revoked unless a hearing has been held at which the probationer has been able to present his or her own evidence, in particular with respect to whether he or she committed a new crime. Cooper v. State, 917 N.E.2d 667, 672 (Ind.2009).

Applying these cases to the present case, I would hold: (1) C.B.’s conditional agreement prohibited her from committing a new offense, not from being charged with a new offense, thus the mere fact that she was charged with a new offense was not enough to revoke the agreement; (2) because the new delinquency charge was dismissed, the State was required to present some independent evidence that the juvenile actually committed that offense aside from the fact that the charge was filed, and that evidence could not include the probable cause affidavit accompanying the dismissed petition; and (3) because the State presented no evidence that C.B. committed a new offense, it was erroneous for the trial court to revoke the conditional agreement.

I think the language used by the majority could be construed too broadly. I respectfully believe we must be careful not to overreach and that we should limit our holding to the particular facts of this case.

      . Ind.Code§ 35-42-2-1.

      . We held oral argument on April 8, 2013, in Indiana Court of Appeals courtroom in Indianapolis. We thank counsel for their informative and illustrative oral advocacy.

      . In the State's brief, it argued that this Court lacked jurisdiction insofar as a conditional admission agreement is not a final order. However, the State withdrew this position during oral argument.

      . While we acknowledge our colleague's concern that our holding is too broad, we emphasize that juveniles are not simply youthful adults. Indeed, they are children, and to the extent that they are children, their decision-making ability is underdeveloped. This is one of the reasons that the "juvenile court system is founded on the notion of parens patriae, which allows the court to step into the shoes of the parents.” In re M.T., 928 N.E.2d 266, 268 (Ind.Ct.App.2010) (holding that "a trial court may not modify a juvenile’s disposition without a hearing at which the State presents evidence supporting the allegations listed in the revocation petition”).

      . Our supreme court recently overruled Cooper to the extent it said probation could be revoked based on a showing of probable cause that a probationer committed a new offense, in conflict with the statutes governing probation that say a probation violation has to be proven by the higher standard of a preponderance of the evidence. See Heaton v. State, 984 N.E.2d 614, 617 (Ind.2013). The juvenile’s agreement here was not governed by any statute, however, so the higher burden of proof required by Heaton would not seem to apply in this case.


source: Caselaw Access Project

author: BROWN, Judge.

license: Public Domain

text:
    Charles PICKERING, Appellant-Plaintiff, v. CAESARS RIVERBOAT CASINO, LLC, d/b/a Horseshoe Southern Indiana, Appellee-Defendant.
    No. 31A01-1209-CT-429.
    Court of Appeals of Indiana.
    May 21, 2013.

      Bradley D. Harville, Louisville, KY, Attorney for Appellant.
    Jeffrey L. Hansford, Tyson P. Schroeder, Boehl Stopher & Graves, LLP, New Albany, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Charles Pickering appeals the trial court’s order granting summary judgment in favor of Caesars Riverboat Casino, LLC, d/b/a Horseshoe Southern Indiana (“Caesars”). Pickering raises one issue which we revise and restate as whether the court erred in granting Caesars’ motion for summary judgment. We affirm.

FACTS AND PROCEDURAL HISTORY

The relevant facts as designated by the parties follow. On the morning of January 22, 2011, Charles Pickering and two companions, Jim Bell and Rob Tackett, traveled to Caesars. Bell and Tackett intended to play in a slot tournament that day, and Pickering was “tagging along.” Appellant’s Appendix at 18. It was very cold that morning, and snow was on the ground. Before leaving, Pickering decided to wear a pair of “restaurant shoes” which are “[sjupposed to keep you from falling.” Id. at 20.

Bell normally parked on the rooftop level of Caesars’ parking garage and entered the casino by way of an entrance located on that top level, but on this occasion access to the ramp and the rooftop level was blocked by yellow caution tape, a saw horse, and three orange barrels due to the snow on the rooftop. Bell parked near the barricade, the men exited the vehicle, and they noted footprints in the snow leading up the ramp and accordingly assumed that the rooftop doors were open. The men then decided to proceed on foot up the ramp to enter the casino via the rooftop entrance, and in so doing, ducked underneath the yellow caution tape. Upon arriving at the rooftop entrance, one of the men tried to open the doors and discovered that they were locked, and they turned and walked back down the ramp. While ducking underneath the caution tape after returning from the rooftop, Pickering “turned” and then slipped and fell to the ground. Id. at 29. Pickering fractured his pelvis as a result of the fall.

On October 21, 2011, Pickering filed a complaint against Caesars in the Harrison County Superior Court. On March 19, 2012, Pickering gave deposition testimony. On May 25, 2012, Caesars filed a motion for summary judgment, memorandum of law in support, and designation of evidence, noting that Pickering’s complaint alleged that Caesars was negligent in maintaining its premises in a reasonably safe condition but that it “does not state that Mr. Pickering, and his companions, arrived at the casino garage and found the top floor of the parking garage barricaded and closed to all traffic due to the accumulation of snow from a weather event the preceding day” nor “does it relate how [Pickering] and his companions had to pass beyond the traffic barrels and underneath caution tape, that were barricading the ramp from traffic, to access the open-to-the-weather and snow-covered parking garage ramp where the fall occurred.” Appellant’s Supplemental Appendix at 5.

On June 21, 2012, Pickering filed a response and memorandum of law in opposition to Caesars’ motion for summary judgment which contained a recitation of facts stating that certain photographs Caesars produced pursuant to Pickering’s request for production of documents, as well as surveillance video showing Pickering’s fall, “reveal that [Pickering’s] memory of this event to which he testified in his deposition is mistaken in two very important respects: 1) Access to the top level was far from being completely blocked off.... And, 2) [Pickering] was not bending over to go underneath the caution tape when he fell....” Id. at 40. On July 20, 2012, Caesars filed its reply brief in support of summary judgment in which it noted at the outset that Pickering’s response “fails to create a material issue of fact because it premises its argument on [a] mischaracter-ization of the unambiguous facts,” specifically that “at the time of his injury part of the ramp was open, and that [Pickering] was mistaken in his sworn deposition testimony wherein he stated the ramp was completely blocked off and he fell while trying to get under the caution tape.... ” Id. at 94. Caesars stated that Pickering cited “to photographs from an incident report that was created for a different patron [named David Sells], at a different time, and is arguing the conditions were the same fourteen hours later.... ” Id. Caesars also noted that “the barricades can be clearly seen on the surveillance video which [had] been produced to” Pickering. Id. Caesars attached as Exhibit C a work order which noted that, about four hours after Sells’s fall and nine hours prior to Pickering’s fall, a Caesars maintenance worker “spread ice melt on top level ramp CPG. rope off ramp.” Id. at 104.

The court held a summary judgment hearing on August 28, 2012, in which arguments were presented. Caesars displayed a picture “cut from the video” of Pickering’s fall and noted for the court that it showed “barrels with reflective tape ... saw horses and ... yellow caution tape which [had] been extended all the way across not only the driveway but two sidewalks on both sides of the driveway.” Transcript at 9. Pickering replied that the picture was inconclusive as to where the caution tape terminated based on the angle displayed. Pickering also argued at the hearing that even if Pickering did duck underneath the caution tape, that did not end the matter because Caesars knew of Sells’s fall about fourteen hours earlier and “[i]nstead of moving the snow and ice all they did was string the tape further” despite the fact that there were “footprints all over this ramp” so that “clearly at the time of [Pickering’s] fall there was evidence of pedestrian traffic going up and down that ramp.... ” Id. at 23. Pickering also noted that Caesars did not post signage indicating either that the ramp was closed or that the top entrance was closed. The court also viewed a video of the fall which Caesars had designated as evidence. At the conclusion of the hearing, the court granted Caesars’ motion for summary judgment.

ISSUE AND STANDARD OF REVIEW

The sole issue is whether the court erred in granting Caesars’ motion for summary judgment. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind.2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmov-ant. Mangold, 756 N.E.2d at 973. Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. We must carefully review a decision on summary judgment to ensure that a party was not improperly denied its day in court. Id. at 974. In reviewing a grant of summary judgment we face the same issues as the trial court and follow the same process. Klinker v. First Merchs. Bank, N.A., 964 N.E.2d 190, 193 (Ind.2012). Under Trial Rule 56(C), the moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Id. If it is successful, the burden shifts to the nonmoving party to designate evidence establishing the existence of a genuine issue of material fact. Id.

“In order to prevail on a claim of negligence, a plaintiff is required to prove: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff proximately caused by the breach.” Wabash Cnty. Young Men’s Christian Ass’n, Inc. v. Thompson, 975 N.E.2d 362, 365 (Ind.Ct.App.2012) (quoting Peters v. Forster, 804 N.E.2d 736, 738 (Ind.2004)), reh’g denied, trans. denied. “In negligence cases, summary judgment is ‘rarely appropriate.’” Id. (quoting Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind.2004)). “This is because negligence cases are particularly fact sensitive and are governed by a standard of the objective reasonable person — one best applied by a jury after hearing all of the evidence.” Id. (quoting Rhodes, 805 N.E.2d at 387). “Nevertheless, a defendant is entitled to judgment as a matter of law when the undisputed material facts negate at least one element of the plaintiffs claim.” Id.

DISCUSSION OF PREMISES LIABILITY; ARGUMENTS OF PARTIES

Pickering’s negligence claim is based on premises liability. The law is well established that a person entering upon the land of another comes upon the land as an invitee, a licensee, or a trespasser. Christmas v. Kindred Nursing Ctrs. Ltd. P’ship, 952 N.E.2d 872, 878 (Ind.Ct.App.2011). Thus, the first step in resolving a premises liability case is to determine the plaintiffs status. Id. The status then defines the duty owed from the landowner to the visitor. Id. “As a general rule, ‘[a] person’s status on the land, along with the duty owed, is a matter left for determination by the trial court, not the jury.’” Winfrey v. NLMP, Inc., 963 N.E.2d 609, 613 (Ind.Ct.App.2012) (quoting Dunifon v. Iovino, 665 N.E.2d 51, 55 (Ind.Ct.App.1996), reh’g denied, trans. denied); see also Morningstar v. Maynard, 798 N.E.2d 920, 922 (Ind.Ct.App.2003) (“[Wjhen the question is one of the plaintiffs visitor status, the issue is a matter of law and is proper for summary judgment.”); but see Kopczynski v. Barger, 887 N.E.2d 928, 931 (Ind.2008) (“[T]he existence of a duty is ordinarily a question of law for the court to decide, but it may turn on factual issues that must be resolved by the trier of fact.”) (citing Rhodes, 805 N.E.2d at 386 (“While it is clear that the trial court must determine if an existing relationship gives rise to a duty, it must also be noted that a factual question may be interwoven with the determination of the existence of a relationship, thus making the ultimate existence of a duty a mixed question of law and fact.”); Restatement (Seoond) of Torts § 332 emt. 1 (1965) (“Since the status of the visitor as an invitee may depend upon whether the possessor should have known that the visitor would be led to believe that a particular part of the premises is held open to him, the question is often one of fact for the jury, subject to the normal control which the court exercises over the jury’s function in such matters.”)).

An invitee can be categorized as a public invitee, a business visitor, or a social guest. Christmas, 952 N.E.2d at 879 (citing Burrell v. Meads, 569 N.E.2d 637, 642 (Ind.1991), reh’g denied). Here, Pickering claims that he was a business visitor at the time of his fall. The Indiana Supreme Court has adopted Restatement (Second) of Torts Section 332 to define a “business visitor” as “a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of land.” Id. (citing Taylor v. Duke, 713 N.E.2d 877, 881 (Ind.Ct.App.1999) (citing Burrell, 569 N.E.2d at 637)). Licensees and trespassers are defined as those who enter the land of another for their own convenience, curiosity, or entertainment and take the premises as they find them. Id. Unlike trespassers, however, licensees have a privilege to enter or remain on the land by virtue of the landowner’s permission or sufferance. Id. Also, this court has previously observed comments to the Restatement (Second) of Torts, noting that the comments to Section 330, which defines “licensee,” provides that “the word ‘consent’ or ‘permission’ indicates that the possessor is in fact willing that the other shall enter or remain on the land, or that his conduct is such as to give the other reason to believe that he is willing that he shall enter, if he desires to do so.” Id. Further, the comments to Section 332, which defines “invitee,” clarifies the difference between invitation and permission by stating: “An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so.” Id.; see also Rhoades v. Heritage Invs., LLC, 839 N.E.2d 788, 792 (Ind.Ct.App.2005) (citing the comments to the Restatement (Second) of Torts §§ 330, 332 with approval), reh’g denied, trans. denied.

Pickering argues that the court erred in granting summary judgment because “the caution tape did not excuse Caesars’ duty to make its premises safe from the hazardous condition of ice and snow, given the visible footprints in the area that led Pickering ... to believe that other customers were walking up the ramp and that the top entrance was open.” Appellant’s Brief at 11. Pickering maintains that there is a general duty for business owners to remove ice and snow from their premises, that whether this duty has been breached is generally an issue for the trier of fact, and that “there is no issue that Caesars had discovered the condition of ice and snow on the ramp of its parking garage,” noting that another customer “had slipped and fallen in the exact same area some 14 hours earlier.” Id. at 11-12. Pickering contends that Caesars “had a duty to its customers beyond merely stringing the caution tape across the entire width of the ramp after Sells’ fall” because “there remained numerous footprints in the snow going up and down the ramp in the area cordoned off by the caution tape” which led to the logical conclusion “that other patrons had been walking up and down the ramp despite the presence of the caution tape, and that the entrance on the top level of the parking garage that they customarily used was open when in fact it was closed.” Id. at 12. Pickering also asserts that Caesars therefore breached its duty to exercise reasonable care “by failing to clear the ramp of ice and snow,” or, “[i]n the alternative ... breached a duty to warn its customers that the top entrance to the casino was closed, which would have alerted its customers to ignore the footprints ....” Id. at 12-13.

Caesars begins by noting that “[t]he facts in this case are not in dispute” in which Pickering, a business invitee, “decided to duck underneath a barricade to access a portion of the parking garage that was undisputedly closed to vehicular traffic because it was undisputedly covered in snow.” Appellee’s Brief at 3-4. Caesars argues that “[t]he only question pertinent to this case is whether Caesars, as a matter of law, had fulfilled its duty to its patrons when it cordoned off the exposed levels of the parking garage with caution tape and traffic barrels.” Id. at 4. Caesars also asserts that the question of a visitor’s status is a matter of law proper for summary judgment, and here, when Pickering crossed the caution tape his status changed from that of a business invitee to a licensee because he exceeded the scope of his invitation. Caesars maintains that “[t]here is nothing usual and/or customary about crossing beneath caution tape and other traffic control devices to access a portion of the property that is visibly covered with an icy hazard,” and its “invitation cannot be reasonably believed to extend to all of the property.” Id. at 7.

Caesars also argues that “[tjhere is no question Mr. Pickering had actual knowledge of the condition of the property” and he therefore incurred the risk when he proceeded to cross under the caution tape and embark upon the ramp. Id. at 10. Further, Caesars contends that, even if Pickering were to be considered an invitee, it did not breach its duty to Pickering because he “was fully aware of the need for caution” which “was so obvious that it was •written on the yellow tape that [he] ducked under to access this portion of the property.” Id. at 11.

In his reply brief, Pickering argues that “the ‘footprints in the snow1 are the key reason why Caesars had a duty to the unwary patron to post some kind of additional notice, at the very least, that the top entrance to the ramp was closed.” Appellant’s Reply Brief at 4. He contends that the “literally dozens if not hundreds of footprints [] suggested to Mr. Pickering and his companions that use of the ramp was clearly ‘contemplated’ at the time he fell, just as this same ramp was in use some fourteen (14) hours earlier when Mr. Sells fell.” Id. at 5. He also asserts that he “had no way of knowing that the yellow caution tape had been strung across the ramp after those footprints were made in the snow” and that “it was anything but clear to him and his companions that the yellow caution tape was intended to close off pedestrian traffic as well as vehicular traffic.” Id. Pickering finally argues that “[a]ll Caesars had to do to save [him] from a broken hip was to post a sign at the bottom of the ramp that the top entrance was closed” and that “[u]nder the circumstances, it had a duty to do at least that much.” Id.

ANALYSIS

On appeal, Pickering concedes that the designated evidence demonstrates that he, along with Bell and Tackett, decided to exit the enclosed portion of the parking garage and traverse a snow-covered ramp up to the rooftop level in order to enter the casino from the rooftop entrance and, in so doing, ducked underneath and crossed yellow caution tape which the casino had placed in order to prevent traffic from accessing the rooftop level. The men apparently deduced that the doorway was open due to the presence of footprints in the snow leading from the rooftop entrance and down the ramp. When the three men arrived at the doors they realized that the doors were locked, and they turned around and headed back down the ramp. As Pickering was ducking underneath the caution tape on his way down, he fell and fractured his pelvis.

At the time when Pickering came into Caesars’ parking garage and exited the vehicle which had been parked in an enclosed portion of the garage, he was undoubtedly a business visitor invitee. As argued above by Caesars, however, “even when dealing with an invitee, the landowner’s duty of care is not limitless.” Rider v. McCamment, 938 N.E.2d 262, 268 (Ind.Ct.App.2010). One way in which an invitee may lose his or her status is when the invitee exceeds the scope of the invitation. Id. (citing Markle v. Hacienda Mexican Rest., 570 N.E.2d 969, 974 (Ind.Ct.App.1991)). Indeed, the Indiana Supreme Court, in Burrell, specifically instructed that a person is an invitee if “the possessor [of land] encourages another to enter to further his own purpose such that there arises the implicit assertion that reasonable care has been exercised to make the place safe for the one who came for that purpose.” Burrell, 569 N.E.2d at 641 (emphases added). This court has additionally observed that “to retain invitee status, ‘the invitee must use the owner’s premises in the usual, ordinary, and customary way.’” St. Mary’s Med. Ctr. of Evansville, Inc. v. Loomis, 783 N.E.2d 274, 282 (Ind.Ct.App.2002) (quoting Markle, 570 N.E.2d at 974 (quoting 65 C.J.S. Negligence § 63(52) (1966))) (emphasis added).

In St. Mary’s, Dr. Loomis was a neurosurgeon in private practice who had surgery privileges at the defendant Hospital. Id. at 277. On the date in question, Dr. Loomis was visiting patients in the Hospital when he stopped at a pantry to pour himself a cup of coffee. Id. “Dr. Loomis, other physicians, and the Hospital’s employees regularly used the pantry for coffee breaks.” Id. While in the pantry, Dr. Loomis slipped and fell, injuring his left elbow. Id. at 277-278. Following a jury trial, the Hospital submitted final jury instructions including an instruction defining the term “licensee,” and the court refused to tender the proposed instruction, instead instructing “the jury that Dr. Loomis was an invitee to whom the Hospital owed a duty of reasonable care.” Id. at 278.

On appeal, the Hospital challenged the trial court’s determination of Dr. Loomis’s status, arguing that Dr. Loomis was a licensee when he entered the pantry rather than an invitee. Id. at 281-282. Specifically, the Hospital argued that, although Dr. Loomis was an invitee prior to entering the pantry, he “exceeded the scope of his invitee status upon entering the pantry, as signs posted on the pantry doors read ‘Employees Onljf ” and that “Dr. Loomis was not an employee of the Hospital....” Id. at 282.

We began our analysis of the issue by noting that “the ‘issue’ of a plaintiffs status on the land does not warrant such an instruction but is an issue solely for the trial court, as this court has held.” Id. at 282. We observed, on that score, that the evidence “showed that the signs on the pantry doors were not meant to exclude the physicians” and that rather they “were ‘a courtesy [sic] way of telling families, patients, and visitors that this is an area that you should not be in.’ ” Id. We also noted that Dr. Loomis had been using the pantry for years and had never been asked to leave, and we accordingly held that “it was ‘usual, ordinary, and customary’ for physicians to use the pantry” and “that an invitee instruction was warranted.” Id. at 283.

Here, by contrast, we find that Caesars intended to exclude its patrons including Pickering from accessing the snow-covered ramp and rooftop level of the parking garage and that Pickering exceeded the scope of his invitee status when he entered the restricted area. Indeed, the designated evidence reveals that Caesars placed not only a saw horse and barrels to prevent vehicular traffic from accessing the ramp, but also it strung yellow caution tape spanning the length of the entrance to prevent pedestrian traffic. Pickering and his companions ducked underneath the barricade in order to access the ramp area, which is not usual, ordinary, or customary when entering upon business premises. As the Indiana Supreme Court instructed in Burrell, above, the implicit assertion that reasonable care has been exercised to make a premises safe attendant to invitee status stems from a land possessor’s encouragement that another enter onto his or her premises. See Burrell, 569 N.E.2d at 641. Thus, it can hardly be held that a person may enjoy invitee status when that person crosses onto or enters an area which the land possessor has specifically and visibly restricted. See also Winfrey, 963 N.E.2d at 612-613 (“All agree that Winfrey first entered Appellees’ property as an invitee. The question is whether Winfrey’s actions following his doctor’s appointment transformed him into a licensee, lowering Ap-pellees’ standard of care to him. ‘[E]ven though a visitor may be an invitee when he comes on to the property, his status may change to that of a licensee while he is on the premises if the use to which he puts the property does not correspond to the owner’s reason for holding the property open.’ ”).

When Pickering ducked underneath the caution tape and proceeded up the ramp, he lost his status as an invitee and was a mere licensee. Being a licensee, Caesars owed Pickering a “duty to refrain from willfully or wantonly injuring him or acting in a manner to increase his peril.” Id. at 612. Pickering has not designated any evidence to demonstrate that Caesars either willfully or wantonly injured him, or that it did anything to increase his peril. Indeed, if the peril in this case is the presence of snow and ice on the ramp and rooftop level, then Caesars’ actions decreased Pickering’s level of peril by posting a barricade which should have alerted him to the presence of the snow and ice. Thus, we conclude that the trial court did not err when it granted Caesars’ motion for summary judgment.

CONCLUSION

For the foregoing reasons, we affirm the court’s grant of summary judgment in favor of Caesars.

Affirmed.

RILEY, J., and BRADFORD, J., concur.

      . A copy of Pickering’s complaint is not in-eluded in the record.

      . Caesars’ reply also contained the following statement:
      Although not relevant to the instant action, Caesars would represent to the Court the ramp area was, indeed, not fully cordoned off until after the Sells incident on the day before Mr. Pickering's accident. Although not relevant, testimony would reveal the ramp was not fully barricaded initially because there were vehicles parked on the top of the garage and a lane was left open so those vehicles could exit the facility. However, the ramp area was fully cordoned off after the accident the day before Mr. Pickering's fall, as evidenced by Mr. Pickering’s testimony, the video, Caesarsf] answers to discovery, and the work order that was generated the evening before Mr. Pickering’s fall to accomplish the closure.
      Appellant's Supplemental Appendix at 97.

      . To the extent Pickering suggests that the presence of footprints in the snow leading up and down the ramp should preserve his status as an invitee, we disagree. First, we agree with Caesars that such footprints suggest only that there had been foot traffic present at one time and did not necessarily suggest that the ramp was currently open to foot traffic. Also, we note that even if the footprints suggested that others had traversed the ramp following the placement of the caution tape, Pickering and his companions nevertheless chose to cross a barricade and proceed up the ramp despite the presence of alternative entrances which were not cordoned off. The simple fact that others may have made a similar calculation as Pickering and his companions to forego their invitee status and cross a barricade at a place of business does not require a conclusion that crossing the barricade should be viewed as usual, ordinary, and customary.
      Further, we note that even if Pickering was still considered an invitee when he crossed the barricade, summary judgment for Caesars would still be appropriate because the trial court could decide as a matter of law that Pickering incurred the risk of falling. “Incurred risk has been generally defined as 'the conscious, deliberate and intentional embarkation upon the course of conduct with knowledge of the circumstances.... Incurred risk contemplates acceptance of a specific risk of which the plaintiff has actual knowledge.’” St. Mary's Byzantine Church v. Mantich, 505 N.E.2d 811, 814 (Ind.Ct.App.1987) (quoting Power v. Brodie, 460 N.E.2d 1241, 1243 (Ind. Ct.App.1984)), reh’g denied, trans. denied. As explained in Mantich :

      [w]here the evidence on the question of assumed or incurred risk presents an issue of fact, that issue is for the jury, but where there is no real dispute in the evidence bearing on that question, it is for the court to say as a matter of law that the plaintiff assumed or incurred that risk.

        Id. (quoting Pierce v. Clemens, 113 Ind.App. 65, 77, 46 N.E.2d 836, 841 (1943)). Also, "[ajctual knowledge is the prerequisite element of incurred risk, and therefore the trial court must employ a subjective analysis to determine whether the actor actually knew of and voluntarily accepted the risk.” Id. (citing Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552 (Ind.1987)).
      Here, Pickering testified at his deposition that he decided to wear "restaurant shoes” because snow had recently fallen, he knew that snow and ice were slippery, and the shoes were “[sjupposed to keep you from falling.” Appellant’s Appendix at 20. He also testified that he observed snow in the walkway as he started walking up the ramp. Id. at 27. Thus, we find that the evidence clearly establishes that Pickering knew that he was at risk of falling when he decided to duck underneath the caution tape and venture up the snow-covered ramp. Therefore, Pickering incurred the risk of his injuries as a matter of law. See Mantich, 505 N.E.2d at 815 (holding that the evidence "clearly” established that the plaintiff incurred the risk of falling on a steep ramp as a matter of law when she "voluntarily continued to use the ramp”).


author: BAKER, Judge.

text:
    Mark L. JORDAN, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 45A04-1212-CR-646.
    Court of Appeals of Indiana.
    May 22, 2013.

      Stephen T. Owens, Public Defender of Indiana, Lloyd E. Sally, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

In this case, before a criminal defense attorney could file a notice of appeal on behalf of his client, he was fighting for his life against a recurrence of cancer to which he succumbed only a few months later. His client, appellant-petitioner Mark Jordan, who had been ill-informed and apparently mistaken regarding the details and status of his appeal, filed a petition for relief under Indiana Post-Conviction Rule 2, seeking to file a belated appeal. The trial court denied this petition without a hearing or specific findings.

We conclude that this was error, inasmuch as Jordan was without fault in failing to file a timely notice of appeal in light of his attorney’s terminal illness. Accordingly, we reverse and remand for further proceedings consistent with this appeal.

FACTS

On January 27, 2010, a jury convicted forty-one-year-old Jordan of five counts of class C felony burglary, two counts of class D felony theft, and two counts of class D felony auto theft. On June 4, 2010, Jordan was sentenced to a twenty-three-year executed sentence. After the trial court imposed the sentence, the following colloquy occurred between the trial court, Jordan, and Jordan’s attorney, Frederick Work:

[THE COURT:] If you wanted to appeal, you would have to do it within thirty days of today’s date. If you do not, your appeal rights will forever be barred. In the event you did wish to appeal and could not afford a lawyer to represent you, the Court would appoint a lawyer to represent you at [no] cost to you (sic). Do you wish to appeal, sir?
[JORDAN:] Yes.
[MR. WORK:] Judge, we have thirty days to make that determination. And if we could, I would ask that we be allowed to make that determination after consultation between the two of us.
[THE COURT:] All right (sic). He just indicated he wanted to. Were you going to represent him should he choose to appeal or is he going to require [an] appellate public defender?
[MR. WORK:] At this point, I’ve talked to the family. If there is going to be an appeal, I would handle it.
[THE COURT:] If there is going to appeal what?
[MR. WORK:] If there is going to be an appeal, at this point, I’ve talked to the family and the family is going to retain me for that purpose. However, that decision had not been made yet, Judge.

Appellant’s App. p. 471-72.

Following Jordan’s sentencing, Work requested additional payment to continue representing Jordan throughout the appeal. Barbara Jordan, Jordan’s mother, paid Work the additional funds to retain Work to pursue the appeal.

On July 29, 2010, Work was admitted into the University of Chicago Hospital for surgery to treat a recurrence of cancer. Before Work’s admission to the hospital, he had to undergo several weeks of testing to prepare for the surgery.

On August 29, 2010, Work was transferred to the Progressive Rehabilitation Center in Merrillville but was transferred to Methodist Hospital on September 13, 2010, where he passed away.

During the time that Work was battling cancer, the trial court recorded no significant activity on Jordan’s case following the sentencing hearing until August 24, 2010. On that day, the trial court received a letter from Jordan sent from the Westville Correctional Facility, inquiring whether an appeal had been filed on his behalf. In the letter, Jordan stated that he thought that his family had not retained Work, reminded the trial court that he had stated that he wanted to appeal at his sentencing hearing, and urged the trial court to appoint a public defender if Work had not filed an appeal on his behalf.

The trial court denied Jordan’s requests. An August 24, 2010 entry in the Chronological Case Summary indicates that the trial court notified Jordan that he had been advised during his sentencing hearing that his requests must have been made within thirty days.

On September 23, 2010, Jordan filed a pro se motion to compel production of attorney files, seeking to obtain the documents within his file. Between this filing and January 2012, Jordan filed various pro se motions and requests for documents. On January 19, 2012, Jordan filed his pro se petition for post-conviction relief, which the trial court forwarded to the public defender.

On October 29, 2012, Jordan, now represented, filed his petition for postconviction relief, seeking permission to file a belated notice of appeal. Jordan attached to his petition an affidavit from his mother, Barbara, stating that she had paid Work to represent Jordan through the appeal process. Jordan also included an affidavit from Beverly Work, his former attorney’s widow, averring to Work’s struggle with cancer during the summer of 2010 until his passing in September 2010.

On November 29, 2012, the State filed its answer, and without a hearing or specific findings, the trial court issued an order denying Jordan’s petition for postcon-viction relief. Jordan now appeals.

DISCUSSION AND DECISION

I. Standard of Review

Generally, this Court defers to the trial court’s discretion regarding whether a petitioner has met his burden under Post-Conviction Rule 2. Baysinger v. State, 835 N.E.2d 223, 224 (Ind.Ct.App.2005). However, where the trial court does not hold a hearing before denying a Post-Conviction Rule 2 Petition, “the only basis for its decision was that contained in the paper record attached to the petition. Because we are reviewing the same information that was available to the trial court, we owe no deference to its findings.” Id. Therefore, this Court’s review is de novo. Id.

II. Post-Conviction Rule 2

Indiana Post-Conviction Rule 2(1) provides in relevant part:

An eligible defendant convicted after a trial or plea of guilty may petition the trial court for permission to file a belated notice of appeal of the conviction or sentence if;
(1) the defendant failed to file a timely notice of appeal;
(2) the failure to file a timely notice of appeal was not due to the fault of the defendant; and
(3) the defendant had been diligent in requesting permission to file a belated notice of appeal under this rule.
If the trial court finds that [these requirements] are met, it shall permit the defendant to file the belated notice of appeal. Otherwise, it shall deny the petition.

At the outset, we observe that the State does not dispute that Jordan was diligent in requesting permission to file his appeal. Thus, the sole issue with which we are presented was whether Jordan’s failure to file a timely notice of appeal was his fault.

Factors affecting whether a petitioner is responsible for the delay include whether the court informed the petitioner of his appellate rights, whether the petitioner committed an act or omission that contributed to the delay, the petitioner’s level of awareness of his procedural remedy, his age, education, and familiarity with the legal system. Baysinger, 835 N.E.2d at 224. Nevertheless, each case must be decided on its own facts. Tolson v. State, 665 N.E.2d 939, 942 (Ind.Ct.App.1996).

In the instant case, at the conclusion of Jordan’s sentencing hearing, the trial court advised Jordan that he had thirty days to appeal its decision and asked Jordan if he desired to appeal. Appellant’s App. p. 471. Jordan responded that he wanted to appeal, but Work intervened, stating that they had thirty days to make that determination and that he would like that time to discuss the possibility of an appeal with Jordan and his family, Id. at 471-72.

Then Jordan was imprisoned, appellant’s app. p. 4, and it appears that he was not adequately informed regarding the status of his appeal. This is evidenced by the fact that although Jordan’s mother paid Work to appeal Jordan’s case, Jordan was not aware of this as he indicated in his August 24, 2010 letter to the trial court in which he requested a public defender. Id. at 538, 542. And while Jordan’s family thought that Work was preparing Jordan’s appeal and Jordan was imprisoned, Work was actually fighting a reoccurring cancer which forced him to undergo surgery in July 2010, and which eventually took his life in September 2010. Id. at 588-41. In light of these facts, we conclude that Jordan was without fault in failing to file a timely notice of appeal.

Nevertheless, the State argues that based on the factors listed above, the trial court did not err in denying Jordan’s petition. More particularly the State highlights the fact that the trial court informed Jordan of his appellate rights, including his right to a court-appointed attorney if he could not afford one. Additionally, the State focuses on the fact that there is no evidence that Jordan failed to understand those rights. Furthermore, the State points out: “As a habitual offender with ten prior felony convictions, Jordan was quite familiar with the legal system. He was also forty-one years old at the time of sentencing, and had completed a G.E.D.” Appellee’s Br. p. 8 (internal citations omitted).

Although a rigid application of those factors to the facts of this case may lead to the result reached by the trial court, as stated above, each case must be decided on its own facts. To be sure, those factors certainly excluded the indispensable fact that Jordan’s attorney became terminally ill almost immediately following Jordan’s sentencing hearing. In short, we decline to say that a post-conviction petitioner is at fault for failing to file a timely notice of appeal when his attorney becomes terminally ill shortly after the sentencing hearing, and the petitioner is incarcerated.

The judgment of the post-conviction court is reversed, and this cause is remanded for further proceedings consistent with this opinion.

MAY, and MATHIAS, JJ., concur.


author: MAY, Judge.

text:
    In re the PATERNITY OF J.T. and I.T., Minor Children, R.A.P., Mother, Appellant-Respondent, v. C.D.T., Father, Appellee-Petitioner, In re the Support of C.R.T., Minor Child, R.A.P., Mother, Appellee-Petitioner v. C.D.T., Father, Appellant-Respondent.
    No. 46A05-1210-JP-544.
    Court of Appeals of Indiana.
    May 24, 2013.

      Stephan A. Kray, LaPorte, IN, Attorney for Appellant.
    Terry K. Hiestand, Hiestand Law Office, Chesterton, IN, Attorney for Appel-lee.
   OPINION

MAY, Judge.

R.P. (Mother) appeals the order granting sole legal and physical custody of J.T., I.T., and Co.T. to CT. (Father). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 14, 2010, the juvenile court entered an order establishing Father as father of three children born to Mother: Co.T., born July 9, 2002; J.T., born March 4, 2004; and I.T., born February 24, 2008. That order also granted Father parenting time on a graduated scale, beginning with weekly six hour visits every Saturday, then escalating over a period of ten months to parenting time pursuant to the Indiana Parenting Time Guidelines. The court also ordered Father to pay $80 a week in child support and an extra $15 per week to satisfy an arrearage.

On July 30, 2010, and January 26, 2012, Father filed petitions to show cause, alleging Mother was in contempt of the parenting time order. On April 5, 2012, Father again alleged contempt, and petitioned for modification of custody. The juvenile court found Mother in contempt for denying parenting time, ordered Mother to pay Father $963.05 for attorney fees, and awarded Father immediate sole legal and physical custody of children.

DISCUSSION AND DECISION

When a party requests modification of custody, we review the court’s decision for an abuse of discretion, because we give wide latitude to our trial court judges in family law matters. Julie C. v. Andrew C., 924 N.E.2d 1249, 1256 (Ind.Ct.App.2010). A petitioner seeking modification has the burden to demonstrate the existing custody arrangement needs to be altered. Id. As we undertake our review, we neither reweigh the evidence nor assess witness credibility. Id. Rather, we consider only the evidence and inferences most favorable to the trial court’s judgment. Id.

Our legislature has defined the circumstances under which a custody order may be modified:

(a) The court may not modify a child custody order unless:
(1) the modification is in the best interests of the child; and
(2) there is a substantial change in one (1) or more of the factors that the court may consider under section 8 and, if applicable, section 8.5 of this chapter.
(b) In making its determination, the court shall consider the factors listed under section 8 of this chapter.

Ind.Code § 31-17-2-21 (hereinafter “Section 21”). Section 21 requires a court to “consider the factors listed under section 8 of this chapter,” but in ordering a modification of child custody a trial court is not, absent a request by a party, required to make special findings regarding the continuing and substantial changes in the parties’ circumstances. Clark v. Clark, 404 N.E.2d 23, 35 (Ind.Ct.App.1980).

The factors the court must consider under Ind.Code § 31-17-2-8 (hereinafter “Section 8”) include:

(1) The age and sex of the child.
(2) The wishes of the child’s parent or parents.
(3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling; and
(C)any other person who may significantly affect the child’s best interests.
(5) The child’s adjustment to the child’s:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.

Mother argues Father did not present evidence to prove a substantial change in any of the circumstances listed under Section 8, and thus the juvenile court abused its discretion when it granted Father sole legal and physical custody of children. We disagree.

The juvenile court found, in granting Father’s petition to modify custody:

3. Evidence established that on a continuing basis since the entry of this court’s parenting time [visitation] orders on April 14, 2010, [Mother] has engaged in a continuing pattern of denial of parenting time to [Father] with his children. That pattern resulted in the filing of three separate contempt petitions by [Father],
4. That pattern of behavior has been particularly pronounced and egregious since December of 2011. Since December 1 of 2011 through the date of hearing on July 11, 2012, the extent of parenting time permitted by [Mother] with his three children was as follows:
a) A six-minute telephone conversation on Christmas Day, 2011;
b) eight minutes with the children outside [Mother’s] residence on March 4, 2012, [J.T.’s] birthday; and
c) six minutes with the children outside [Mother’s residence] on July 9, 2012, which was [Co.T.’s] birthday.
5. Stated otherwise, [Father] was denied parenting time on 31 separate occasions, including half of the Christmas break in 2011, Father’s Day, 2012, Independence Day, 2012, as well as any meaningful period between two of the children’s birthdays.
8. It has been established by a preponderance of the evidence that there has been a substantial change in the interrelationship of [Mother] vis-á-vis [Father], to wit: she so despises and distrusts him that she has exhausted her limited coping skills and, as a result, acted in complete defiance of the existing parenting time orders over an extended period of time. Her repetitive failure to permit visitation is the product of a mindset not likely to change, given her demeanor, testimony and past failure to honor her assurances — in the face of prior contempt petitions — that she would abide by the parenting time order.
9. As a consequence it is in the best interests of the three children that the existing custody order be modified; otherwise, the children will be denied a meaningful relationship with their father.

(App. at 10-11.)

Father presented evidence Mother routinely denied him the parenting time to which he was entitled. This establishes a substantial change in the interrelationship of the parties, which permits a modification in custody. See In re Marriage of Cain, 540 N.E.2d 77 (Ind.Ct.App.1989) (modification of custody affirmed based on breakdown of communication and cooperation between the parties regarding parenting time). Accordingly, we affirm the juvenile court’s decision to place the children with Father.

Affirmed.

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


author: DICKSON, Chief Justice.

text:
    Brian Scott HARTMAN, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
    No. 68S01-1305-CR-395.
    Supreme Court of Indiana.
    May 31, 2013.

      Mark I. Cox, The Mark I. Cox Law Office, LLC, Richmond, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   DICKSON, Chief Justice.

Facing charges of Murder and Assisting Suicide, the defendant filed a motion to suppress incriminating statements he made to a police detective in response to police inquiries, notwithstanding the defendant’s prior request for counsel. The trial court denied his motion, and the defendant initiated this interlocutory appeal. The Court of Appeals affirmed. Hartman v. State, 962 N.E.2d 1273 (Ind.App.2012). We grant transfer and reverse.

On Monday, February 22, 2010, the defendant, Brian Scott Hartman, was taken into custody on burglary charges. Detective Douglas Fritz of the Randolph County Sheriffs Department initiated an interview with the defendant at the Randolph County Jail and asked questions about the defendant’s father, Brian Ellis Hartman, who was missing at the time. Detective Fritz advised the defendant of his Miranda rights, and the defendant requested to speak with an attorney. Detective Fritz ceased questioning at that time.

The following afternoon, Detective Tom Pullins executed two search warrants at a residence in nearby Williamsburg, Indiana, and discovered the body of the defendant’s father. Early the following day, Wednesday, February 24, 2010, at approximately one o’clock in the morning, Detective Pul-lins had the defendant brought to the jail’s intake area and informed him that “by law” the detective “had” to read him the search warrants. After Detective Pullins read the search warrants, he asked the defendant if he had any questions. In response, the defendant asked if the house had been searched and if anything had been found. Detective Pullins then asked whether the defendant wanted to speak with the detectives, and the defendant indicated that he did. The detective took the defendant to an interview room where he re-read the defendant his Miranda rights, after which the defendant indicated that he understood his rights and had no questions. The defendant then made incriminating statements to the detectives, essentially confessing his role in his father’s death.

In the ensuing trial, the defendant moved the trial court to suppress his confession on the grounds that the statements were obtained as a result of an interrogation which took place after he had invoked his right to remain silent and consult with an attorney. In its order denying the motion to suppress, the trial court concluded:

In the case at hand, more than a day had passed since the Defendant had been questioned. The Defendant was not taken to an interview room to have the Warrants read to him, but was in the intake area. That conversation was clearly not of a coercive nature, which might cause the Defendant to feel pressure to answer questions. Rather, it was the Defendant’s conduct and questions which led to his giving the incriminating statement. He may have simply wanted to “come clean” and be truthful with the officers. He may have hoped to obtain favor from the authorities by providing helpful information. This is only speculation. What is clear is that the Defendant voluntarily chose to initiate this conversation and, regardless of his motivation, chose to give the incriminating statement. Therefore the Motion to Suppress must be denied.

Appellant’s App’x at 117.

On interlocutory appeal, the defendant asserts that the trial court erred in denying his motion to suppress because Detective Pullins, in violation of the Fifth Amendment, reinitiated interrogation after he had invoked his right to counsel, and that the resulting confession is therefore inadmissible. The State contends that the detectives did not reinitiate interrogation of the defendant by reading him the search warrants and asking if he had any questions. Rather, they claim that it was the defendant who initiated a dialogue and indicated that he wished to speak with the officers.

The trial court’s decision regarding admissibility of a confession or incriminating statement is controlled by determining from the totality of the circumstances whether the statement was given voluntarily, rather than through coercion or other improper influence so as to overcome the free will of the accused. Massey v. State, 473 N.E.2d 146, 147 (Ind.1985). We review a trial court’s denial of a motion to suppress in a manner similar to other sufficiency issues. Taylor v. State, 689 N.E.2d 699, 702 (Ind.1997). There must be substantial evidence of probative value in the record to support the trial court’s decision. Id. We do not reweigh the evidence, and we consider conflicting evidence most favorably to the trial court’s ruling. Id. However, within this sufficiency review, we review all issues of law de novo, subject to the sole determination of this Court. See Griffith v. State, 788 N.E.2d 835, 839 (2003).

The Fifth Amendment grants to individuals, among other rights, the right to be free from self-incrimination. U.S. Const, amend. V (“No person ... shall be compelled in any criminal case to be a witness against himself.... ”). This provision applies to the states by virtue of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 1492, 12 L.Ed.2d 653, 658 (1964). In Miranda v. Arizona, the United States Supreme Court outlined an additional prophylactic requirement, inherent in the privilege against self-incrimination, that an individual must be informed of his right to have counsel present during custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 469, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694, 721 (1966) (“[T]he right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today.”). When an individual in custody invokes his Fifth Amendment right to counsel, all interrogation must cease until an attorney is present, and the individual must be afforded the opportunity to speak with the attorney and have an attorney present at any further questioning. Id. at 474, 86 S.Ct. at 1628, 16 L.Ed.2d at 723. However, if the individual initiates “further communication, exchanges, or conversations” with law enforcement, then the individual may be further interrogated without counsel present. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378, 386 (1981). Furthermore, even if counsel is not immediately provided to an individual who requests it, the police “are free to inform the suspect of the facts of [a] second investigation as long as such communication does not constitute interrogation.” Arizona v. Roberson, 486 U.S. 675, 687, 108 S.Ct. 2093, 2101, 100 L.Ed.2d 704, 717 (1988) (citation omitted). Under Miranda, “interrogation” refers to “either express questioning or its functional equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297, 308 (1980). The Court has defined the functional equivalent of express questioning as “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301, 100 S.Ct. at 1689-90, 64 L.Ed.2d at 308 (footnote omitted). Such reasonable likelihood of eliciting an incriminating response must be determined from the suspect’s perspective, rather than the intent of the police, because Miranda protections are intended as a layer of protection for the suspect against coercive police practices, “without regard to objective proof of the underlying intent of the police.” Id. at 301, 100 S.Ct. at 1690, 64 L.Ed.2d at 308.

The findings of fact, conclusions of law, and ruling by the trial court fail to reflect consideration of several uncontested factual matters. Regardless of his whereabouts in the police station house, the defendant remained in police custody, in a police-dominated atmosphere in which there are “inherently compelling pressures which work to undermine the individual’s will to resist and compel him to speak where he would not otherwise do so freely.” Miranda, 384 U.S. at 467, 86 S.Ct. at 1624, 16 L.Ed.2d at 719. The longer an individual is in custody, the more the psychological pressures build. Although the defendant had been in custody for less than 48 hours at the time of the exchange, the uncertainty and stress of the situation was heightened due to the second factor — that the defendant had requested the assistance of counsel, and that counsel had not been provided to him.

In Maryland v. Shatzer, the Supreme Court refused to extend the Miranda and Edwards protections to cover situations where an accused has been released from custody for more than fourteen days and is then re-interrogated. Maryland v. Shatzer, 559 U.S. 98, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010). In so deciding, the Court stated that when a suspect has been released from custody and has returned to his normal life prior to the later attempted interrogation, there is little reason to believe that the suspect’s willingness to talk has been coerced. Id. “He has likely been able to seek advice from an attorney, family members, and friends. And he knows from his earlier experience that he need only demand counsel to bring the interrogation to a halt; and that investigative custody does not last indefinitely.” Id. at 107-08, 130 S.Ct. at 1221, 175 L.Ed.2d at 1055 (footnote omitted).

Here, despite the defendant’s request for counsel, he had not been provided the opportunity to consult with an attorney prior to the police approaching him to read the search warrants. Nor had he consulted with family members or friends, nor been released from custody. Further, there is nothing in the record showing his knowledge from his earlier experience that a demand for counsel would bring dealings with the police to a halt. In fact, the defendant’s experience two days earlier, when his request for counsel was unproductive, could well have led him to the opposite conclusion — that a request for counsel would not be honored prior to further police dealings. This has the likely effect of increasing coercive pressure on the defendant.

In addition, we find significant the immediacy of the defendant’s response to the detective’s invitation to the defendant for questions. In its order denying the motion to suppress, the trial court stated:

Following the reading of the Warrants, the Defendant was asked whether he had any questions. No other inquiries were posed to the Defendant at that time. The Defendant then chose to ask the Detectives whether they had performed the search, and whether they had found anything. It was only at this point that the Defendant was asked whether he wanted to speak with the Detectives, to which the Defendant replied that he did.

Appellant’s App’x at 116 (emphasis added). From this passage, we understand the trial court to have found significant the passage of time between the police asking the defendant if he had any questions and the later point when the defendant asked about who performed the search. We disagree. This series of events is preserved on a video recording and included in the record of this case. The video reveals that the elapsed time between the police asking if the defendant had any questions and the defendant’s inquiry about who performed the search consisted of only three seconds. This fact undermines the trial court’s con-elusion that the defendant “voluntarily chose to initiate this conversation.” Id. at 117. To the contrary, it is clear that the defendant’s inquiry was in direct response to the officer’s question rather than a separate, independent initiation of further conversation by the defendant.

Furthermore, the early-morning timing of the detective’s initiation of the conversation with the defendant strongly suggests that the defendant’s willingness to converse with police notwithstanding his prior request for counsel, was likely the result of police coercion. The search warrants had been executed in the afternoon of February 28, 2010, yet the detectives did not approach the defendant, purportedly to read the search warrants, until one o’clock in the morning on February 24, 2010.

Also significant is the fact that there existed no requirement or justification that the warrants be read to the defendant where the warrants had already been executed and the search performed. In telling the defendant that he was required “by law” to read the already-executed warrants, the detective was engaging in a ploy that further supports our conclusion that the police were attempting to evade their obligation to cease questioning of a suspect who had unambiguously requested counsel.

Finally, although the defendant was re-read his Miranda rights before the detectives elicited the incriminating statements at issue, this fact has no bearing on our analysis. While an accused’s knowing and voluntary resumption of dialogue with police following being reread such warning is not constitutionally infirm when the accused himself reinitiates conversation, this is not so when conversation is reinitiated by police, as it was here. See Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1884-85, 68 L.Ed.2d at 386 (“[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” (emphasis added)). Any subsequent waiver of the right to counsel must be knowing and intelligent under the totality of the circumstances, Grimm v. State, 556 N.E.2d 1327, 1330 (Ind.1990) (citing Oregon v. Bradshaw, 462 U.S. 1039, 1045, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405, 412 (1983)), a requirement not met in this instance, for the reasons outlined above. Thus, even if we were to find that it was the defendant, and not the police, who reinitiated conversation, the totality of the circumstances here was such that the defendant’s subsequent waiver was not knowing and intelligent, and was therefore involuntary. While subterfuge, trickery, and deception can be acceptable interrogation tactics, see United States v. Villalpando, 588 F.3d 1124, 1128 (7th Cir.2009) (quoting United States v. Kontny, 238 F.3d 815, 817 (7th Cir.2001)), when an individual has invoked his right to counsel, it becomes all the more necessary to respect the fine line between constitutionally permissible interrogation techniques and impermissible police coercion.

Conclusion

The totality of the circumstances involving the content, place, and timing of the communication by the police with the defendant, combined with the detective’s immediate follow-up inquiry asking the defendant if he had any questions — all notwithstanding the defendant’s prior invocation of his right to counsel — constituted impermissible questioning or its functional equivalent in contravention of the requirements established by Miranda, Edwards, and Innis. The impingement upon the defendant’s right to counsel requires suppression of the defendant’s re-suiting statements. We reverse the trial court’s denial of the defendant’s motion to suppress and remand for further proceedings consistent with this opinion.

RUCKER, DAVID, MASSA, and RUSH, JJ., concur.

      . The record reflects that the defendant's father owned the property covered by the search warrant, and that the defendant lived in a pole bam on the property.

      . The defendant does not make any argument under the Indiana Constitution but relies wholly on the U.S. Constitution.


author: MASSA, Justice.

text:
    CITY OF INDIANAPOLIS, Appellant (Defendant below), v. Rachael BUSCHMAN, Appellee (Plaintiff below).
    No. 49S02-1210-CT-598.
    Supreme Court of Indiana.
    June 4, 2013.

      Alexander Will, Beth Garrison, Justin F. Roebel, Jillian Spotts, Indianapolis, IN, Attorneys for Appellant.
    James H. Young, Indianapolis, IN, Attorneys for Appellee.
   MASSA, Justice.

This case presents a single question: when a claimant includes information in her tort claim notice beyond that required by the Indiana Tort Claims Act, may that information operate to restrict the scope of her claim? As the statute imposes no such sanction and we are bound to construe it narrowly, we answer that question in the negative.

Facts and Procedural History

On July 25, 2008, Officer Brian Sche-menaur of the Indianapolis Metropolitan Police Department rear-ended Rachael Buschman’s vehicle while driving eastbound on 86th Street near Keystone Avenue in Indianapolis. On August 1, prior to retaining counsel, Buschman submitted a tort claim notice to the City of Indianapolis. In the notice, Buschman briefly described the accident, provided her home address and telephone numbers, and listed Officer Schemenaur’s name, address, birth date, and driver’s license number. She included a copy of the accident report, photographs of the damage, and an estimate of the cost to repair her vehicle. The notice also included the following statements:

Damage: Rear Bumper and side panels damaged, see estimate from Sam Swope. No injuries.

Claim: $960.99

App. at 19.

On July 9, 2010, Buschman and her husband Jeffry filed a complaint against the City and the IMPD in the Marion Superior Court alleging she “suffered personal injuries, including left hip pain, right leg pain, lower back pain and herniation of her lumbar discs at L4-5” as a direct result of Officer Schemenaur’s negligence. App. at 8. Jeffry brought a claim for loss of consortium. The Buschmans moved for summary judgment and, after a hearing, the trial court granted their motion.

The City appealed, arguing Buschman’s tort claim notice did not substantially comply with the requirements of the Indiana Tort Claims Act, Ind.Code ch. 84-13-3, because it stated “No injuries.” Specifically, the City claimed “Buschman not only failed to mention an injury, she specifically misled the City into believing no personal injury claim existed.” Appellant’s Br. at 8. The Court of Appeals agreed and reversed the trial court, finding Buschman’s “notice did not substantially comply with the requirements of the Act for purposes of her personal injury claim, and summary judgment in her favor on this issue was improper.” City of Indianapolis v. Buschman, 970 N.E.2d 757, 761 (Ind.Ct.App.2012).

We granted transfer, thereby vacating the opinion below. City of Indianapolis v. Buschman, 976 N.E.2d 1234 (Ind.2012) (table); Ind. Appellate Rule 58(A).

Standard of Review

A party is entitled to summary judgment only when she “affirmatively shows that there are no genuine issues of material fact with regard to a particular issue or claim.” Haegert v. Univ. of Evansville, 977 N.E.2d 924, 936 (Ind.2012); see also Ind. Trial Rule 56(C). If the moving party makes such a showing, the burden shifts to the non-moving party to point out a genuine issue of material fact. Town of Avon v. W. Cent. Conservancy Dist., 957 N.E.2d 598, 602 (Ind.2011). The trial court must construe all evidence and resolve all doubts in the fashion most favorable to the non-moving party. Id.

Where, as here, the facts are un-controverted, we review the trial court’s grant of summary judgment de novo. Woodruff v. Ind. Family & Soc. Servs. Admin., 964 N.E.2d 784, 790 (Ind.2012) cert. denied, — U.S. -, 133 S.Ct. 233, 184 L.Ed.2d 44 (2012). We will affirm the trial court upon any theory supported by record evidence, and we will reverse only if the trial court incorrectly applied the law to the facts. Id.

Buschman’s Notice Met the Requirements of the Indiana Tort Claims Act.

The City argues Buschman’s notice was inadequate to inform it that Buschman intended to bring a personal injury claim because the notice stated “No injuries.” We disagree.

The purpose of the ITCA is “to advise the city of the accident so that it may promptly investigate the surrounding circumstances.” Collier v. Prater, 544 N.E.2d 497, 498 (Ind.1989). It provides that a tort claim against a municipality is barred unless the claimant provides the municipality with notice of the claim within 180 days of the loss. Ind.Code § 34-13-3-8 (2008). The notice

must describe in a short and plain statement the facts on which the claim is based ... [and] include the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, the amount of the damages sought, and the residence of the person making the claim at the time of the loss and at the time of filing the notice.

Ind.Code § 34-13-3-10 (2008).

Like any statute in derogation of the common law, the ITCA “must be strictly construed against limitations on the claimant’s right to bring suit.” Hinshaw v. Bd. of Com’rs of Jay Cnty., 611 N.E.2d 637, 639 (Ind.1993). Where a claimant’s notice substantially complies with the content requirements of the statute, such that the purpose of the statute is satisfied, we will find it sufficient. Collier, 544 N.E.2d at 498-99. As we have said before, whether a notice substantially complies with the statutory requirements is a question of law dependent upon the individual facts of the case. Id. at 499. We generally will find substantial compliance where a notice is timely filed, operates to inform the municipality of the claimant’s intent to pursue the claim, “and contains sufficient information which reasonably affords the municipality an opportunity to promptly investigate the claim.” Id.

We note that a previous version of this statute did require “written notice,” including “a brief general description of ... the nature and extent of the injury to person-” Ind.Code § 48-8001 (Burns 1963). The current statute does not include the words “the nature and extent of the injury to person.” We find this persuasive evidence that the legislature, when it amended the statute, intended to remove any pre-existing requirement of specificity in regards to personal injuries. See Miller v. Walker, 655 N.E.2d 47, 49 (Ind.1995) (Sullivan, J., dissenting) (“An amendment changing a prior statute indicates a legislative intention that the meaning of the prior statute has been changed.”).

Here, Buschman’s notice complies with the three requirements we outlined in Collier; it was timely filed, it informed the City that she intended to pursue a claim arising out of the July 25 car accident, and it contained detailed information about that accident, including photographs and a police report. Although the notice also stated “No injuries,” we note the statute no longer requires any statement regarding injuries, and we do not believe the General Assembly intended to penalize claimants for including information — even information that is ultimately found to be inaccurate — beyond what the statute requires. Thus, on these facts, we hold Buschman’s notice was adequate.

Our holding today is fully consonant with Boushehry v. City of Indianapolis, 931 N.E.2d 892 (Ind.Ct.App.2010). In that case, the claimant filed a notice of tort claim for damages relating to the City’s 2003 issuance of a stop-work order. He later brought a lawsuit against the City in which he conceded his “damages claims [were] not based on the City’s issuance of the stop-work orders issued in 2003” but rather on various other alleged acts “of tortuous interference with business contracts and slander of title.” Id. at 897. The trial court granted the City’s summary judgment motion on the ground that the claimant’s notice was inadequate, and the Court of Appeals affirmed that ruling, reasoning that the claims in the complaint were not based upon the claim in the notice. Id. Here, Buschman submitted a tort claim notice regarding the July 25, 2008 collision and later brought a suit to recover for personal injuries she allegedly sustained as a result of that collision. If she had later brought a suit to recover for injuries she sustained in a different collision, or for damages arising out of a separate and independent allegedly tortious act, Boushehry would likely apply to bar that suit. Under the facts of this case, however, it does not.

The City cites Howard Cnty. Bd. of Com’rs v. Lukowiak, 810 N.E.2d 379, 384, decision clarified on reh’g, 813 N.E.2d 391 (Ind.Ct.App.2004) in support of its argument that Buschman’s notice is inadequate. In that case, the plaintiff filed a notice of tort claim after she was involved in an automobile collision with a Howard County employee. Her notice described the damage to her vehicle and specified potential medical bills. Twenty months later, she filed an amended notice that included a claim for her lost wages and a claim for her husband’s loss of consortium. The trial court found her original notice was adequate to apprise the county of those additional claims, but a panel of our Court of Appeals disagreed. Id. at 383-84. We note that our colleagues’ decisions, while often persuasive, are not binding upon us, and we decline the City’s invitation to follow the L/ukowiak panel here. To the extent that our holding today conflicts with Lukowiak or any other decisional law, we disapprove it.

It may well be true, as the City argues, that “public and legislative policy support requiring notice to political subdivision of the nature of the injury to allow them to investigate and prepare defenses,” Appellant’s Br. at 9, and that Buschman could have amended her claim once she discovered her injuries. The statute, however, requires neither notice “of the nature of the injury” nor an amended notice. If the legislature wishes to impose either or both of these requirements, it is free to do so. We, however, are not.

Finally, to the extent the City asserts laches, waiver, or the doctrine of unclean hands should apply to bar Buschman’s claim, we find its arguments are not “supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on” as required by our Appellate Rules. Ind. Appellate Rule 46(A)(8)(a). Therefore, they are waived. Reed v. Reid, 980 N.E.2d 277, 297 (Ind.2012) (“We will not review undeveloped arguments.”).

Conclusion

We affirm the trial court’s grant of summary judgment in Buschman’s favor as to the adequacy of her tort claim notice and remand this case for further proceedings consistent with our opinion.

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

      . Jeffry's claim and the Buschmans' claim against the IMPD were both subsequently dismissed by stipulation.