author: BAKER, Judge.

text:
    CLARK COUNTY BOARD OF AVIATION COMMISSIONERS, Appellant-Plaintiff, v. Dennis DREYER and Margo Dreyer as Co-Personal Representatives of the Estate of Margaret A. Dreyer, Appellees-Defendants.
    No. 10A01-1206-PL-288.
    Court of Appeals of Indiana.
    March 21, 2013.
    C. Gregory Fifer, Applegate Fifer Pul-liam LLC, Jeffersonville, IN, Attorney for Appellant.
    John W. Mead, Mead, Mead & Clark, P.C., Salem, IN, Attorney for Appellee.
   OPINION

BAKER, Judge.

In 2009, appellant-plaintiff Clark County Board of Aviation Commissioners (the “Commissioners”) filed a complaint for eminent domain to acquire two tracts of property owned by appellee-defendant Margaret Dreyer after negotiations to purchase the property deteriorated. Three court-appointed appraisers valued the property and filed their report with the trial court on April 24, 2009. In July 2009, Dreyer filed objections to the report. This filing was outside the twenty-day statutory time frame, but the Commissioners did not object.

After a three-day jury trial ended in a $865,000 verdict in Dreyer’s favor, and she was awarded attorney fees, the Commissioners appealed, raising various evidentia-ry arguments. The judgment in Dreyer’s favor was affirmed by this Court, and the Commissioners then filed an Indiana Trial Rule 60(B) motion with the trial court, alleging that the judgment should be set aside because it was void, insofar as the trial court lacked subject matter jurisdiction. More particularly, the Commissioners alleged that Dreyer failed to follow statutory procedures by not objecting to the appraisers’ report within the statutory time frame, thereby denying the trial court of subject matter jurisdiction. The motion was denied.

Subject matter jurisdiction and legal error are distinct concepts. Here, at most, there was legal error when the trial court permitted Dreyer to file her objections in July 2009. Because legal error may not be collaterally attacked, and the Commissioners did not object to Dreyer’s July 2009 objections and did not raise the issue in the first appeal, the trial court did not err by denying their Rule 60(B) motion.

FACTS

On December 10, 2008, the Commissioners entered into a Purchase Agreement with Margaret Dreyer to purchase certain tracts of land designated, Tracts 2A, 2B, 2C, 2D, and 2E for $2,477,425. The Purchase Agreement stated that Dreyer “disagrees and does not accept the offer on Tracts 2F and 2G.” Appellant’s App. p. 30. Accordingly, “parcels 2F and 2G shall be subject to a litigation for eminent domain since there is no agreement on the purchase of these tracts.” Id.

On February 27, 2009, the Commissioners filed a complaint in the Clark Circuit Court seeking to acquire Tracts 2F and 2G from Dreyer through eminent domain. The complaint alleged that the land was necessary “as a part of the airport expansion project of enlarging the Clark County Airport runway from 5,500 feet to 7,000 feet, adding an additional 1,500 feet of airport runway.” Appellant’s App. p. 21. The complaint stated that the appraised value of the land was $3,000 per acre and that Tract 2F is 42.376 acres and Tract 2G is 30.340 acres.

On or about March 3, 2009, Dreyer received a letter from the Commissioners’ attorney advising her of a show cause hearing set on March 19, 2009. This letter advised Dreyer that she could object to the report of the court-appointed appraisers.

On March 18, 2009, Dreyer sent a letter addressed to “The Clark Circuit Court State of Indiana” and noting that it was in regards to the “Clark County Board of Aviation Commissioners.” Appellant’s App. p. 130. In this letter, Dreyer stated that she had only two objections to the taking of Tracts 2F and 2G:

1-We do not agree to the appraised value of $3,000.00 per acre.
2-The described real estate in the Summons includes acreage that was agreed by both parties to be released from the take. If the acreage to the South East of the clear zone was released we would have only one objection, that being the appraised value.

Id.

A rule to show cause hearing was held on March 19, 2009. Following this hearing, the trial court issued an amended order and appointment of appraisers to assess damages. The amended order appointed three disinterested freeholders “for the purpose of appraising the property described in the Complaint filed herein, and shall then report back to the Court.” Appellant’s App. p. 41.

On April 24, 2009, the court-appointed appraisers filed their report concluding that Dreyer was owed $203,605 in damages. On May 7, 2009, a copy of the appraisers’ report was delivered to Dreyer; Patricia Hathaway signed the certified mail receipt.

On June 26, 2009, Dreyer appeared with counsel. On July 6, 2009, she filed exceptions to the damages assessment and a demand for a jury trial.

One year later, on July 13, 2010, Dreyer, through counsel, filed a motion to set aside the appraisers’ report, insofar as they were not properly instructed as required under Indiana Code section 32-24-l-9(a). More particularly, the motion alleged that the report “contains conflicting statements resulting in a likelihood that the appraisers failed to properly discharge their duties.” Appellant’s App. p 69. The Commissioners responded, noting that Dreyer did not object at the time the report was filed more than one year before. Nevertheless, Dreyer pointed out that she was not present when the instructions were given, that she was unrepresented, and that failing to properly instruct appraisers is reversible error. Consequently, on August 17, 2010, the trial court granted Dreyer’s motion to set aside the 2009 appraisal and ordered them to return on August 30, 2010 to be properly instructed.

On August 30, 2010, the appraisers were instructed according to statute, and on September 21, 2010, they filed their report. The appraisers assessed the damages for the taking of Tracts 2F and 2G at $201,100, which was $2,505 lower than the 2009 appraisal.

On September 27, 2010, the trial court ordered the clerk “to send a copy of the Report of Appraisers and this Entry and Order by CERTIFIED MAIL to Plaintiff, all Defendants and the attorneys of record in this case.” Appellant’s App. p. 93. However, although Dreyer’s attorney was served with a copy of the appraisers’ report on October 7, 2010, Dreyer was not served.

On November 17, 2010, Dreyer filed amended exceptions to the appraisers’ report and demand for a jury trial. Dreyer claimed that the report understated the fair market value of the property, the damages that would result from the Commissioners’ proposed improvements, and the amount of just compensation.

The three-day jury trial commenced on November 22, 2010, and on November 24, the jury awarded Dreyer $865,000 in compensation. The trial court entered judgment on the jury’s verdict that same day. On January 6, 2011, the trial court entered an order granting Dreyer’s motion for attorney fees and costs totaling $24,036.06.

On December 14, 2010, the Commissioners filed a notice of appeal. On appeal, the Commissioners argued that the trial court had abused its discretion by admitting evidence regarding the highest and best use of the property that was not consistent with the current condition of the property. Clark Cnty Bd. of Aviation Comm’rs v. Dreyer, No. 10A01-1012-P1-659, memo op. at 1 (Ind.Ct.App. December 14, 2011).

A panel of this Court first noted that the Commissioners did not timely object to the admission of the evidence and, therefore, did not properly preserve the claim on appeal. Memo op. at 2. Nevertheless, the panel observed that the trial court had not erred, inasmuch as Dreyer had presented evidence of the highest and best use of the land, and “a land owner is entitled to the value of the property at its highest and best use, not necessarily the use to which it is presently being put.” Memo op. at 3. Accordingly, the panel affirmed the judgment of the trial court awarding Dreyer $865,000. Memo op. at 3^4.

Nearly one month later, on January 13, 2012, Dreyer filed a motion to enter the unsatisfied judgment against the Civil Government of Clark County. In the motion, Dreyer alleged that on July 6, 2009, the Commissioners took possession and ownership of the disputed property by paying the sum of $203,605 to the Clerk of the Clark Circuit Court. Nevertheless, despite taking Dreyer’s property pursuant to their eminent domain authority, the Commissioners “advised that they have no funds with which to pay the judgment entered in favor of [Dreyer].” Appellant’s App. p. 98. Thus, Clark County owed Dreyer $661,395 with 8% interest per an-num added from July 6, 2009. Moreover, Dreyer was entitled to $24,035.06 in attorney fees plus 8% interest per annum from January 6, 2011, when she was awarded those fees.

On January 17, 2012, the Commissioners filed a motion for partial relief from the judgment and entry of an order acknowledging full satisfaction of such judgment. For the first time, the Commissioners invoked Trial Rules 60(B)(6) and (8) to argue that Dreyer had not filed her exceptions to the assessment within the prescribed twenty days as provided by statute. More particularly, the Commissioners pointed out that Dreyer was served with notice of the damages award pursuant to the assessment on May 7, 2009, but failed to file exceptions until July 6, 2009. The Commissioners claimed that as a result, the trial court “lacked jurisdiction to determine damages in excess of the court-appointed appraisers’ assessment.” Appellant’s App. p. 103.

On April 26, 2012, Dreyer filed her response to the Commissioners’ motion for partial relief from judgment, and on May 2, 2012, the trial court conducted a hearing on the motion. A scheduling order was established at the hearing pursuant to which the Commissioners filed a post-hearing brief on May 14, 2012, and Dreyer filed her supplemental argument and memorandum on May 16, 2012.

On May 29, 2012, the trial court entered an order granting Dreyer’s motion to enter judgment against Clark County. The trial court awarded Dreyer $661,395 together with 8% interest from July 6, 2009, until paid and $24,035.06 in attorney fees and litigation expenses together with 8% interest from January 6, 2011, until paid. The trial court denied the Commissioners’ motion for partial relief from judgment. The Commissioners now appeal.

DISCUSSION AND DECISION

I. Standard of Review— Trial Rule 60(B)

The Commissioners appeal from a denial of a Rule 60(B) motion. This Court reviews the denial of a Rule 60(B) motion for an abuse of discretion. G.B. v. State, 715 N.E.2d 951, 952 (Ind.Ct.App.1999). We will not find an abuse of discretion unless the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it. Id. at 958. “On a motion for relief from judgment, the burden is on the movant to demonstrate that relief is both necessary and just.” Id.

The Commissioners invoked Subsections (6) and (8) in their motion for partial relief from judgment; however, on appeal, they concentrate exclusively on Subsection (6). Rule 60(B)(6) provides that “[o]n motion and upon such terms as are just the court may relieve a party .. from judgment ... for the following reasons ... the judgment is void.” Motions filed under Subsection (6) “shall be filed within a reasonable time.” Ind. Trial Rule 60(B)(6).

II. Subject Matter Jurisdiction and Legal Eiror

The Commissioners allege that the trial court lacked subject matter jurisdiction to award Dreyer damages and attorney fees to the extent that it exceeds the $201,205 damages assessment entered by the court-appointed appraisers.

In K.S. v. State, our Supreme Court recognized that the “fact that a trial court may have erred along the course of adjudicating a dispute does not mean it lacked jurisdiction.” 849 N.E.2d 538, 541 (Ind.2006). Conflating jurisdiction with procedural error is not a new challenge, insofar as Justice Arterburn wrote almost five decades ago:

Far too often there is an inclination in a law suit to attempt to convert a legal issue into one of “jurisdiction” and from that point contend all actions of the court are void, and that the question of jurisdiction may be raised at any time or that the proceedings are subject to collateral attack and are a matter for original writs in this court.

Id. (quoting J.I. Case Co. v. Sandefur, 245 Ind. 213, 217-18, 197 N.E.2d 519, 521 (1964)).

The K.S. Court explained that “ ‘[t]he question of subject matter jurisdiction entails a determination of whether a court had jurisdiction over the general class of actions to which a particular case belongs.’ ” Id. at 542 (quoting Troxel v. Troxel, 737 N.E.2d 745, 749 (Ind.2000)). Furthermore, “[r]eal jurisdictional problems would be, say, a juvenile delinquency adjudication entered in a small claims court, or a judgment rendered without service of process.” Id. (emphasis in original).

More recently, in Baird v. Lake Santee Regional Waste and Water District, Baird owned property where various ordinances required property owners to discontinue use of septic tanks and to connect to the sewer system. 945 N.E.2d 711, 713 (Ind.Ct.App.2011). Baird refused to connect to the sewer system, which resulted in three liens being recorded against her property. Id. After the liens remained unpaid, the District filed its complaint to foreclose, and summary judgment was entered in favor of the District. Id. Eventually, a decree of foreclosure was entered in favor of the District, and Baird filed a motion for relief from judgment pursuant to Rule 60(B)(6), which was denied. Id. at 714.

On appeal, Baird argued that she was entitled to relief under Rule 60(B)(6) because the District had failed to follow statutory procedure, and, therefore, the trial court was without jurisdiction to order foreclosure of the liens. Id. This Court disagreed, concluding that “[ajlthough Baird claimed that there was a jurisdictional problem, it was not a ‘real’ jurisdictional problem in the sense discussed in K.S.” Id. at 715. The Baird Court reasoned that the legislature designated the trial court to be a default forum for all cases unless some other court has exclusive jurisdiction over the case. Id.

Here, the Commissioners allege that they are entitled to relief because Dreyer’s July 2009 exceptions were not filed within the twenty-day time frame prescribed by Indiana Code section 32-24-1-11. Dreyer received the report on May 7, 2009, and failed to file her exceptions until July 6, 2009. But like Baird, this is, at most, a failure to follow statutory procedure as opposed to a real jurisdictional problem described in K.S. Consequently, this constituted only legal error, which can only be set aside through direct appeal and not through collateral attack. K.S., 849 N.E.2d at 540.

Nevertheless, the Commissioners argue that because our Supreme Court abolished the concept of “jurisdiction over the particular case,” the jurisdictional effect of Dreyer’s failure to follow the proper statutory procedures “relate only to subject matter jurisdiction.” Reply Br. p. 8.

Initially, we note that our Supreme Court has observed that defining the precise time period under Indiana Code section 32-24-1-11 is crucial because if exceptions are not filed within the articulated time frame, the trial court is deprived “of jurisdiction to hear the issue of damages.” State v. Universal Outdoor, Inc., 880 N.E.2d 1188, 1190 (Ind.2008). However, we cannot agree that this only related to subject matter jurisdiction.

In K.S., our Supreme Court stated that when subject matter jurisdiction and personal jurisdiction exist,

a court’s decision may be set aside for legal error only through direct appeal and not through collateral attack. Other phrases recently common to Indiana practice, like “jurisdiction over a particular case,” confuse actual jurisdiction with legal error, and we will be better off ceasing such characterizations.

849 N.E.2d at 540.

We can only conclude that the contrary language in Universal Outdoor is misleading. To be sure if statutory procedures are not followed, the trial court may not be permitted to hear the issue of damages; however, this is not because the trial court lost jurisdiction, but rather, because legal error was committed. Indeed, as strongly suggested by the K.S. Court, practitioners and the judiciary, including ourselves, should stop using the phrase “jurisdiction over a particular case,” rather than “legal error,” which is what occurred in the instant case. The Commissioners equated jurisdiction with legal error. Accordingly, because legal error is not subject to collateral attack and the Commissioners did not object to Dreyer’s 2009 exceptions or even raise the issue on direct appeal, we cannot say the trial court erred by denying their Rule 60(B) motion.

The judgment of the trial court is affirmed.

RILEY, J., and BARNES, J., concur.

      . It appears that sometime between May 29, 2012, and when this appeal was filed, Margaret Dreyer passed away and The Estate of Margaret A. Dreyer was opened with Dennis Dreyer and Margo Dreyer as Co-Personal Representatives. The Estate is the now the party of record; however, during most of the relevant proceedings Margaret Dreyer was alive and participated.

      . The chronological case summary does not reflect this hearing.

      . It is unclear why an amended order had to be issued or what the contents of the initial order were.

      . Patricia Hathaway's relationship to Margaret Dreyer is unclear from the record.

      . Prior to this, Dreyer had been unrepresented.

      . We do note that Dreyer argues that she filed exceptions through her March 18, 2009 letter to the court and that they were therefore timely. The Commissioners counter that this letter did not suffice under the statute. In light of our disposition of the case, we need not address this issue.


source: Caselaw Access Project

author: BRADFORD, Judge.

license: Public Domain

text:
    Joseph J. SCOTT, Appellant/Petitioner, v. STATE of Indiana, Appellee/Respondent.
    No. 45A04-1208-PC-420.
    Court of Appeals of Indiana.
    March 27, 2013.

      Scott King, Scott King Group, Merrill-ville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Aaron J. Spolarich, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

INTRODUCTION

Joseph Scott was operating a vehicle with a blood alcohol concentration (“BAC”) of 0.18 grams per deciliter when he fled a police officer and lost control of the vehicle, killing another. Scott indicated that he wanted to plead guilty, and his trial counsel advised him that the maximum sentence he could receive following that guilty plea would be thirty years of incarceration. Scott pled guilty to Class B felony operating a vehicle with a BAC of at least 0.18 g/dl and Class B felony resisting law enforcement causing death. The trial court sentenced Scott to an aggregate sentence of thirty years of incarceration with five suspended to community corrections, and Scott did not appeal. Eventually, Scott filed a petition for post-conviction relief (“PCR”), alleging fundamental error and that he received ineffective assistance of trial counsel. Because we conclude that Scott received ineffective assistance of trial counsel, we reverse and remand with instructions to impose a sentence of twenty-three years of incarceration.

FACTS AND PROCEDURAL HISTORY

On July 29, 2006, Scott was operating a vehicle when Merrillville Police Officer Michael Gurgevich attempted to stop him, activating his lights and siren. Instead of stopping, Scott fled from Officer Gurgevich, and, in the course of his flight, Scott’s vehicle spun out of control, striking and killing Kirk Mitchell. At the time, Scott’s BAC was 0.18 g/dl.

On August 10, 2006, the State charged Scott with Count I, Class B felony operating a vehicle with a BAC of at least 0.18 g/dl causing death; Count II, Class B felony resisting law enforcement causing death; Count III, Class C felony reckless homicide; and Count IV, Class C felony criminal recklessness. On August 21, 2007, Bruce Parent entered his appearance as Scott’s trial counsel. On April 9, 2008, Scott pled guilty to all counts without benefit of a plea agreement.

On May 9, 2008, the trial court accepted Scott’s pleas to Counts I and II but not for Counts III and IV, finding that Counts III and IV were subsumed into Counts I and II. The trial court sentenced Scott to fifteen years of incarceration each for Counts I and II, the sentences to be served consecutively, and with five years of Count II suspended to the Lake County Community Corrections Forensic Diversion Program. The trial court found Scott’s youth and remorse to be mitigating. The trial court found, as aggravating circumstances, Scott’s prior criminal history and that fact that he was on probation at the time of the current offenses. The trial court also noted that Scott’s “prior history was ... primarily related to drugs and alcohol and driving[,]” he had been involved with drugs and alcohol since he was thirteen, and he had been given access to various forms of treatment. Appellant’s App. p. 179. The trial court advised Scott that he could appeal his sentence, had thirty days in which to file a notice of appeal or motion to correct error, and that the trial court would appoint an attorney if he could not afford one. Scott did not appeal his sentence.

On September 19, 2011, Scott filed a PCR petition. Scott alleged that he received ineffective assistance of trial counsel and that the imposition of consecutive sentences for Counts I and II constituted fundamental error. During the hearing on Scott’s PCR petition, Parent testified regarding the advice he had given Scott. Parent testified that he advised Scott that he would only be sentenced for Counts I and II and that the maximum sentence he could receive would be thirty years. • On March 5, 2012, the post-conviction court granted the State partial summary judgment. On July 27, 2012, the post-conviction court denied Scott’s PCR petition in full.

DISCUSSION

PCR Standard of Review

Our standard for reviewing the denial of a PCR petition is well-settled:

In reviewing the judgment of a post-conviction court, appellate courts consider only the evidence and reasonable inferences supporting its judgment. The post-conviction court is the sole judge of the evidence and the credibility of the witnesses. To prevail on appeal from denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite to that reached by the post-conviction court.... Only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, will its findings or conclusions be disturbed as being contrary to law.

Hall v. State, 849 N.E.2d 466, 468, 469 (Ind.2006) (internal citations and quotations omitted).

I. Whether Scott’s Sentence Constitutes Fundamental Error

Scott claims that his consecutive sentences constitute fundamental error. As the State points out, however, “[freestanding claims that the original trial court committed error are available only on direct appeal.” Martin v. State, 760 N.E.2d 597, 599 (Ind.2002). Scott does not explain why this claim would not have been available on direct appeal, so, to the extent that he raises his challenge as a freestanding claim, he cannot advance it in this postcon-viction proceeding.

II. Whether Scott Received Effective Assistance of Trial Counsel

We review claims of ineffective assistance of counsel based upon the principles enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

[A] claimant must demonstrate that counsel’s performance fell below an objective standard of reasonableness based on prevailing professional norms, and that the deficient performance resulted in prejudice. Prejudice occurs when the defendant demonstrates that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” A reasonable probability arises when there is a “probability sufficient to undermine confidence in the outcome.”

Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.2006) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Because an inability to satisfy either prong of this test is fatal to an ineffective assistance claim, this court need not even evaluate counsel’s performance if the petitioner suffered no prejudice from that performance. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind.1999). We conclude that Scott’s trial counsel was ineffective for advising him that the maximum sentence he could receive was thirty years of incarceration.

In Pierce v. State, 761 N.E.2d 826, 830 (Ind.2002), the Indiana Supreme Court held generally that the same harm cannot be used to elevate multiple convictions. See Pierce, 761 N.E.2d. at 830 (“[W]e have long adhered to a series of rules of statutory construction and common law that are often described as double jeopardy, but are not governed by the constitutional test set forth in Richardson [v. State, 717 N.E.2d 32 (Ind.1999) ]. Among these is the doctrine that where a burglary conviction is elevated to a Class A felony based on the same bodily injury that forms the basis of a Class B robbery conviction, the two cannot stand.”). The remedy for such a violation is to reduce one of the convictions to the highest level it can be without being enhanced by the same harm used to enhance another conviction. See id. (“Accordingly, the [Class B felony] robbery conviction is reduced to a C felony.”).

Carter v. State, 424 N.E.2d 1047 (Ind.Ct.App.1981), and Dawson v. State, 612 N.E.2d 580 (Ind.Ct.App.1993), although decided before Pierce, are consistent with it. In those cases, this court addressed the question of whether one could be convicted of both operating a vehicle while intoxicated causing death (“OWI death”) and reckless homicide in a case involving one death. In Carter, this court held that one could not be sentenced for both where there was one homicide. 424 N.E.2d at 1048. The Dawson court refined the Carter holding, concluding that the proper remedy in such cases (at least where there was no double jeopardy violation) was to reduce the OWI death conviction to mere OWI, thereby ensuring that Dawson was not being punished twice for the same death. 612 N.E.2d at 585.

We conclude that Scott’s two convictions clearly fall within the general rule announced in Pierce and are analogous to the convictions addressed in Dawson and Carter. The fact of Mitchell’s death was used to enhance both of Scott’s convictions to Class B felonies, without which enhancement Scott’s BAC conviction would have been a Class A misdemeanor and his resisting law enforcement conviction would have been a Class D felony. Pursuant to Pierce and Dawson, we conclude that Scott’s resisting law enforcement conviction would have had to have been reduced to a Class D felony to avoid punishing him twice for Mitchell’s death, had Scott gone to trial. Therefore, the lengthiest sentence Scott could have received was twenty-three years. Scott’s trial counsel’s performance was deficient for failing to inform Scott of this and informing him, instead, that his maximum sentence could be thirty years.

We also conclude that Scott has established prejudice. In essence, Scott’s trial counsel’s failure to inform him of the correct maximum sentence rendered his plea unintelligent. In order to establish an ineffective assistance of trial counsel claim in a guilty plea context, the defendant “must show ‘a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” Smith v. State, 565 N.E.2d 1114, 1117 (Ind.Ct.App.1991) (quoting Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)), trans. denied. On this record, we believe that Scott has shown such a reasonable probability. We therefore conclude that Scott has established that he received ineffective assistance of trial counsel.

CONCLUSION

We conclude that Scott received ineffective assistance of trial counsel. Scott agrees that the relief to which he is entitled is a sentence reduction to no greater that twenty-three years of incarceration, the most that could legally have been imposed. Given the seriousness of Scott’s offenses, his history of drug and alcohol abuse and related criminal convictions, and the fact that he has failed to take advantage of multiple treatment opportunities, we believe that a twenty-three year aggregate sentence is appropriate. Consequently, we remand with instructions to impose a sentence of twenty-three years, all executed.

We reverse the judgment of the post-conviction court and remand with instructions.

MATHIAS, J., and CRONE, J., concur.

      . We heard oral argument in this case on March 12, 2013, on the campus of Manchester University in North Manchester, Indiana. We would like to commend counsel on the quality of their presentations and thank the faculty, staff, and students of Manchester and representatives of the Wabash County bar for their hospitality.

      . "A person at least twenty-one (21) years of age who causes the death of another person when operating a vehicle ... with an alcohol concentration equivalent to at least fifteen-hundredths ... gram of alcohol per ... one hundred (100) milliliters of the person’s blood ... commits a Class B felony.” Ind.Code § 9-30-5~5(b) (2006).
      A person who knowingly or intentionally ... flees from a law enforcement officer after the officer has, by visible or audible means, including operation of the law enforcement officer’s siren or emergency lights, identified himself or herself and ordered the person to stop ... commits resisting law enforcement, ... [a] Class B felony if ... the person operates a vehicle in a manner that causes the death of another person[.]
      Ind.Code § 35-44-3-3 (2006) (currently Ind. Code § 35-44.1-3-1).

      . See Ind.Code § 9-30-5-1 ("A person who operates a vehicle with an alcohol concentration equivalent to at least fifteen-hundredths (0.15) gram of alcohol per ... one hundred (100) milliliters of the person's blood ... commits a Class A misdemeanor.”); Ind.Code § 35-44-3-3 (currently Ind. Ct.App. 35-44.1-3-1) (“A person who knowingly or intentionally ... flees from a law enforcement officer after the officer has, by visible or audible means, including operation of the law enforcement officer's siren or emergency lights, identified himself or herself and ordered the person to stop!,] commits resisting law enforcement, a ... Class D felony if ... the person uses a vehicle to commit the offense!.]”).

      . Scott also argues that his trial counsel was ineffective for failing to file a notice of appeal on his behalf. Because we conclude that Scott’s trial counsel was ineffective in other respects, we need not address this claim.


text:
    In re the GUARDIANSHIP OF A.J.A. and L.M.A., Minor Children, J.C., Appellant-Intervenor, v. J.B. and S.B., Appellees-Petitioners.
    No. 48A02-1204-GU-326.
    Court of Appeals of Indiana.
    March 27, 2013.
    Deborah M. Agard, Law Office of Deborah M. Agard, Indianapolis, IN, Attorney for Appellant.
    Seiji Bryant, Joseph Brewster, Anderson, IN, Appellees Pro Se.
   OPINION

BAKER, Judge.

Paternal Grandmother J.C. (Grandmother) appeals from the trial court’s order vacating the grandparent visitation rights she had enjoyed since 2009 on the basis that the trial court that initially granted these rights lacked the statutory authority to do so. Among other things, Grandmother contends that her lack of standing under the Grandparent Visitation Act was waived when her granddaughters’ guardians, J.B. and S.B. (collectively, “the Guardians”), failed to. appeal the original order. The Guardians cross-appeal, arguing that even if their objection to the original order was waived, Grandmother’s appeal is nevertheless moot because S.B., a non-relative, and J.B. have since adopted the girls, and grandparent visitation rights do not survive adoption by a non-relative.

We conclude that although Grandmother did lack standing to pursue the original grandparent visitation order, the Guardians’ objections to her want of standing were waived when they failed to appeal the original order. We also conclude that Grandmother’s visitation rights were not terminated by the adoption because the girls were not adopted only by S.B. but also by J.B., who is their uncle. As a result, we reverse the judgment of the trial court.

FACTS

On April 23, 2008, M.A. shot his wife multiple times, killing her. Their two little girls, A.J.A. and L.M.A., were present at the home at the time of the murder. That same day, M.A.’s half brother, J.B., and J.B.’s partner, S.B., took A.J.A. and L.M.A. into their home. Soon thereafter, J.B. and S.B. filed for guardianship of the girls with the support of both families.

In May, the Guardians enrolled A.J.A. in counseling with Jean Manis, a licensed clinical social worker. A.J.A. was diagnosed with Post-Traumatic Stress Disorder.

On June 5, 2008, J.B. asked Grandmother to pick A.J.A. up from a counseling session. When Grandmother arrived, she took-A.J.A. to the parking lot of the jail where M.A. was being held in pre-trial detention. Grandmother told A.J.A. that her daddy was living there and that he was safe. Grandmother had A.J.A. get out of the car, and M.A., who was outside for recreation time, yelled to A.J.A. that he loved her. Grandmother did not inform J.B. or S.B. that she took A.J.A. to the jail until after A.J.A told them. Consequently, J.B. told Grandmother that she could no longer see the children without supervision because he could not trust her judgment.

The guardianship was granted on July 3, 2008. On July 10, 2008, Grandmother filed a motion to intervene in the guardianship and a petition for grandparent visitation with A.J.A. and L.M.A. Grandmother’s motion to intervene was granted over the objection of the Guardians, who argued that Grandmother did not have standing to pursue grandparent visitation because she was the mother of M.A., who was still living.

In August 2008, the parties agreed to a provisional visitation schedule that allowed for one hour of weekly supervised visitation for Grandmother for a six-week period. The parties also agreed to start family counseling at Anderson Psychiatric Clinic to try to facilitate further visitation. The guardianship court approved the provisional agreement.

Evidence on Grandmother’s visitation petition was presented by both parties over four hearings in February, April, and May 2009. On June 1, 2009, the trial court entered an order granting Grandmother unsupervised grandparent visitation according to a strict schedule.

After Grandmother’s visitation petition was granted, the Guardians filed a motion to correct error, arguing that the trial court erred by granting the petition and by failing to make specific findings of fact and conclusions of law. On July 6, 2009, the trial court issued an amended order with specific findings of fact and conclusions of law but kept the remainder of the prior order intact. The Guardians did not appeal the amended order.

The Guardians filed a petition to adopt A.J.A. and L.M.A. in October 2009 after the maternal aunt of A.J.A. and L.M.A. filed an adoption petition the month before. In November 2010, the parties agreed to transfer the guardianship case to Madison Superior Court II to be consolidated with the pending adoption matters. On April 5, 2011, Grandmother filed a preemptive “Objection to Modification of Grandparent Visitation.” Appellant’s App. p. 69.

In July 2011, a parenting coordinator was appointed to assist the Guardians in facilitating visitation with the girls’ maternal aunt and other grandparents. On January 9, 2012, the parenting coordinator submitted documentation to the court stating that on at least one occasion in December 2011, Grandmother had initiated a telephone conversation between M.A. and one of the children. The parenting coordinator recommended that all future grandparent visitation for Grandmother be supervised. On January 19, 2012, a hearing was held on the parenting coordinator’s recommendation. The court did not restrict Grandmother’s visitation but instead admonished her from facilitating any type of contact between M.A. and the children during her visitation in the future.

Later that same day, the Guardians filed a petition to terminate Grandmother’s visitation. In their petition, the Guardians argued that Grandmother never had standing under the grandparent visitation statute and that, therefore, the trial court had lacked subject-matter jurisdiction to enter the original grandparent visitation order. On February 28, 2012, Grandmother filed her response, which alleged that the Guardians had waived their standing argument by consenting to the provisional visitation agreement and by failing to appeal the original grandparent visitation order.

On March 7, 2012, the trial court held a hearing on the Guardians’ motion to terminate grandparent visitation. The attorneys for Grandmother and the Guardians made legal arguments on the motion to terminate grandparent visitation, but no further evidence was presented as to the grandparent visitation issue.

On March 26, 2012, the trial court found that the original grandparent visitation order was void for lack of subject-matter jurisdiction because the court had lacked the authority to grant Grandmother visitation rights when she was not the parent of the girls’ deceased parent and the marriage of the girls’ parents had not been dissolved at the time of their mother’s death. Based on these conclusions, the trial court vacated the grandparent visitation order. Grandmother now appeals.

DISCUSSION AND DECISION

Grandmother challenges the trial court’s order terminating her grandparent visitation rights on two grounds: (1) Grandmother did have standing because M.A.’s marriage was dissolved when he murdered his wife; and (2) the Guardians waived their objection to her lack of standing by failing to appeal the original grandparent visitation order. The Guardians cross-appeal, claiming that because they have since adopted A.J.A. and L.M.A. and S.B. is not biologically related to them, Grandmother’s visitation rights, to the extent they ever existed, cannot survive.

I. Mootness

We first address whether Grandmother’s appeal is moot because A.J.A. and L.M.A. have since been adopted by J.B., who is their biological father’s half brother, and S.B., who is J.B.’s partner. The Guardians contend that because S.B. is not biologically related to A.J.A. and L.M.A., the adoption terminated any grandparent visitation rights enjoyed by Grandmother.

Indiana Code section 31-17-5-9 provides that grandparent visitation rights survive the adoption of the child by a stepparent or certain biologically-related relatives, including an uncle. In interpreting the statutory language of the Act, we apply a de novo standard of review. In re Guardianship of E.N., 877 N.E.2d 795, 798 (Ind.2007). We strive to give effect to the intent of the legislature, and we recognize that “the best evidence of legislative intent is the language of the statute itself.” Cubel v. Cubel, 876 N.E.2d 1117, 1120 (Ind.2007). “[T]he words in a statute must be given their plain and ordinary meaning unless otherwise indicated by the statute.” Id.

We note that Indiana Code section 31-17-5-9 does not state that adoption by a non-relative terminates grandparent visitation; rather, it provides situations when grandparent visitation rights survive, and adoption by a biologically-related uncle is one of those situations. The Guardians assert that because J.B. is a half brother rather than a “full blooded brother” to M.A., he is not an “uncle” under the statute. Appellees’ Br. p. 16. However, the plain and ordinary meaning of “uncle” is “[t]he brother of one’s mother or father.” American Heritage Dictionary of the English Language 1394 (1978). And “brother” is defined as “[a] male having the same mother and father as another, full brother, or one having one parent in common with another, half brother.” Id. at 169. Accordingly, J.B. is an “uncle” under the statute such that Grandmother’s grandparent visitation rights, to the extent they existed, survived his adoption of A. J.A. and L.M.A. The fact that S.B. also adopted the girls is not dispositive. Grandmother’s appeal is not moot.

II. Grandmother’s Claims

As noted above, Grandmother contends that she had standing to pursue grandparent visitation because M.A.’s marriage was dissolved when he murdered his wife, and that even if she did not have standing, the Guardians nevertheless waived their objections to her standing when they failed to appeal the original order.

Today, the Grandparent Visitation Act (the Act) provides the sole remedy for grandparents seeking court-ordered visitation with their grandchildren. Pursuant to the Act, a grandparent may seek visitation if: (1) the child’s parent is deceased; (2) the marriage of the child’s parents has been dissolved in Indiana; or (3) the child was born out of wedlock. Ind. Code § 31-17-5-1. Moreover, grandparent visitation rights may only be granted if a court determines that the visitation will be in the best interests of the child. I.C. § 31-17-5-2(a).

For a grandparent to have standing on the basis of the child having a deceased parent, that grandparent must be the parent of the deceased. In re Visitation of C.R.P., 909 N.E.2d 1026, 1028 (Ind.Ct.App.2009). Here, Grandmother is the parent of M.A., who is still alive, albeit likely incarcerated at least until the girls reach the age of majority. Nevertheless, it appears that Grandmother was erroneously granted initial grandparent visitation rights on the basis of the children’s mother being deceased. Appellant’s App. p. 51.

Grandmother now argues that the original trial court did not state on what basis it found she had standing and that it could have granted her standing on the basis that her son’s marriage was dissolved by virtue of him killing his wife. Because Grandmother did not raise this argument in the underlying proceedings, it is waived on appeal. See Hite v. Vanderburgh Cnty. Office of Family & Children, 845 N.E.2d 175, 180 (Ind.Ct.App.2006).

Waiver notwithstanding, however, Grandmother’s argument still fails. It is true that “dissolved” is not defined under the Act. However, we think that in context, the term clearly refers to a marriage being terminated by a final dissolution decree. See Ind.Code § 31-9-2-41 (defining “dissolution decree” as a “judicial decree ... [that] has the effect of terminating the marriage and restoring the parties to the state of unmarried persons”); Ind.Code § 31 — 15—2—16(d) (referring to a dissolution decree as a “decree that dissolves the marriage”). Moreover, to give this subsection the interpretation desired by Grandmother — that a marriage is dissolved when one of the parents is killed by the other— would render the first subsection meaningless. See Pabey v. Pastrick, 816 N.E.2d 1138, 1148 (Ind.2004) (stating that courts should not presume that the legislature would enact a useless provision and thus should attempt to give effect to every word of a statute). Therefore, Grandmother had no standing to seek grandparent visitation under the Act.

As noted above, however, Grandmother contends that the Guardians’ failure to appeal the original visitation order results in a waiver of her lack of standing under the Act. More particularly, Grandmother asserts that her lack of standing resulted only in the trial court having no jurisdiction over the case as opposed to no subject-matter jurisdiction. Our Supreme Court has disapproved of the use of the term “jurisdiction over the case” because it confuses subject-matter jurisdiction, which cannot be waived, with legal errors that may be waived. K.S. v. State, 849 N.E.2d 538, 540-11 (Ind.2006). According to K.S., where subject-matter jurisdiction and personal jurisdiction exist, “a court’s decision may be set aside for legal error only through direct appeal and not through collateral attack.” Id. at 540.

Subject-matter jurisdiction - exists where “a court has jurisdiction over the general class of actions to which a particular case belongs.” Troxel v. Troxel, 737 N.E.2d 745, 749 (Ind.2000). Here, the trial court undoubtedly had jurisdiction to hear grandparent visitation cases generally. See Ind.Code § 33-29-1-1.5(1) (stating that superior courts have original jurisdiction over all civil and criminal cases). In addition, there is no question that the court had personal jurisdiction over the parties, with the Guardians submitting to the authority of the court by filing the initial guardianship proceedings and Grandmother submitting to the court’s authority by intervening in those proceedings. See Ind. Trial Rule 4(A).

Nevertheless, the Guardians maintain that the initial grandparent visitation order was void ab initio because the legislature never intended for Grandmother to have standing to pursue visitation. The Guardians seek to distinguish K.S. by directing us to M.S. v. C.S., 938 N.E.2d 278 (Ind.Ct.App.2010). In M.S., this Court held that a joint custody order between a parent and a third party was void because the trial court lacked the statutory authority to enter such an order “under any set of circumstances, and the error was therefore impossible to cure.” 938 N.E.2d at 284.

Although M.S. was decided after K.S., it failed to address any implications that K.S. might have had on its analysis and instead relied upon pre-KS. reasoning from earlier opinions of the Court of Appeals. In light of the above-quoted language from K.S., however, we decline to follow the paradigm for void and voidable judgments as explained in M.S. Accordingly, we conclude that although the initial grandparent visitation order may have been erroneous, the Guardians nevertheless waived their objections to Grandmother’s standing when they failed to appeal.

Notwithstanding this conclusion, we note that the trial court “may modify an order granting or denying [grandparent] visitation rights whenever modification would serve the best interests of the child.” I.C. § 31-17-5-7. Given that nearly a year has passed since the grandparent visitation order has been vacated, it may be wise for the trial court to schedule a hearing sua sponte on the children’s best interests to determine whether and to what extent grandparent visitation should occur in the future.

The judgment of the trial court is reversed.

RILEY, J., and BARNES, J., concur.

      . On November 15, 2012, Grandmother filed a motion to strike certain materials from the Guardians’ appendix. This motion is granted in part as to pages 67 to 77 and 91 to 92 of the Guardians’ appendix. Grandmother also requests attorney fees pursuant to Appellate Rule 66(E) on the basis that the Guardians’ inclusion of these materials was bad faith. We think otherwise and decline Grandmother’s invitation to award attorney fees.

      . Although many of this Court’s decisions refer to the Act as being enacted in derogation of the common law, this is not entirely correct as there were some common law visitation rights afforded to grandparents prior to its enactment. See In re Guardianship of Green, 525 N.E.2d 634, 636 (Ind.Ct.App.1988) (stating that despite the existence of preexisting common law rights, the courts have since strictly limited grandparent visitation to the grounds recognized in the Act).

      . M.A. was sentenced to serve sixty years in the Indiana Department of Correction.


author: MAY, Judge.

text:
    Danielle HELMS, Appellant-Plaintiff, v. Max H. RUDICEL, M.D., Open Door/BMH Health Clinic (a division of Cardinal Health Systems), Cardinal-Health Systems, d/b/a Ball Memorial Hospital, Anna M. Steinbarger, NP, and Emergency Physicians of Delaware County, P.C., Appellees-Defendants.
    No. 18A04-1202-CT-70.
    Court of Appeals of Indiana.
    April 9, 2013.

      Jerry Garau, Garau Germano Hanley & Pennington, P.C., Indianapolis, IN, Attorney for Appellant.
    Edward L. Murphy, Jr., William A. Ramsey, Murphy Ice & Koeneman LLP, Fort Wayne, IN, Attorneys for Cardinal Health Systems d/b/a Ball Memorial Hospital.
   OPINION

MAY, Judge.

Danielle Helms filed a lawsuit in Delaware Circuit Court (hereinafter “trial court”) against Dr. Max Rudicel, the Open Door Health Clinic (“the Clinic”), Cardinal Health Systems d/b/a Ball Memorial Hospital (“BMH”), Nurse Practitioner Anna Steinbarger, and Emergency Physicians of Delaware County for malpractice related to treatment she received during her pregnancy. The Defendants filed a motion for summary judgment because a federal court had already determined Dr. Rudicel and the Clinic were federal employees, and the limitation period during which Helms could have filed suit had run under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2679.

The trial court determined the federal decision was res judicata as to negligence claims related to the Clinic or Dr. Rudi-cel’s work there. It also determined BMH was not vicariously liable for actions by the Clinic or by Dr. Rudicel while at the Clinic. The court therefore dismissed the action against the Clinic with prejudice. However, the trial court found a question of fact regarding whether BMH might be vicariously liable for actions at BMH of Dr. Rudicel and Nurse Practitioner Steinbar-ger.

Helms appeals, arguing (1) the federal decision is not res judicata because that court did not address the issue now before us, (2) the medical providers at the Clinic might have been apparent agents of BMH, and (8) BMH might be vicariously liable even though the Doctor and Clinic are immune from liability. On cross-appeal, BMH challenges the determination BMH might have vicarious liability, arguing BMH told Helms its healthcare providers were independent contractors.

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

In June of 2005, Helms saw Dr. Rudicel at the BMH emergency room. Dr. Rudi-cel diagnosed Helms’ pregnancy and referred her to the Clinic for prenatal care. On multiple occasions between June and December 2005, Helms was treated by Dr. Rudicel or a resident who was working under his supervision.

When Helms went to BMH during- this period, she signed a consent form that stated “many of the physicians and other health care providers,” (e.g., App. at 187), who treat patients at Cardinal Health System facilities are not employed by BMH, but are independent contractors who have been “granted the privileges of using Cardinal Health System facilities to treat patients.” (Id.) Dr. Rudicel and Nurse Practitioner Steinbarger were not BMH employees.

A sign at the Clinic during that period read “OPEN DOOR/BMH HEALTH CENTER” and “CARDINAL HEALTH SYSTEMS, PARTNERS IN BILLING.” (App. at 66.) Helms’s medical records were labeled “Ball Memorial Hospital Obstetrical History/Physical/Prenatal Record.” (Id. at 79.) Her appointment reminders were from “Open Door/BMH Health & Dental Center.” (Id. at 77.) A patient information handout said Dr. Rudi-cel was “in charge of the day to day running of the OB clinic,” (id. at 72), and the Clinic was “part of the Medical Education program at Ball Memorial Hospital” so there would be interns and residents working with Dr. Rudicel. (Id.) It said there were nurse practitioners in training from time to time, and that patients might not see Dr. Rudicel at each visit, but he and the residents “do the deliveries.” (Id.) The residents who saw Helms at the Clinic were in a “residency program through Cardinal Health Ball Memorial Hospital,” (id. at 118), and BMH paid their salaries.

Helms believed the Clinic was part of BMH and Dr. Rudicel and the residents were employed by BMH. She “assumed,” (App. at 66), from the information noted above, that Dr. Rudicel and the interns and residents who cared for her were providing the services “by and through” BMH. (Id.)

Helms filed a complaint in October 2007 before the Department of Insurance, alleging negligence in her prenatal care between June and December 2005 resulted in a stillbirth. In December 2007, Helms learned the Clinic was not a division of BMH, but was a federally-supported health care center. The Clinic and its employees were therefore considered federal employees and were immune from suit pursuant to the FTCA. By the time Helms discovered these statutes applied, the two-year limitations period for a federal tort claim had expired. Helms brought an action in federal court anyway, and the court granted summary judgment for the United States. Adkins v. United States, acting by & through United States D.H.H.S., 1:10-CV-0018-JMS-DML, 2011 WL 666713 (S.D.Ind. Feb. 14, 2011).

In July 2011, Helms moved in the Delaware Circuit Court for partial summary judgment on the question whether the people who treated her at the Clinic were apparent agents of BMH as a matter of law. BMH brought a cross-motion in which it argued the federal court’s decision bars Helms from pursuing an action against BMH. The trial court held:

1. [BMH] is not vicariously liable for any act of [the Clinic] or its employees or any act of Dr. Rudicel performed at the Clinic.
2. [BMH] may be vicariously liable for any act of Dr. Rudicel or Nurse Practitioner Steinbarger at BMH. There is a fact question whether the Consent Form given to [Helms] at the Hospital was adequate notice that Dr. Rudicel and N.P. Steinbarger were not Hospital employees or agents when providing care to Helms at the Hospital’s Emergency Room.
3. The Motion to Dismiss filed by [the Clinic] is well taken and should be granted. [The Clinic] is dismissed from this action with prejudice.
4. The Order from the Southern District of Indiana on the Motion for Summary Judgment is res judicata as to claims of negligence related to [the Clinic] and Dr. Rudicel’s actions at the Clinic.
5. [The clinic] and [BMH] are separate entities. [BMH] is not liable for action of the Clinic.

(App. at 11.)

Helms appeals, and BMH cross-appeals.

DISCUSSION AND DECISION

When reviewing a grant or denial of summary judgment our review is the same as it is for the trial court: whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Omni Ins. Group v. Poage, 966 N.E.2d 750, 758 (Ind. Ct.App.2012), trans. denied. Summary judgment should be granted only if the evidence sanctioned by Indiana Trial Rule 56(C) shows there is no genuine issue of material fact and the moving party deserves judgment as a matter of law. Id. All evidence is construed in favor of the opposing party, and all doubts as to the existence of a material issue are resolved against the moving party. Id.

1. Res Judicata Effect of Federal Court Decision

Helms learned the Clinic was not a division of BMH, but was a federally-supported health care center, which meant the Clinic and its employees were federal employees and immune from suit pursuant to the FTCA. Helms therefore brought an action in federal court against the United States. The federal court granted summary judgment for the United States. Adkins, 2011 WL 666713 at *5.

In granting summary judgment, the federal court said the “central question is whether the statute of limitations on actions brought under the FTCA bars Plaintiffs’ claim against the United States,” id. at *1, then noted any health center that receives federal funds

may be deemed an employee of the federal government. See 42 U.S.C. § 233(g)(1)(A), (4). Likewise, the employees of such health centers will be deemed federal employees. Id. As federal employees, both the federally funded health center and its employees are protected under the [FTCA] for acts in connection with medical or related functions committed within the scope of their employment. Id. [The Clinic] was deemed an employee of the Public Health Service as of June 1, 2003, and has continued to be covered by the FTCA, without interruption, since that time. [Dkt. 56-2 at 2, ¶ 7.] Because [the Clinic] and Dr. Rudicel are federal employees, they are protected by sovereign immunity from claims of negligence in the provision of health care services and are, therefore, immune from suit, except under the FTCA.

Id.

Helms then brought suit in state court. That court found the federal court order was res judicata as to “claims of negligence related to Open Door Clinic and Dr. Rudicel’s actions at the Clinic.” (App. at 11.) Res judicata serves to prevent repetitious litigation of disputes that are essentially the same. Dawson v. Estate of Ott, 796 N.E.2d 1190, 1195 (Ind.Ct.App.2003). The doctrine of res judicata includes claim preclusion, which applies when a final judgment on the merits has been rendered, and acts to bar a subsequent action on the same claim between the same parties. Id. When claim preclusion applies, all matters that were or might have been litigated are deemed conclusively decided by the judgment in the prior action. Id. Claim preclusion applies when the following four factors are present: (1) the former judgment was rendered by a court of competent jurisdiction; (2) the former judgment was rendered on the merits; (3) the matter now at issue was, or could have been, determined in the prior action; and (4) the controversy adjudicated in the former action was between parties to the present suit or their privies. Id. Actions in state courts that attempt to undermine federal court decisions amount to impermissible collateral attacks. Id. at 1196-97.

As the federal court did not address the issue now before us — whether BMH might be liable for actions of its apparent agents — that decision does not bar Helms from pursuing her action against BMH. BMH argues the federal court’s decision forecloses any action against BMH based on actions by the Clinic and Dr. Rudicel because the FTCA is Helms’s exclusive remedy and the only action that can be brought concerning the acts of the Doctor and Clinic is against the United States. The FTCA provides:

The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee’s estate is precluded without regard to when the act or omission occurred.

28 U.S.C. § 2679(b)(1) (emphasis added). Because the FTCA is an exclusive remedy for torts committed by federal employees acting within the scope of their employment, if recovery is not available against the United States under § 2680, it is not available at all. Brown v. Armstrong, 949 F.2d 1007, 1013 (8th Cir.1991).

The references to FTCA exclusivity are explicitly to the employee of the government, and the federal court found only that the Doctor and Clinic were federal employees. It did not find BMH was a federal employee. While the FTCA precludes further actions against the “employees” — i.e., the Doctor and the Clinic, we decline to hold the FTCA precludes an action against the employee’s apparent principal when that apparent principal has not been adjudicated a government employee covered by the FTCA. See, e.g., Abrams v. Sinon, 44 Mich.App. 166, 205 N.W.2d 295, 298 (1972), aff'd, 390 Mich. 387, 212 N.W.2d 14 (1973) (while the FTCA barred a direct suit against a government employee driver, it did not bar a separate action against the owner of a motor vehicle negligently driven by the government employee). The trial court’s determination the federal decision is res judicata as to claims of negligence by the Clinic or by Dr. Rudicel while at the Clinic was error.

2. Apparent Agency

As this state court action against BMH is not precluded by the FTCA, we turn to the question whether there is a genuine issue of fact as to whether Dr. Rudicel and the health care providers who treated Helms at the Clinic were apparent agents of BMH. As there is such an issue, summary judgment for BMH on the question whether it might have vicarious liability for the acts of the Doctor and others at the Clinic was error.

A principal is liable for the acts of his agent that were committed within the scope of the agent’s actual or apparent authority. Pollas v. Hardware Wholesalers, Inc., 663 N.E.2d 1188, 1190 (Ind.Ct.App.1996), reh’g denied. Apparent authority refers to a third party’s reasonable belief that the principal has authorized the acts of its agent; it arises from the principal’s manifestations to a third party and not from the representations or acts of the agent. Gallant Ins. Co. v. Isaac, 751 N.E.2d 672, 675 (Ind.2001). The manifestations can originate from direct or indirect communication, or from advertisements to the community. Sword v. NKC Hospitals, Inc., 714 N.E.2d 142, 148 (Ind.1999).

In Sword, our Indiana Supreme Court expressly adopted, in the specific context of a hospital setting, the formulation of apparent agency set forth in the Restatement (Second) of Torts. Id. at 152. That section provides:

One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.

Restatement (Second) of Torts § 429 (1965). If, because of the principal’s manifestations, a third party reasonably believes that, in dealing with the apparent agent, he is dealing with the principal’s servant or agent and exposes himself to negligent conduct because of the principal’s manifestations, then the principal may be held liable for that negligent conduct. Sword, 714 N.E.2d at 149. Therefore, “a trier of fact must focus on the reasonableness of the patient’s belief that the hospital or its employees were rendering health care.” Id. at 152.

The reasonableness of a patient’s belief about who was rendering service is determined by considering the totality of the circumstances, including the actions or inactions of the hospital and any special knowledge the patient may have had about the hospital’s arrangements with its physicians. Id. A hospital

will be deemed to have held itself out as the provider of care unless it gives notice to the patient that it is not the provider of care and that the care is provided by a physician who is an independent contractor and not subject to the control and supervision of the hospital. A hospital generally will be able to avoid liability by providing meaningful written notice to the patient, acknowledged at the time of admission.

Id. (emphasis added).

In Sword, our Indiana Supreme Court found issues of fact as to whether a doctor was an apparent agent of the hospital. Nothing in the record indicated the hospital “did anything to put Sword on notice that it was her physician, an independent contractor, who was responsible for her medical care and not the hospital.” Id. at 152. Nor was this

a case where plaintiff selected her own anesthesiologist prior to admission, for she specifically testified that she did not know who would administer the epidural until just before the procedure, and if she had any special knowledge of the hospital’s employment arrangement with Dr. Luna or with the hospital’s general employment practices with respect to physicians, it is not apparent on this record. Finally, [the hospital] held itself out, through an extensive advertising campaign, as a full-service hospital which specializes in obstetric care.

Id. at 152-53.

The Sword Court noted counsel’s reference to a document titled “Condition of Admission and Authorization for Treatment,” which counsel asserted informed Sword that her physician was not an employee of the hospital and that the hospital was not liable for any acts of the practicing physician. Id. at 152 n. 16. The document was not in the record, but our Supreme Court noted that, assuming the references were correct,

it is far from clear that this document would constitute sufficient notice of the relationship between the hospital and the physician.... In fact, it is likely insufficient notice if it is the sole source of notice and if plaintiff did not read or sign that form until she arrived at the hospital in active labor.

Id.

Helms notes the evidence that a sign at the Clinic read “OPEN DOOR/BMH HEALTH CENTER” and “CARDINAL HEALTH SYSTEMS, PARTNERS IN BILLING,” (App. at 66), her medical records were labeled “Ball Memorial Hospital Obstetrical History/Physical/Prenatal Record,” (id. at 79), her appointment reminders were from “Open Door/BMH Health & Dental Center,” (id. at 77), a patient information handout said Dr. Rudicel was “in charge of the day to day running of the OB clinic,” (id. at 72), the Clinic was “part of the Medical Education program at Ball Memorial Hospital,” (id.), the residents who saw Helms at the Clinic were in a “residency program through Cardinal Health Ball Memorial Hospital,” (id. at 118), BMH paid the residents’ salaries, and BMH paid Dr. Rudicel a teaching stipend for training the family practice residents. She believed the Clinic was part of BMH and Dr. Rudicel and the residents were employed by BMH, and she assumed Dr. Rudicel and the interns and residents who cared for her were providing the services through BMH. All this, Helms argues, gives rise to a genuine issue of fact as to whether she could have reasonably believed the Doctor and other health care providers at the Clinic were acting on behalf of BMH.

BMH argues the designated evidence does not permit a finding of apparent agency. Some of it — such as the signage at the Clinic, statements on the Clinic’s medical records, the appointment reminders the Clinic sent Helms, and a handout she received from the Clinic — involves acts by the Clinic, not BMH. BMH correctly notes the apparent authority doctrine is based on manifestations by the principal, not the agent, see id. at 148 (the manifestation must be made by the principal to a third party), and argues Helms is relying on manifestations by the Clinic.

But the Sword Court instructs us that manifestations sufficient to create an apparent agency may also originate from “indirect communication” or from “advertisements to the community,” id., and there were such advertisements and indirect communications in the record before us. Advertisements to the community reflected the Clinic’s ties to BMH. The Clinic’s name was Open Door/BMH Health Clinic, and the records of clinic patients were maintained on BMH forms. These advertisements and “indirect communications” give rise to a genuine issue whether the Clinic and its health care providers might have been apparent agents of BMH.

Nor may we accept BMH’s argument Helms could not have reasonably believed the Clinic was an agent of BMH because of the consent forms she signed. A hospital will be deemed, to have held itself out as the provider of care unless it gives notice to the patient that it is not the provider of care and that the care is provided by a physician who is an independent contractor and not subject to the control and supervision of the hospital. Sword 714 N.E.2d at 152. On multiple occasions Helms signed forms that said “many” of the physicians and other health care providers, (e.g., App. at 187), who treat patients at Cardinal Health System facilities are not employed by BMH, but are independent contractors who have been “granted the privileges of using Cardinal Health System facilities to treat patients.” (Id.)

A hospital generally will be able to avoid liability by providing meaningful written notice to the patient, acknowledged at the time of admission. Sword, 714 N.E.2d at 152. As in Sword the consent forms Helms signed did not provide “meaningful” notice. The notice referred only to “many” of the health care providers at the Clinic, “leaving the patient to guess as to which ones are and which ones are not” hospital employees. (Helms Br. at 12.)

BMH, relying on case law addressing adequate notice in other contexts, argues the burden is not on BMH to show Helms knew Dr. Rudicel and the health care providers at the Clinic were not BMH employees — instead, it argues, the burden was on Helms to inquire about their status. See, e.g., Ashland Pipeline Co. v. Indiana Bell Tel. Co., Inc., 505 N.E.2d 483, 487 (Ind.Ct.App.1987) (“Whatever fairly puts a person on inquiry is sufficient notice, where the means of knowledge are at hand; and if he omits to inquire, he is then chargeable with all the facts which, by a proper inquiry, he might have ascertained.”), reh’g denied trans. denied.

That standard is inconsistent with our Supreme Court’s explicit language in Sword and therefore cannot be the standard for “meaningful” notice in the case before us. Sword instructs us that a hospital will “be deemed to have held itself out as the provider of care unless it gives notice to the patient that it is not the provider of care and that the care is provided by a physician who is an independent contractor and not subject to the control and supervision of the hospital.” 714 N.E.2d at 152 (emphasis added). The BMH consent forms did not do that — they told Helms only that there was a possibility her physician might not be a BMH employee. As there is a genuine issue whether the Doctor and Clinic might have been apparent agents of BMH, summary judgment for BMH was error.

3. Hospital’s Liability if Apparent Agents Have Immunity

The federal court held Dr. Rudicel and the Clinic were federal employees and im-mime from suit under the FTCA. But that immunity, which was premised on the running of a limitations period and not on the Doctor’s or Clinic’s liability for tortious acts, does not extend to BMH. BMH might therefore be vicariously liable for the acts of its apparent agents even if the agents are individually immune from suit.

We recently so held in Columbus Reg’l Hosp. v. Amburgey, 976 N.E.2d 709, 716 (Ind.Ct.App.2012), trans. pending. There, we determined a complaint against a hospital could go forward under a theory of vicarious liability even though suit against the independent contractor physicians whose acts were at issue was barred by a statute of limitations. Id.

Amburgey argued two independent contractor physicians were apparent agents of the hospital. The hospital responded that the statute of limitations had run on any claims against the doctors, and there was no basis for liability against the hospital without a basis for liability against the doctors. We accepted an interlocutory appeal on this question:

Whether the trial court erred in finding that genuine issues of material fact existed in medical malpractice complaint against the [Hospital] based, in part, on a theory of ostensible agency liability for the alleged acts of two (2) independent contractor physicians where the alleged ostensible agents of the [Hospital] cannot be independently held liable because they have not been named as defendants and the statute of limitations has run against them.

Id. at 713.

We determined an action against the hospital was not precluded:

[W]e turn to the issue of whether the expiration of the statute of limitations regarding any claim against Dr. Xu or Dr. Harris forecloses Amburgey’s claim against the Hospital. We observe that there is no designated evidence suggesting that Amburgey ever brought a claim directly against Dr. Xu or Dr. Harris that was dismissed on the basis of the running of the statute of limitations. The designated evidence also does not reveal a judicial order finding that Dr. Xu and Dr. Harris were not negligent. Further, Amburgey filed the complaint against the Hospital prior to the running of the applicable statute of limitations.
While Indiana has not addressed this specific issue, we observe that some of our sister states have concluded that the running of a statute of limitations with respect to a physician does not preclude a complaint against a hospital on a theory of vicarious liability and apparent authority. See Abshure v. Methodist Healthcare—Memphis Hosps., 325 S.W.3d 98, 112 (Tenn.2010) (observing that the plaintiffs- filed a proper vicarious liability claim against a hospital before their claims against a doctor were extinguished by operation of law and holding that the subsequent procedural bar of their claims against the doctor did not prevent the plaintiffs from pursuing their timely filed vicarious liability claim against the hospital); Kashishian v. Port, 167 Wis.2d 24, 481 N.W.2d 277, 286-287 (1992) (holding that the doctrine of apparent authority could be a basis for a medical malpractice action against a hospital for the negligent acts of independent contractors, that the dismissal of the independent contractor based upon the failure to timely file a notice of claim was not a determination of the physician’s negligence, and that such a dismissal was appropriate despite the fact that the suit could be maintained against the hospital), reconsideration denied; Pamperin v. Trinity Mem’l Hosp., 144 Wis.2d 188, 423 N.W.2d 848 (1988) (Steinmetz, J., dissenting) (noting that the statute of limitations had run against the negligent doctors and they could not be joined as defendants; the majority in Pamperin allowing the plaintiffs to proceed with their lawsuit against the hospital).

Id. at 715-16 (emphasis added).

We acknowledge the decisions cited by BMH that hold, in other contexts, that a principal cannot be vicariously liable if an action could not be maintained against the tortfeasor agent. See, e.g., Comer-Marquardt v. A-1 Glassworks, LLC, 806 N.E.2d 883, 887 (Ind.Ct.App.2004). Those decisions are distinguishable. For example, in Comer-Marquardt we held:

[Ujnder the doctrine of respondeat superior, a master or principal is chargeable with, and liable for, any tortious act committed by his servant or agent while such servant or agent is acting in the course of his employment and in the line of his duty. Conversely, if the servant or agent is released of liability, no liability can be imputed to the principal. Thus, it is axiomatic that a judgment in favor of an employee requires judgment in favor of his employer when the employer’s liability is predicated solely upon the acts of said employee.

Id. (citations and internal quotation omitted). In the case before us, there was no judgment in favor of an employee as to liability as there was in Comer-Marquardt; there could not have been, as Dr. Rudicel and Clinic had federal immunity.

Similarly, in Grzan v. Charter Hasp. of Nw. Indiana, 702 N.E.2d 786, 792 (Ind.Ct.App.1998), the agent, a mental health counselor, was released from liability when he won summary judgment in a malpractice suit against him. Therefore, no negligence could be imputed to the principal, a hospital for which the counselor worked. We said: “Because we have concluded that the trial court properly entered summary judgment in favor of [a mental health counselor] on Grzan’s claims of malpractice and negligence, Charter [Hospital] cannot be held liable under the doctrine of respondeat superior.” Id. (emphasis added).

As the suit against the Doctor and Clinic in the case before us was, as in Amburgey, barred by a statute of limitations and not by a judgment regarding their allegedly tortious acts, we find 4m-burgey controls. Summary judgment for BMH premised on the immunity of its alleged apparent agents was therefore error.

4. Cross-Appeal Issue — The Hospital’s Vicarious Liability

The trial court correctly found BMH might be vicariously hable for acts by Dr. Rudicel or Nurse Practitioner Ste-inbarger while at the hospital: “There is a fact question whether the consent form given to Plaintiff at the Hospital was adequate notice that [the Doctor and nurse] were not Hospital employees or agents” when they treated Helms at the emergency room. (App. at 11.) As we have explained above, there is a genuine issue whether the BMH consent form provided “meaningful” notice in light of the Sword requirement the hospital tell the patient “it is not the provider of care and that the care is provided by a physician who is an independent contractor and not subject to the control and supervision of the hospital.” 714 N.E.2d at 152 (emphasis added). BMH’s notice that “many” providers are independent contractors does not appear to satisfy that requirement, and the trial court correctly found there was a genuine issue as to the adequacy of notice.

CONCLUSION

As the federal decision is not res judica-ta as to BMH’s potential liability as the Doctor and Clinic’s apparent principal and there is a fact question as to such apparent agency, summary judgment for BMH was error. The trial court correctly found BMH might be vicariously liable for any act of Dr. Rudicel or Nurse Practitioner Steinbarger at BMH. We accordingly affirm in part, reverse in part, and remand.

Affirmed in part, reversed in part, and remanded.

ROBB, C.J., and PYLE, J., concur.

      . The federal court’s decision explicitly mentioned only Dr. Rudicel and the Clinic. It did not address the Nurse Practitioner or Emergency Physicians, who are named parties in this appeal. The appeal before us arises out of Helms’s motion for preliminary determination of law and for partial summary judgment on the limited issue as to whether BMH/Cardinal Health Systems might have some liability for acts of Dr. Rudicel and the Clinic as their apparent principal. The parties do not address the Nurse Practitioner except to the extent she might be included as one of the health care providers who treated Helms at the Clinic. Nor do they address whether acts by Emergency Physicians are implicated by any issues raised in Helms’s motion.

      . We heard oral argument in Indianapolis on February 18, 2013, before participants in the Indiana State Bar Association Leadership Development Academy. We thank the Academy for joining us, and we commend counsel on the quality of their oral advocacy.

      .42 U.S.C.. § 233(g)(1)(a) provides an entity deemed a Public Health Service employee, and any:
      employee of such an entity, and any contractor of such an entity who is a physician or other licensed or certified health care practitioner ... shall be deemed to be an employee of the Public Health Service.... The remedy against the United States for an entity described in paragraph (4) and any officer, governing board member, employee, or contractor (subject to paragraph (5)) of such an entity who is deemed to be an employee of the Public Health Service pursuant to this paragraph shall be exclusive of any other civil action or proceeding to the same extent as the remedy against the United States is exclusive pursuant to subsection (a) of this section.

      . Adkins was Helms’s co-plaintiff.

      . Ind.Code § 34-18-11-1 provides a court that has jurisdiction over the subject matter and the parties to a proposed complaint filed with the Department of Insurance may preliminarily determine certain affirmative defenses or issues of law or fact and may entertain a motion filed after a proposed complaint is filed but before the medical review panel gives its opinion.

      . BMH also argues Amburgey can be distinguished. We noted in Amburgey there was no designated evidence that Amburgey ever brought a claim directly against the independent contractor doctors that was dismissed on statute of limitations grounds, there was no judicial order finding the doctors were not negligent, and Amburgey sued the Hospital before the applicable statute of limitations had run. Those factual differences do not require a different result in the case before us. Helms could not have brought a claim directly against the Doctor and Clinic because they were immune under the FTCA.