author: VAIDIK, Judge.

text:
    Ruth SHEEK, Appellant/Appellee, v. MARK A. MORIN LOGGING, INC., Appellee/Appellant.
    No. 07A01-1211-PL-509.
    Court of Appeals of Indiana.
    Aug. 29, 2013.

      Michael R. Auger, Franklin, IN, Attorney for Appellant.
    James T. Roberts, James T. Roberts, PC, Nashville, IN, Attorney for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Ruth Sheek, who owned fifty-three wooded acres in Brown County, Indiana, entered into a contract with a logging company to have specific trees cut down. When Ruth realized the severity of the damage being done to her property during the timber-harvest process, she stopped the entire operation. The logging company performed some remediation work, but damage to Ruth’s property still remained. Ruth sued for breach of contract, and the logging company counterclaimed for breach of contract. The trial court awarded Ruth $55,572.50 in damages.

Ruth appeals arguing that the trial court used the wrong measure of damages for the injury to her real property and that the court erred by reducing her damages by the value of the unharvested trees the loggers left on her property. Because the record shows that the damage to Ruth’s property is temporary rather than permanent, the trial court properly used the cost of repair, and not the difference between the market value before and after the injury, to calculate the damages. We also conclude that, because Ruth was paid for all the trees and the loggers left behind $4000 in unharvested trees, the trial court properly reduced Ruth’s damages by $4000 to avoid a windfall. We therefore affirm the trial court.

Facts and Procedural History

Ruth owns approximately fifty-three wooded acres on Gatesville Road in Brown County, Indiana. She purchased the property in 1966. The property has a small cabin with a stone path leading to a 2.5-acre lake. The cabin is a second home for Ruth, who lives in Greenwood.

In June 2009, an agent for Bedford, Indiana-based Mark A. Morin Logging, Inc. (“Morin Logging”) stopped by the cabin to see if Ruth was interested in selling her timber. Ruth’s timber had been harvested approximately fifteen years earlier. After some discussion, on June 27, 2009, Ruth and Morin Logging entered into a written contract entitled “Sale of Standing Timber.” Pl.’s Ex. 8, p. 1. According to the contract, Ruth agreed to sell all trees “18 diameter inches and larger at the stump” on her fifty-three-acre tract to Morin Logging. Id. The contract also called for any trees within thirty feet of the lake to be cut and pulled back and for Morin Logging to “level skid roads [and] loading area.” Id. at 3. The contract, which was in effect from June 27, 2009, to July 1, 2010, provided that the timber harvest would be done in a “workmanship like manner without undue disturbance or residual damage to the premises.” Id. at 1, 2. However, the contract also warned that “the timber harvest process involves the use of men, tools, and equipment upon the premises and incidental forest growth[,] and residual damage occurs.” Id. at 2.

The contract price was $21,000. Morin Logging paid $1000 down. Morin Logging used Hamilton Logging, Inc., from Mar-tinsville, Indiana, as a subcontractor to harvest Ruth’s timber. Hamilton Logging began to harvest the timber in December 2009, at which point Ruth was paid the remaining $20,000.

The timber-harvest process requires the use of heavy equipment called skidders. Hamilton Logging used the loading area and skid roads that were present on Ruth’s property from the previous logging operation to avoid additional damage. However, Hamilton Logging expanded the loading area and skid roads and added twenty tons of stone to the loading area, even though this was not specifically addressed in the contract. Tr. p. 237.

When Hamilton Logging began logging Ruth’s property in December 2009, the ground was frozen. However, the weather warmed up in mid-December and the ground quickly thawed, causing the skid-ders to sink. The logging was approximately two-thirds finished at the time. Hamilton Logging continued operations because they “thought [they] could get it done,” id. at 205, but doing so caused deep ruts in the skid trails. Some ruts were three feet deep and three feet wide.

At about the same time, one of Ruth’s Brown County neighbors called her in Greenwood and advised her to check on her property. Ruth immediately went to her Brown County property where she discovered a “huge” staging area with “a whole bunch of rocks,” huge ruts, damaged standing trees, and discarded tree tops and tree trunks piled up with dirt or mud. Id. at 142. Ruth, who was very upset, approached the loggers and told them to leave. Ruth also took pictures and went to the Brown County sheriff and prosecutor in an effort to stop the logging, but she was unsuccessful. On December 18, Ruth’s attorney sent Morin Logging a “cease and desist” letter. Def.’s Ex. 13. According to Ruth, the logging did not stop until sometime in February 2010. When the loggers finally left Ruth’s property, there were numerous trees that remained to be cut pursuant to the contract with a value of $4000.

Remediation measures were required to repair the extensive damage to Ruth’s property. Ruth gave Hamilton Logging permission to reenter her property to remediate the damage. Hamilton Logging hired a forester to advise them on what should be done. In November 2010, Hamilton Logging brought in a bulldozer to fill and level the rutted areas, installed water bars to prevent further erosion from the skid trails, and hired a landscape company to seed and straw the graded areas. Hamilton Logging spent $20,427.50 in remediation. Def.’s Ex. 17.

Before Hamilton Logging completed this remediation .work, Ruth hired forest consultant Don Duncan in March 2010 to inspect her property. According to Duncan, the harvesting of Ruth’s timber occurred at the worst time of the year — generally November and December when the ground is wet but not yet frozen. Duncan, who took numerous photographs that were admitted into evidence at trial, was “very surprised at the visual damage done on [Ruth’s] woodland.” Id. at 18. Duncan explained that timber operations always produce rutting, but what occurred on Ruth’s property was “extreme.” Id. at 25. Duncan explicated that “the hidden effect of logging in the mud is the removal of air pockets in the soil, and root mortality, resulting in very compacted conditions and future tree mortality during the hot summer months.” Pl.’s Ex. 85. Duncan also observed skid damage to the pond emergency spillway which could compromise the dam, ruts leading to the pond which would result in sedimentation and shortened pond life, and the ruts themselves which would result in permanent stagnant water, increased mosquitos, major aesthetic disturbance, the inability to enjoy the property, and tree mortality. Id. Duncan concluded that contrary to the contract between Ruth and Morin Logging, the work was done with both “undue disturbance” and “residual damage” to Ruth’s property. Id. According to Duncan, it would take 40 to 100 years for Ruth’s woods to regenerate. Tr. p. 62-63.

Duncan inspected Ruth’s property again after Hamilton Logging completed the remediation work and noted a “huge improvement” from the “very deep ruts closed in and water-bars installed.” Id. at 54; Pl.’s Ex. 86. However, Duncan observed that the following problems remained:

(1) According to the Indiana Department of Natural Resources Best Management Guidelines, additional water bars were needed to meet minimum specifications on the steeper slopes.
(2) The bull dozer did not rake in the “curb” along the skid trails caused by the dozer blade, which prevented water from flowing off the skid trails and resulted in ponding and erosion.
(3) The major skid trail removed an excess of soil, resulting in “bowling alleys,” which had become a permanent part of the landscape.
(4) The remediation did not include restoring the stone path to the lake. The contract required Morin Logging to pull back cut trees within thirty feet of the lake, which was not done. Instead, the trees piled up in the lake-view area, making pond access from the cabin “virtually impossible.”

Pl.’s Ex. 86. According to Duncan, these problems could have been fixed during the remediation. Tr. p. 54-55.

In March 2010, Ruth hired a certified real-estate appraiser, Charles Greller, who said that the value of Ruth’s property before the logging was $800,000. Id. at 96. However, he said that after the logging— but before Hamilton Logging’s remediation — the value of Ruth’s property was $150,000. Pl.’s Ex. 87. He arrived at $150,000 by subtracting the estimated costs of remediation — $75,000—plus an equal reduction for the “stigma” to a buyer of a damaged or distressed property. Tr. p. 96. Greller could not find comparable properties because “traditionally property that ha[s] been heavily timbered is not sold afterwards. So, the comparable sales are extremely limited, and in some cases, nonexistent.” Id. at 91-92. Notably, Greller did not reappraise Ruth’s property after Hamilton Logging’s remediation work. Ruth, on the other hand, believed that her property was worth $500,000 before the logging but only $100,000 afterwards.

In April 2010, Ruth filed a complaint for breach of contract against Morin Logging. Ruth alleged that Morin Logging caused “undue disturbance and residual damage to [her] Real Estate, in breach of the Contract.” Appellant’s App. p. 9. For example, Ruth alleged that Morin Logging caused extreme rutting, skid damage to the pond emergency spillway, ruts leading to the pond, root damage to the trees, and disturbance to the soil. Ruth alleged that as a result of Morin Logging’s actions, she “has suffered diminution of the value of the Real Estate as well as the costs to repair and restore the Real Estate to its prior condition.” Id. Morin Logging responded with a counterclaim for breach of contract. Morin Logging alleged that on or about December 18, 2009, Ruth breached the contract by denying Morin Logging and its agents and employees access to the harvest area, and at the time of the denial of access, “more than 200 trees remain[ed] to be harvested pursuant to the contract. ...” Id. at 14.

A bench trial was held in July 2012. In October 2012, the trial court issued extensive findings of fact and conclusions of law. The relevant ones follow:

27. Although [Ruth] testified that the difference in the value of her property before and after the damage from the Morin logging was $400,000.00 ($500,000 prior to the damage and $100,000 after), the court finds the values of the property and damage done to be more in line with the testimony of Mr. Greller.
28. The value of [Ruth’s] property has been diminished by unremediated damage done by Morin.
29. However, the court finds that the market value of the property also was adversely affected by the significant degree of timbering permitted under the terms of the contract agreed to by [Ruth]. A contract that allowed for the removal of all trees 18" in diameter “at the stump,” whether measured at the ground or a few feet higher, allowed for the removal of a lot of trees. As Mr. Greller testified, it was difficult to even find a comparable property for valuation purposes because property that has been recently timbered, especially to this degree, is usually not offered for immediate sale. A very large part of the changed aesthetics of the property is the openness of the woodland due to the intensity of the cut and number of trees taken, a result permitted by the terms of the contract. Moreover, some of the complaints raised by [Ruth], such as the unsightly appearance of the tops and branches left behind, will exist after any logging operation and are in accordance with best practices, though the unsightliness is compounded if the tops are placed in piles.
2. Morin breached the contract by failing to perform the logging in a workman like manner without undue disturbance or residual damage to the premises. Specifically, Morin logged [Ruth’s] property in soil conditions that were too wet, causing extreme ruts and unnecessarily compacted soils, scarring the land with parallel and excessive skid trails, failing to create all necessary water bars, and causing undue disturbance to and damage to [Ruth’s] property. Morin further breached the Contract by failing to pull back trees from the lake area and by damaging the stone pathway to the lake.
⅜ ⅜ ⅜ ⅝ ⅜ ⅜
5.A party first guilty of a material breach of contract may not maintain an action against the other party or seek to enforce the contract against the other party should that party subsequently breach the contract. Because [Morin] first breached the contract by logging in soil conditions that were too wet causing extensive damage to [Ruth’s] property, Morin cannot recover on its counterclaim for subsequent breach of the contract by [Ruth].
6. The measure of damages for permanent injury to real estate is the difference between the market value before and after the injury. The measure of damages for non-permanent damage to real property is the amount which would be required to restore it to its original condition.
7. Whether the damage occasioned by Morin’s breach of contract is temporary or permanent is not altogether clear cut. The evidence established that on average, a wooded tract can be re-entered for timbering every 15-20 years depending on how many trees are cut. Due to the intensity of the logging on [Ruth’s] property, however, the evidence established it could take 40-100 years to restore the woods. Thus, while the woods could eventually be restored, such restoration would require a time frame that could extend well beyond [Ruth’s] lifetime. However, it was terms of the contract itself that allowed for such a significant removal of trees, not Morin’s breach.
8. The court finds that the damages that resulted from Morin’s breach are non-permanent and can be remediated.
9. The court finds the appropriate damages in this case to be the total cost of remediation less the cost of remediation already performed by Morin and less the value of the remaining trees in excess of 18" in diameter that could have been harvested by Morin under the contract.
10. The evidence of the total cost of remediation from Mr. Greller, not including repairing the path to the lake, was $75,000.00. The evidence was only an estimate and was not based on actual bids or estimates from contractors. It was, however, based on years of experience with real estate in Brown County. When there is doubt as to the exact proof of damages, the uncertainty must be resolved against the wrongdoer.
11. The court finds the amount of damages caused by Morin’s breach to be $55,572.50, calculated as follows: Total remediation costs of $75,000: plus $5,000 for damages to restore the path to the lake and pull back the trees from the lake; less $20,427.50 in remediation costs already performed by Morin; less $4,000.00 in trees Morin could have harvested under the contract.

Id. at 20-22 (citations omitted). Ruth appeals, and Morin Logging cross-appeals.

Discussion and Decision

Ruth raises two issues on appeal. First, she contends that the trial court used the wrong measure of damages for the injury to her real property; she argues that because the injury to her property is permanent rather than temporary, the proper measure of damages is the difference between the market value before and after the injury. Second, she contends that the trial court erred in reducing her damages by the value of the unharvested trees the loggers left on her property.

Morin Logging cross-appeals, arguing that the trial court erred in using Greller’s $75,000 remediation estimate as the starting point for damages in this case.

Both parties challenge damages. Our review of a damages award is limited. Four Seasons Mfg. v. 1001 Coliseum, LLC, 870 N.E.2d 494, 507 (Ind.Ct.App.2007). We do not reweigh the evidence or judge the credibility of witnesses, and we will reverse an award only when it is not within the scope of the evidence before the finder of fact. Id. A factfinder may not award damages on the mere basis of conjecture and speculation. Indianapolis City Mkt. Corp. v. MAV, Inc., 915 N.E.2d 1013, 1024 (Ind.Ct.App.2009). Instead, the award must be supported by probative evidence. Four Seasons, 870 N.E.2d at 507.

Where, as here, a trial court has entered findings of fact and conclusions thereon pursuant to a party’s request, we engage in the following two-tiered standard of review. We must first determine whether the evidence supports the findings of fact and then whether the findings support the judgment. Gates v. Houston, 897 N.E.2d 532, 534 (Ind.Ct.App.2008). We will not reverse the trial court’s findings and judgment unless they are clearly erroneous. Findings of fact are clearly erroneous when the record lacks any facts or reasonable inferences from the evidence to support them. Id. The judgment is clearly erroneous when it is unsupported by the findings of fact and conclusions entered on the findings. Id. at 534-35. In making these determinations, we will neither reweigh the evidence nor judge witness credibility, considering only the evidence favorable to the judgment and all reasonable inferences therefrom. Id. at 535. While we defer substantially to findings of fact, we do not do so for conclusions of law. Id. We apply a de novo standard of review to conclusions of law and owe no deference to the trial court’s determination of such questions. Id.

I. Ruth’s Appeal

A. Measure of Damages

Ruth contends that the trial court used the wrong measure of damages. The measure of damages in a case of injury to real property depends on whether the injury is permanent or temporary. Terra-Products, Inc. v. Kraft Gen. Foods, Inc., 653 N.E.2d 89, 91 (Ind.Ct.App.1995), trans. denied. Permanent injury to unimproved land occurs where the cost of restoration exceeds the market value before the injury. Id. If the injury is permanent, the measure of damages is limited to the difference between the fair market value of the property before and after the injury, based on the rationale that “economic waste” results when restoration costs exceed the economic benefit. Id.; Gene B. Glide Co. v. Marion Const. Corp., 165 Ind.App. 72, 331 N.E.2d 26, 37 (1975), reh’g denied. But if the injury is temporary, the proper measure of damages is the cost of repair. Terra-Products, 653 N.E.2d at 92; City of Anderson v. Salling Concrete Corp., 411 N.E.2d 728, 734 (Ind.Ct.App.1980); Glide Co., 331 N.E.2d at 37.

Here, there is no evidence that the remediation costs exceed the market value of Ruth’s property before the injury. Therefore, according to law, the injury to Ruth’s property was not permanent. Furthermore, the trial court found in fact that the injury to Ruth’s property was temporary and could be remediated. Appellant’s App. p. 22 (Conclusion No. 8). The trial court explained that while determining whether the injury to Ruth’s property was temporary or permanent was not “clear cut,” “it was the terms of the contract itself that allowed for such a significant removal of trees, not Morin’s breach.” Id. That is, Ruth entered into a contract in which she agreed to sell all trees “18 diameter inches and larger at the stump” on her fifty-three-acre tract to Morin Logging. And although it would take at least forty years to restore Ruth’s woods (as opposed to the usual fifteen or twenty), that was because of the number of trees removed, not the damage done to her property during the timber-harvest process. For the damage done to Ruth’s property during the harvest, such as the extreme rutting, excessive skid trails, the trees left near the lake, and the removal of the stone path to the lake, the trial court concluded that this damage was temporary and could be remediated. Id. Despite Ruth’s argument that evidence was presented that her property could not be further remediated because it would only further damage her property, she is simply asking us to reweigh the evidence, which we will not do. The trial court’s finding that the damage to Ruth’s property was temporary and remediable is supported by the evidence, including Ruth’s own witness, Duncan, who outlined additional work that could be done to Ruth’s property, including installing additional water bars, pulling back trees by the lake, and restoring the stone path to the lake. The trial court used the proper measure of damages.

Nevertheless, Ruth cites environmental-contamination cases, where this Court has held that the traditional distinction between temporary and permanent injury is ill-suited for determining damages, and asserts that this case falls neatly under that category. See Terror-Products, 653 N.E.2d at 92-93. In those cases, we held that a “hybrid” approach, which utilizes both the cost of repair and any reduction in the property’s value after repair, applies when there is environmental damage, such as polychlorinated biphenyls (PCB) contamination, to real property. Id. at 93. That is, if the plaintiff can demonstrate that repairs to real property fail to restore the land to its former value, recovery of damages for the property’s reduction in value is the only measure of damages which will fully compensate the landowner for his loss. More specifically, in the context of environmental contamination of land, a party should be entitled to recover as damages any proven reduction in the fair market value of real property remaining after remediation, i.e., the remaining loss damages. Id.

Here, the trial court found that the remediation to Ruth’s property would restore it to its market value after the trees were removed but before the damage. Ruth had the burden of proving otherwise but did not do so. See id. at 94 (“Nevertheless, Terra has not met its burden of designating evidence which would tend to establish that Kraft’s remediation did ‘not restore the value [of Terra Site] to its prior level’ or ‘to its fair market value before the causative event.’ ”). Therefore, the hybrid approach does not apply here.

B. Calculation of Damages

Ruth next contends that the trial court erred by reducing her damages by $4000, which is the value of the unharvested trees covered by the contract that the loggers left on her property. Morin Logging responds that the trial court properly reduced Ruth’s damages by $4000, because if Ruth were allowed to keep the value of the unharvested trees in addition to the $21,000 she already received pursuant to the contract, she would receive a “windfall.” Appellee’s Br. p. 12.

It is axiomatic that a party injured by a breach of contract may recover the benefit of its bargain but is limited in its recovery to the loss actually suffered. L.H. Controls, Inc. v. Custom Conveyor, Inc., 974 N.E.2d 1031, 1043 (Ind.Ct.App.2012). That is, a party injured by a breach of contract may not be placed in a better position than it would have enjoyed if the .breach had not occurred. Id. In addition, the law disfavors a windfall or a double recovery. See INS Investigations Bureau, Inc. v. Lee, 784 N.E.2d 566, 577 (Ind.Ct.App.2003), trans. denied.

The evidence shows that Ruth ended the contract early when she realized the extent of the damage the loggers were causing to her property. At the time, Ruth had been paid in full for the timber, $21,000, but all the timber had not been harvested or removed from her property. If Ruth kept the unharvested trees without subtracting their value from the total amount awarded to her, she would be placed in a better position than she would have been if the breach had never occurred. This is because Morin Logging paid for trees they never received. Thus, the trial court properly reduced Ruth’s damages by $4000.

II. Morin Logging’s Cross-Appeal

Morin Logging cross-appeals, arguing that the trial court erred in using Greller’s $75,000 remediation estimate as the starting point for damages in this case because his estimate “did not account for the degree to which Morin’s remediation improved [Ruth’s] property....” Appel-lee’s Br. p. 7.

Certified real-estate appraiser Greller said it would cost $75,000 to remediate Ruth’s property, but he made this estimate before Hamilton Logging remediated Ruth’s property. The record shows that Hamilton Logging spent $20,427.50 to remediate Ruth’s property. Forester Duncan testified that although Ruth’s property looked better after the remediation, additional problems remained. Duncan then outlined some corrections that could be made, including installing additional water bars, removing the trees from the lake, and restoring the stone path to the lake. Based on this evidence, the trial court concluded:

10. The evidence of the total cost of remediation from Mr. Greller, not including repairing the path to the lake, was $75,000.00. The evidence was only an estimate and was not based on actual bids or estimates from contractors. It was, however, based on years of experience with real estate in Brown County. When there is doubt as to the exact proof of damages, the uncertainty must be resolved against the wrongdoer.
11. The court finds the amount of damages caused by Morin’s breach to be $55,572.50, calculated as follows: Total remediation costs of $75,000: plus $5,000 for damages to restore the path to the lake and pull back the trees from the lake; less $20,427.50 in remediation costs already performed by Morin; less $4,000.00 in trees Morin could have harvested under the contract.

Appellant’s App. p. 22.

We find that the trial court properly used Greller’s $75,000 estimate as a starting point to determine the damages in this case. We initially note that Morin Logging does not challenge Greller’s authority to offer a remediation estimate in this case. Because the evidence shows that damages still remained to Ruth’s property after Hamilton Logging’s remediation work, it was reasonable for the trial court to subtract the amount that Hamilton Logging spent on remediation from the $75,000 estimate to determine the amount that Morin Logging still owed. Morin Logging’s arguments that the remediation work could have improved Ruth’s property more than $20,427.50 if Greller had provided a second estimate after the remediation work is merely speculation and more a product of the fact that Morin Logging did not present the trial court with its own estimate to contradict Greller’s. The trial court’s damage award is supported by the evidence.

Affirmed.

BAKER, J., and FRIEDLANDER, J., concur.

      . Ruth presented the facts of this case witness by witness. Indiana Appellate Rule 46(A)(6)(c) provides that the Statement of Facts “shall be in narrative form and shall not be a witness by witness summary of the testimony.”

      . Mark Morin from Morin Logging and Robert Hamilton from Hamilton Logging are first cousins.

      . Notably, Ruth did not allege that Morin Logging breached the contract by removing trees that were smaller than 18 inches in diameter at the stump.

      . An August 7, 2012, CCS entry provides that the parties were to meet at the courthouse for an on-site visit, but the CCS does not state whether the visit occurred. Appellant's App. p. 6; see also Tr. p. 305 (trial court discussing with counsel at the end of the bench trial that it would be helpful to see the property).

      .We would like to thank the trial court for its helpful and clear findings in this factually involved case.

      . For example, Ruth says that Robert Hamilton from Hamilton Logging testified that her property could not be further remediated. Robert actually testified that he would not recommend going back and doing any additional earth moving or remediation because in his opinion her property "look[ed] pretty good.” Tr. p. 229. When asked what additional remediation would cost, Robert said he did not know because Ruth’s property had already been "vegetated” and the ruts had already been "leveled.” Id. When asked if additional work would cause "more possible erosion or damage,” Robert said yes. Id.

      . In any case, the award Ruth seeks would put her in a better position than she was in before the timber was harvested from her property. Ruth entered into a contract to sell the timber on her property and received $21,000 for it. She cannot be awarded damages based on the pre-timbered value of her property and keep the payment for the standing-timber contract.

      . Ruth argues that because Morin Logging was the first party to breach the contract, Morin Logging is not entitled to recover on its counterclaim against her for ejectment. See, e.g., Illiana Surgery & Med. Ctr., LLC v. STG Funding, Inc., 824 N.E.2d 388, 403 (Ind.Ct.App.2005) ("A party first guilty of a material breach of contract may not maintain an action against the other party or seek to enforce the contract against the other party should that party subsequently breach the contract.” (quotation omitted)). The $4000 is not damages for the counterclaim the trial court rejected. The $4000 is merely a setoff so that Ruth did not receive a windfall.


source: Caselaw Access Project

author: PYLE, Judge.

license: Public Domain

text:
    In the Matter of the Trust of Dorothy RHOADES. Robert Kutchinski and Shelia Graves, f/k/a Shelia Kutchinski, Appellants-Petitioners, v. Joseph Strazzante and Monty Strazzante, Co-Trustees, Appellees-Respondents.
    No. 45A03-1206-TR-296.
    Court of Appeals of Indiana.
    Aug. 29, 2013.

      D. Eric Neff, Crown Point, IN, Attorney for Appellants.
    Robert G. Berger, Highland, IN, Attorney for Appellees.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

This appeal involves a family dispute between half-siblings — Robert Kutchinski (“Robert”), Sheila Graves flk/a Sheila Kutchinski (“Sheila”), John Kutchinski (“John”), Joseph Strazzante (“Joseph”), and Monty Strazzante (“Monty”) — over the revocable living trust (“the Trust”) created by their mother, Dorothy Rhoades (“Dorothy”). When Dorothy initially created the Trust in 2003, she included all her children as beneficiaries. In July 2010, eleven days before her death, Dorothy amended the Trust and other estate planning documents to exclude Robert as a beneficiary after Joseph contacted Dorothy’s attorney regarding changes to be made to the Trust.

After Dorothy’s death, Robert filed a petition to docket the Trust and to determine the Trust’s beneficiaries, alleging that Dorothy lacked testamentary capacity and was under the undue influence of Joseph when she amended the Trust and other estate planning documents. Joseph and Monty filed a motion for summary judgment, arguing that there were no genuine issues of material fact regarding testamentary capacity and undue influence and that they were entitled to judgment as a matter of law. Robert, Sheila, and John filed a joint summary judgment response, arguing that there were genuine issues of material fact regarding whether Dorothy was of sound mind and under undue influence at the time she amended the Trust in July 2010. The trial court granted the summary judgment motion. Robert now appeals the trial court’s order granting Joseph and Monty’s motion for summary judgment.

We reverse and remand.

ISSUES

1. Whether the trial court’s summary judgment order was a final, appeal-able order.
2. Whether the trial court erred by granting summary judgment to Joseph and Monty on the issues of testamentary capacity and undue influence.

FACTS

The facts considered in a light most favorable to Robert, the nonmoving party, follow. Dorothy had five children as a result of her first two marriages. On June 23, 2003, Dorothy executed the Trust, naming her natural born children — Robert, Sheila, John, Joseph, and Monty — as beneficiaries of the Trust. Dorothy named her third husband, Elmer Rhoades (“Elmer”), as trustee and named Joseph and Robert as successor co-trustees of the Trust.

On January 23, 2010, Dorothy was hospitalized with a kidney failure and placed in the intensive care unit (“ICU”). While Dorothy was in the ICU, Joseph — on his own initiative — obtained a power of attorney form from the internet and sought to have Dorothy sign the power of attorney. On January 25, 2010, a hospital social worker, Carolyn Davis (“Davis”), was in Dorothy’s room when Joseph tried to have Dorothy sign the power of attorney form. Davis, believing that Dorothy was confused and not able to understand what she was signing, prevented Joseph from having Dorothy sign the form.

The following day, on January 26, 2010, Joseph went back to the hospital and had Dorothy sign a power of attorney, naming him as the sole attorney-in-fact. Robert walked into Dorothy’s room and confronted Joseph about the form, but Joseph did not show Robert the form.

On January 28, 2010, Dorothy was moved from the ICU to a private room at the hospital. While Joseph and Robert were in Dorothy’s room, Joseph showed the power of attorney form to Robert, and they discussed it with Dorothy. Robert explained to Dorothy about the power of attorney form, and Dorothy apparently indicated that she wanted both Robert and Joseph to be joint attorneys-in-fact and to act together.

Thereafter, Robert contacted attorney Daniel Blaney (“Attorney Blaney”), who was a partner of Dorothy’s attorney who had retired. Subsequently, Attorney Bla-ney drafted an amended power of attorney and met with Dorothy, Robert, and Joseph at the hospital on February 4, 2010. Attorney Blaney talked to Dorothy about the amended power of attorney. Dorothy executed the amended power of attorney that named Robert and Joseph as joint attorneys-in-fact to make financial and personal decisions for her. The power of attorney became effective upon execution.

Around that same time, Dorothy also amended the Trust. The amendment to the Trust was also prepared by Attorney Blaney. Dorothy amended the Trust by naming Joseph and Robert as co-trustees of the Trust. Dorothy also “specifically omitted” Sheila as a beneficiary of the Trust. (App. 20). The Trust was signed by Dorothy as grantor and by Robert and Joseph as co-trustees. Additionally, Dorothy amended her beneficiary designations on her life insurance policies and excluded Sheila as a beneficiary, leaving the four sons as beneficiaries. Dorothy also amended her will to include a provision that provided for Sheila and John to each receive $5,000 for mental health care.

After Dorothy was released from the hospital, she had to get frequent dialysis treatments at her doctor’s office. Dorothy first lived with Monty from February 25, 2010 to March 18, 2010. While Dorothy lived with Monty, Robert helped take Dorothy to her dialysis treatments. On March 18, 2010, Robert took Dorothy to her dialysis treatment and later discovered that Monty had left Dorothy’s belongings on Monty’s front porch.

From March 18, 2010, to July 1, 2010, Dorothy lived at Robert’s house. While Dorothy lived at Robert’s house, she had a surgery to change the type of dialysis that she received. Her dialysis treatments were increased to a daily basis and then done at home instead of at the doctor’s office. The family was required to receive training to assist Dorothy with her dialysis. Dorothy’s doctor also had a family meeting with Dorothy’s children to explain that they needed to assist Robert in administering Dorothy’s dialysis. While Dorothy lived at Robert’s house, her primary medications were Tramadol and Xa-nax.

On July 1, 2010, Dorothy returned to her own home and was assisted by two healthcare providers, Wanda Kessler (“Caretaker Kessler”) and Edith Lucas (“Caretaker Lucas”), while at her home. From July 7 to July 12, 2010, Dorothy was hospitalized with abdominal pain. Upon Dorothy’s discharge from the hospital, she received prescriptions for Tramadol and Alprazolam and returned to her own home.

A few days later, Dorothy fell at her house and was again hospitalized. After her release from the hospital, Dorothy was taking the following medications: Tramadol, Hydrocodone, Xanax, Furosem-ide, Prochlorperazine, and Exforge. Around this time, Dorothy stopped her dialysis, and Caretaker Kessler and Caretaker Lucas stopped providing healthcare to Dorothy. Monty then hired Anita Ray (“Caretaker Ray”) as Dorothy’s healthcare provider.

On July 26, 2010, Joseph went to visit Dorothy. Joseph had not seen Dorothy for a few months. Two days later, on July 28, 2010, Joseph contacted Attorney Bla-ney and told him that Dorothy wanted to amend the Trust, the power of attorney, and her will. Attorney Blaney prepared amendments to these documents and met with Dorothy at her house on July 29, 2010. Dorothy amended her power of attorney to remove Robert as an attorney-in-fact and to name Joseph as her sole attorney-in-fact with power to act for her in all financial and personal matters.

In the amendment to the Trust, Dorothy “specifically omitted” Robert as a beneficiary of the Trust. (App. 22). Dorothy also excluded Sheila. Thus, the only children that were beneficiaries of Dorothy’s trust were Joseph, Monty, and John. Dorothy also amended the Trust by removing Robert as a co-trustee and naming Joseph and Monty as co-trustees. The Trust was signed by Dorothy as grantor and by Joseph and Monty as co-trustees. That same day, Dorothy also executed change of beneficiary forms for various life insurance policies, excluding Robert as a beneficiary. Additionally, Dorothy also amended her will, naming Joseph and Monty as co-personal representatives.

Eleven days after she amended the Trust, on August 9, 2010, Dorothy died. On September 16, 2010, Robert filed a Petition to Docket Trust and to Determine Beneficiaries. In his petition, Robert alleged that Dorothy lacked testamentary capacity and was under the undue influence of Joseph at the time she executed the amendments. Robert requested a hearing “to determine the validity of the execution of the amendments to the [Trust]; the powers of attorney, wills and any and all other estate planning documents[.]” (App. II).

On September 21, 2010, Robert filed a motion for a temporary restraining order, requesting that Joseph and Monty be enjoined from disposing of the proceeds from two life insurance annuities — one in the amount of $100,000.00 and the other for $38,000.00 — “due to the fact that the beneficiaries were changed less than ten days prior to [Dorothy’s] death[.]” (App. 29). In the motion, Robert contends that he and Sheila will suffer irreparable injury if an injunction is not issued.

Thereafter, the parties entered into a stipulated preliminary injunction and order, agreeing that the proceeds from the life insurance annuities — of which Joseph, Monty, and John were beneficiaries— would not be distributed. They also agreed that all parties were enjoined from disposing of any of Dorothy’s assets or proceeds from the Trust.

On November 22, 2011, Joseph and Monty filed a motion for summary judgment, alleging that there were no issues of material fact regarding whether Dorothy was of unsound mind. Neither Joseph and nor Monty executed an affidavit to include in their designated evidence; instead, they relied on a deposition of Attorney Blaney. They also argued that there was no issue of material fact regarding undue influence, relying simply on their argument that Dorothy was of sound mind.

Thereafter, John retained an attorney and joined with Robert and Sheila in responding to Joseph and Monty’s motion for summary judgment. In their summary judgment response, they argued that there were genuine issues of fact that precluded summary judgment. They submitted designated evidence, including various affidavits to show that there was an issue of fact regarding Dorothy’s testamentary capacity, especially in light of the medications that she was taking around the time that she amended the Trust, and an issue of fact regarding undue influence.

On March 22, 2012, the trial court held a summary judgment hearing. During the hearing, John’s attorney and Robert and Sheila’s attorney argued that summary judgment was not appropriate because there were genuine issues of material fact regarding testamentary capacity and undue influence. At the end of the hearing, the trial court took the summary judgment matter under advisement.

On June 4, 2012, the trial court issued an order granting Joseph and Monty’s motion for summary judgment. The trial court’s order provided that “[tjhere are no material issues of fact herein as to either the capacity of or any undue influence over Dorothy Rhoades on the date and time of the execution of her estate planning documents” and that “[t]he Trustees [Joseph and Monty] are entitled to judgment as a matter of law.” (App. 8). Robert now appeals.

After the notice of appeal was filed in this case, some procedural motions were filed and corresponding orders issued. For example, following Joseph and Monty’s filing of a motion to remove the Trust from the docket, the trial court held a hearing and then issued an order removing the Trust from the docket and closing the court’s file.

Additionally, prior to filing an appellate brief, Robert filed with this Court a motion to stay the proceedings and to enforce the trial court’s orders enjoining Joseph and Monty from disposing of assets pending this appeal. This Court’s motions panel granted Robert and Sheila’s stay motion and, pursuant to Indiana Appellate Rule 18, set an appeal bond in the amount of $25,000.00.

Finally, after briefing was completed, Joseph and Monty filed a motion to dismiss this appeal and to vacate the stay because Robert had not paid the appeal bond. This Court’s motions panel denied Joseph and Monty’s motion. We now address the issues in this appeal.

DECISION

1. Jurisdiction

Before turning to the issue of whether summary judgment was appropriately granted, we address Joseph and Monty’s cross-appeal argument that our Court lacks jurisdiction based on their allegation that the trial court’s summary judgment order was not a final judgment. Specifically, they contend that the trial court’s order granting summary judgment was not a final order because the trial court did not close the trust case and remove the case from the trust docket when it granted summary judgment.

On the other hand, Robert and Sheila contend that the trial court’s order granting summary judgment to Joseph and Monty was a final judgment because it completely disposed of Robert’s petition to docket the Trust and challenge thereto.

This Court has jurisdiction in all appeals from final judgments. Ind. Appellate Rule 5(A). A “final judgment” is one which “disposes of all claims as to all parties[.]” App. R. 2(H)(1). See also Bueter v. Brinkman, 776 N.E.2d 910, 912-13 (Ind.Ct.App.2002) (explaining that a final judgment is one that “disposes of all issues as to all parties, to the full extent of the court to dispose of the same, and puts an end to the particular case as to all of such parties and all of such issues” and “reserves no further question or direction for future determination” (citations and internal quotations omitted)). For an order to be a final judgment under Appellate Rule 2(H)(1), the order “must dispose of all issues as to all parties, ending the particular case and leaving nothing for future determination.” Ramsey v. Moore, 959 N.E.2d 246, 251 (Ind.2012) (citing Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind.2003), reh’g denied).

To support their argument that trial court’s summary judgment order was not a final judgment, Joseph and Monty rely on In re Estate of Botkins, 970 N.E.2d 164 (Ind.Ct.App.2012). In the Botkins case, one of the parties filed a motion to set aside a settlement agreement in an estate case that had already been opened. Id. at 165-66. The trial court denied the motion and then certified its order for interlocutory appeal. Id. Our Court, however, denied the party’s motion to accept jurisdiction over the interlocutory order. Id. Thereafter, the trial court entered an order “purporting” to make the interlocutory order “final and appealable.” Id.

When the party then returned to our Court to appeal the order, we explained that the trial court’s order was not a final judgment under Appellate Rule 2(H)(1) because it did not put an end to the estate case. Id. We discussed the fact that the estate case remained open and that “orders issued by a probate court are not final until the estate is closed.” Id. at 167 (citing Dawson v. Estate of Ott, 796 N.E.2d 1190,1194 n. 2 (Ind.Ct.App.2003)).

Unlike Botkins, where the appealed order disposed of a motion within an already existing estate case but did not end the. case or leave nothing for further determination, here, the trial court’s order from this trust case was a final judgment. Robert commenced the underlying trust proceeding by filing a petition to docket the Trust and to determine beneficiaries. In his petition, Robert alleged that Dorothy had executed the July 2010 amendment to the Trust “under duress and the undue influence of Joseph” and that her “medical condition” rendered her “unaware and unable to determine the contents of said amendments at the time she executed [the] same.” (App. 11). Joseph and Monty filed a summary judgment motion, specifically arguing that there were no genuine issues of fact regarding testamentary capacity and undue influence. On June 4, 2012, the trial court issued an order granting summary judgment, determining that “[t]here were no material issues of fact herein as to either the capacity of or any undue influence over Dorothy Rhoades on the date and time of the execution of her estate planning documents” and that Joseph and Monty were “entitled to judgment as a matter of law.” (App. 8). Thereafter, on June 14, 2012, Joseph and Monty filed a motion to remove the Trust from the docket. The notice of appeal was then filed on June 27, 2012. After holding a hearing on Joseph and Monty’s motion, the trial court, on September 13, 2012, issued an order removing the Trust from the docket and closing the court’s file, noting that there were “no pending issues” in the case. (App. 382).

Robert is appealing the grant of summary judgment, which is a final judgment because it disposed of all claims as to all parties. See Ind. Appellate Rule 2(H)(1). See also In re Guardianship of Phillips, 926 N.E.2d 1103, 1106 (Ind.Ct.App.2010) (holding that the trial court’s judgment was a final judgment and explaining that it was “immaterial” that the guardianship case remained open where no other issues raised in the pleadings were at issue); Keck v. Walker, 922 N.E.2d 94, 99 (Ind.Ct.App.2010) (holding that trial court’s order was a final, appealable judgment where it had the effect of disposing of all issues as to all parties). The only issues raised in Robert’s petition to docket the Trust were disposed of by the trial court’s grant of summary judgment to Joseph and Monty, and it is immaterial that the trial court did not remove the trust case from the docket when it entered the summary judgment order. Because the trial court’s summary judgment order is a final judgment, we will proceed to our appellate review of the trial court’s order.

2. Summary Judgment

Robert argues that the trial court erred by granting Joseph and Monty’s motion for summary judgment on his claims that Dorothy lacked testamentary capacity and was under undue influence at the time she amended the Trust and other estate documents. We will review each issue in turn.

When reviewing a trial court’s order granting summary judgment, we apply the same standard as that used in the trial court. Kopczynski v. Barger, 887 N.E.2d 928, 930 (Ind.2008). Summary judgment is appropriate only where the designated evidence shows “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Ind. Trial Rule 56(C). “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth ..., or if the undisputed facts support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009) (internal citations omitted).

“[T]he party seeking summary judgment has the initial burden of proving the absence of a genuine issue of material fact as to an outcome-determinative issue. Only then must the non-movant come forward with contrary evidence demonstrating the existence of genuine factual issues that should be resolved at trial.” Kroger Co. v. Plonski, 930 N.E.2d 1, 9 (Ind.2010) (citing Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind.1994), reh’g denied). Indeed, when the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiffs cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiffs claim. Dible v. City of Lafayette, 713 N.E.2d 269, 272 (Ind.1999).

Summary judgment “should not be used as an abbreviated trial, even where the proof is difficult or where the court may believe that the non-moving party will not succeed at trial.” Hudson v. Davis, 797 N.E.2d 277, 287 (Ind.Ct.App.2003), reh’g denied, trans. denied. See also Carrell v. Ellingwood, 423 N.E.2d 630, 636 (Ind.Ct.App.1981) (explaining that even if a trial court believes that a party moving for summary judgment will prevail at trial or believes that the likelihood of the nonmov-ing party’s recovery is improbable, “such are no bases for summary judgment”). Instead, in determining whether summary judgment is appropriate, we construe all facts and reasonable inferences in favor of the nonmoving party. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind.2001). We must carefully review a decision on summary judgment to ensure a party is not improperly denied his day in court. Id. at 974.

A. Testamentary Capacity

Robert first argues that the trial court erred by granting summary judgment to Joseph and Monty on his claim that Dorothy lacked testamentary capacity at the time she amended the Trust.

“The capacity of a settlor that is required to ... amend ... a revocable trust is the same as the capacity of a testator that is required to make a will.” Ind.Code § 30-4-2-10(b). Every person is presumed to be of sound mind to execute a will. Gast v. Hall, 858 N.E.2d 154, 165 (Ind.Ct.App.2006) (citing Hays v. Harmon, 809 N.E.2d 460, 464 (Ind.Ct.App.2004), trans. denied), reh’g denied, trans. denied. To rebut this presumption, a party must show that the testator, at the time of executing his will, lacks the mental capacity to know: “(1) the extent and value of [her] property; (2) those who are the natural objects of [her] bounty; and (3) their deserts, with respect to their treatment of and conduct towards [her].” Id. It is the testator’s mental capacity or soundness of mind at the time she executes the document at issue that is controlling. Id. However, evidence of the testator’s mental condition before the date of execution is admissible as it relates to the testator’s mental state at the time she executed the document at issue. Id.

In moving for summary judgment on this issue, Joseph and Monty designated the following evidence: Robert’s initial petition challenging the Trust; the Trust and its two amendments; other documents (including the two powers of attorney executed in 2010 and the July 2010 will); and portions of Attorney Blaney’s deposition in which he generally concluded that Dorothy was of sound mind but also stated that he was unaware if Dorothy was taking any medications at the time she amended the Trust.

Robert contends that Attorney Blaney’s deposition is not enough to entitle Joseph and Monty to summary judgment and that “there are ample questions of fact as to Dorothy Rhoades[’s] testamentary capacity when she executed the amendments to her estate plan documents on July 29, 2010.” (Robert’s Br. at 17). Specifically, he contends that there is a genuine issue of material fact regarding Dorothy’s capacity given the side effects of the medications she was taking at the time she made the amendments and given the surrounding facts leading up to her amendments, including the cessation of her dialysis.

We agree that summary judgment was inappropriate in this case as Robert’s designated evidence establishes that there is a genuine issue of material fact in regard to Dorothy’s testamentary capacity. In his designated evidence, Robert included various affidavits regarding Dorothy’s capacity and medication use. Among those affidavits was an affidavit from John, who stated that Dorothy was taking Tramadol, Hydro-codone, Xanax, thyroid medication, and blood pressure medication and that he had seen Caretaker Ray give Dorothy morphine three or four times.

Robert also included an affidavit from a pharmacist, who explained the side effects of the medications that Dorothy was taking between July 12, 2010 and August 9, 2010. Attached to the pharmacist’s affidavit was a printout from Dorothy’s pharmacy showing that between July 20 and 26, 2010, Dorothy filled prescriptions for Hy-drocodone, Furosemide, Prochlorperazine, and Exforge. The pharmacist stated that “most of the medications” that Dorothy was taking “caused drowsiness, dizziness, lightheadedness and/or blurred vision.” (App. 309). The pharmacist also stated that the “side effects taken in combination with each other would lead one to believe that [Dorothy] was not in her right mind due to the amounts and variety of medications that she was on from July 12, 2010 through August 9, 2010.” (App. 309). Finally, the pharmacist opined that “it is more probable than not, within a reasonable degree of medical certainty that [Dorothy] was not coherent enough to make rational decisions as to her estate planning matters, due to the medications she was consuming.” (App. 310).

Additionally, Robert included an affidavit from Caretaker Lucas, who stated that she had known Dorothy for eleven years before her death. She also stated that she helped to care for Dorothy from March 18 to July 12, 2010, and that she was familiar with the medications that Dorothy was taking. Caretaker Lucas also stated that she visited with Dorothy two or three times per week from July 12 to July 31, 2010 and that “[d]uring those visits, [she] noticed that [Dorothy] was under the affects [sic] of her medication which resulted in her inability to fully comprehend what was fully happening to her.” (App. 314).

The state of Dorothy’s mind at the time she amended the Trust and other estate documents involves a fact-specific analysis that does not lend itself to summary judgment. Construing the facts and reasonable inferences in favor of Robert as the nonmoving party, we conclude that there is a genuine issue of material fact regarding whether Dorothy was of sound mind at the time she executed the amendments at issue. Accordingly, we conclude that the issue of testamentary capacity is a question of fact for a jury to determine and that the trial court erred by granting summary judgment on this issue. See, e.g., Gast, 858 N.E.2d at 165-66 (reversing trial court’s grant of summary judgment on issue of testamentary capacity); Estate of Verdi ex rel. Verdi v. Toland, 733 N.E.2d 25, 28 (Ind.Ct.App.2000) (reversing the trial court’s grant of summary judgment where there was an issue of material fact regarding soundness of mind), reh’g denied; Carrell, 423 N.E.2d at 635 (explaining that issues regarding a person’s state of mind are more appropriately a question of fact for a trier of fact).

B. Undue Influence

Robert also argues that the trial court erred by granting summary judgment to Joseph and Monty on his claim that Dorothy was under the undue influence of Joseph at the time she amended the Trust.

Undue influence is “ ‘the exercise of sufficient control over the person, the validity of whose act is brought into question, to destroy his free agency and constrain him to do what he would not have done if such control had not been exercised.’ ” Gast, 858 N.E.2d at 166 (quoting In re Estate of Wade, 768 N.E.2d 957, 962 (Ind.Ct.App.2002), trans. denied). Undue influence is an “intangible thing that only in the rarest instances is susceptible of what may be termed direct or positive proof.” Gast, 858 N.E.2d at 166. That difficulty is enhanced by the fact that one who seeks to use undue influence does so in privacy. Id. Accordingly, “undue influence may be proven by circumstantial evidence, and the only positive and direct proof required is of facts and circumstances from which undue influence reasonably may be inferred.” Id. The following circumstances tending to support an inference of undue influence may be properly considered by our Court: (1) the character of the beneficiary; (2) any interest or motive the beneficiary might have to unduly influence the testator; and (3) the facts and surrounding circumstances that might have given the beneficiary an opportunity to exercise such influence. Id. “Undue influence is essentially a question of fact that should rarely be disposed of via summary judgment.” Id.

Under Indiana law, a confidential relationship sufficient to support an undue influence claim may arise as either a matter of law (“confidential relationships as a matter of law”) or under the particular facts of a case (“confidential relationships in fact”). Carlson v. Warren, 878 N.E.2d 844, 851 & 851 n. 3 (Ind.Ct.App.2007). Among those confidential relationships as a matter of law are the relationships between a parent and child and between a principal and agent. Id.; see also Supervised Estate of Allender v. Allender, 833 N.E.2d 529, 533 (Ind.Ct.App.2005), reh’g denied, trans. denied. These relationships raise “a presumption of trust and confidence as to the subordinate party on the one side and a corresponding influence as to the dominant party on the other.” Allender, 833 N.E.2d at 533. The law will impose a presumption that a transaction was the result of undue influence where the plaintiffs evidence shows that: (a) there was such a relationship; and (b) the dominant party benefits from a questioned transaction. Id.; see also Carlson, 878 N.E.2d at 851. The burden then shifts to the dominant party to rebut the presumption by providing “ ‘clear and convincing evidence’ ” that the dominant party “ ‘acted in good faith, did not take advantage of [the] position of trust, and that the transaction was fair and equitable.’ ” Carlson, 878 N.E.2d at 851 (quoting In re Guardianship of Knepper, 856 N.E.2d 150, 154 (Ind.Ct.App.2006), clarified on reh’g, trans. denied); see also Allender, 833 N.E.2d at 533 (explaining that the presumption of undue influence may be rebutted if dominant party establishes “clear and unequivocal proof that the questioned transaction was made at arm’s length and thus valid”).

As explained above, as the party moving for summary judgment, Joseph and Monty had the burden of designating evidence showing that there were no genuine issues of material fact regarding whether Dorothy was under undue influence at the time she amended the Trust and other documents in July 2010. See Kroger, 930 N.E.2d at 9; Jarboe, 644 N.E.2d at 123. In an attempt to meet their burden to show the absence of a material fact on this issue, Joseph and Monty merely relied on their argument regarding testamentary capacity. In other words, they argued there was no undue influence because Dorothy was of sound mind.

Because we have determined that there is an issue of material fact regarding testamentary capacity, we conclude that summary judgment was also not appropriate on the issue of undue influence. Here, Robert filed this action challenging the July 2010 amendment to the Trust and alleging that Joseph had unduly influenced Dorothy to amend the Trust. The undisputed evidence shows that Joseph is a child of Dorothy and that he benefitted from the amendment of the Trust. Additionally, Joseph was an attorney-in-fact for Dorothy. Joseph and Monty have not met their initial burden on summary judgment and have not shown that there is an absence of an issue of material fact regarding undue influence. Indeed, the question remains as to whether Joseph was in a dominant position in the parent-child relationship such that a presumption of undue influence would be imposed. Accordingly, we reverse the trial court’s grant of summary judgment and remand for further proceedings. See, e.g., Gast, 858 N.E.2d at 166-67 (explaining that “[ujndue influence is essentially a question of fact that should rarely be disposed of via summary judgment” and reversing trial court’s grant of summary judgment on undue influence); Estate of Verdi, 733 N.E.2d at 29 (reversing the trial court’s grant of summary judgment where there was an issue of material fact regarding undue influence).

Reversed and remanded.

KIRSCH, J., and VAIDIK, J., concur.

      .Robert, alone, commenced the underlying action challenging the July 2010 amendment to the Trust. Later, Sheila, who was represented by the same attorney as Robert, joined Robert in various pleadings, including the summary judgment response. Sheila was removed as a beneficiary from the Trust in February 2010, and there has been no challenge to that amendment. While both Robert and Sheila are named in the notice of appeal, we will collectively refer to them as “Robert" when discussing arguments made in this appeal.
      Additionally, John appeared in the case below, joined in Robert and Sheila’s summary judgment response, and participated in the summary judgment hearing, arguing that the trial court should deny Joseph and Monty’s motion for summary judgment. John, however, did not join in Robert and Sheila’s notice of appeal and has not filed an appearance or a brief with this Court. Nevertheless, John is a party to this appeal. See Ind. Appellate Rule 17(A) (explaining that "[a] party of record in the trial court ... shall be a party on appeal.”)

      . Dorothy did not name her son by marriage, Kenneth Rhoades ("Kenneth”), as a beneficiary of the Trust and included a provision explaining that failure to provide a distribution to Kenneth was "intentional.” (App. 18).

      . Elmer had died on September 29, 2003.

      . There is no information in the record regarding whether Dorothy's will was ever probated.

      . Robert’s motion indicates that it has an Exhibit A attached to it, but that exhibit is not included in Appellant’s Appendix.

      . During the hearing, the trial court also heard argument regarding Robert's show cause petition, which alleged that Joseph and Monty had violated the trial court’s injunctive order. At the end of the hearing, the trial court denied Robert’s show cause petition.

      . We ultimately dismissed the Botkins appeal because the trial court's order did not use the "magic language” of Trial Rule 54(B).

      . In a parent-child relationship, the parent is generally the dominant party, but a child may be determined to be the dominant party by virtue of being a caretaker for the parent. See, e.g., See Allender, 833 N.E.2d at 533-34. However, ''[t]he question of which party has attained the position of the dominant party, under the evidence, is a question for the trier of fact.” Barwill v. Cornelia H. Barkwill Revocable Trust, 902 N.E.2d 836, 839-40 (Ind.Ct.App.2009), trans. denied.


author: SHARPNACK, Senior Judge.

text:
    EVANSVILLE COURIER & PRESS and Rita Ward, Appellants-Plaintiffs, v. VANDERBURGH COUNTY HEALTH DEPARTMENT, Appellee-Defendant.
    No. 82A04-1302-PL-57.
    Court of Appeals of Indiana.
    Aug. 30, 2013.
    Patrick A. Shoulders, Jean M. Blanton, Ziemer, Stayman, Weitzel & Shoulders, LLP, Evansville, IN, Attorneys for Appellants.
    Steven M. Badger, Leah N. Wilson, Be-nesch Friedlander Coplan & Aronoff, LLP, Indianapolis, IN, Attorneys for Amicus Curiae Hoosier State Press Association Foundation.
    Joseph H. Harrison, Jr., Massey Law Offices, LLC, Evansville, IN, Attorney for Appellee.
   OPINION

SHARPNACK, Senior Judge.

STATEMENT OF THE CASE

The Evansville Courier & Press and Rita Ward asked the Vanderburgh County Health Department to give them access to death certificates. When their requests were denied, they alleged a violation of the Access to Public Records Act (“APRA”) and sought a trial court order compelling the Health Department to give them access. The court denied relief. Because our statutes indicate death certificates are public records that may be disclosed only in certain circumstances not present here, we affirm.

ISSUE

The sole issue in this appeal is whether the trial court erred in determining that the Health Department did not violate the APRA in denying the death certificate requests.

FACTS AND PROCEDURAL HISTORY

The facts are not in dispute. In June 2012, Ward submitted a written request to the Health Department for access to its May 2012 death certificates. The Health Department denied the request.

Ward then filed a formal complaint with the Public Access Counselor. The Public Access Counselor issued an advisory opinion that the Health Department’s denial did not violate the APRA. However, in an amended advisory opinion, the Public Access Counselor concluded that the denial was improper.

In July 2012, the day after the amended advisory opinion was issued, the Courier & Press submitted a written request to the Health Department for access to all of its death certificates since the beginning of May 2012. The Health Department denied the request.

The Courier & Press and Ward subsequently filed a complaint against the Health Department in the Vanderburgh Circuit Court alleging an APRA violation and seeking an order compelling access to the death certificates. The plaintiffs moved for summary judgment, and the parties submitted briefs and designations. After a hearing, the court denied the motion and entered judgment in the Health Department’s favor. The Courier & Press and Ward now appeal.

DISCUSSION AND DECISION

When reviewing a summary judgment ruling, our standard of review is the same as that of the trial court: summary judgment is appropriate only where there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Haegert v. Univ. of Evansville, 977 N.E.2d 924, 936-37 (Ind.2012).

This case involves statutory interpretation. The interpretation of a statute is a question of law, which we review de novo. State v. Int’l Bus. Machs. Corp., 964 N.E.2d 206, 209 (Ind.2012). Our goal in such a task is to determine and give effect to the intent of the legislature. Id.

The public policy underlying the APRA is “that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.” Ind.Code § 5-14-3-1 (1995). Accordingly, the APRA generally requires a public agency to disclose its public records upon the request of any person. Shepherd Props. Co. v. Int’l Union of Painters & Allied Trades, Dist. Council 91, 972 N.E.2d 845, 848 (Ind.2012); see Ind.Code § 5-14-3-3(a), (b) (2012).

Certain public records, though, may not be disclosed by a public agency unless access to the records is specifically required by a state or federal statute or is ordered by a court under the rules of discovery. Ind.Code § 5-14-3-4(a) (2012). Public records “declared confidential by state statute” are among those generally excepted from the APRA’s disclosure requirement. Ind.Code § 5-14-3-4(a)(l). The burden of proof for the nondisclosure of a public record is on the public agency denying access to the record. Ind.Code § 5-14-3-1.

In the death certificate requests here, the Courier & Press and Ward asked the Health Department for copies of records “created under IC[ ] 16 — 37—3—3.” Appellants’ App. pp. 20, 28. Indiana Code section 16-37-3-3 (2012) requires a “certificate of death” to be filed with the local health officer of the jurisdiction in which the death occurred.

The parties agree that death certificates are public records as that term is defined in the APRA. See Ind.Code § 5-14-3-2(n) (2008). However, they disagree about whether Indiana Code section 16-37-1-8 (2009) prohibits the Health Department from providing death certificates to the Courier & Press and Ward.

Section 16-37-1-8 states in relevant part:

(a) ... [A] local health officer shall provide a certification of ... death ... registration upon request by any person only if:
(1) the health officer is satisfied that the applicant has a direct interest in the matter; [and]
(2) the health officer determines that the certificate is necessary for the determination of personal or property rights or for compliance with state or federal law....
(d) Upon determination that a person may be provided a certification of death under subsection (a), the local health officer shall provide to the person a certification of death that excludes information concerning the cause of death if the person requests the exclusion of this information.

Pursuant to subsection (a), then, a local health officer is required to provide a death certificate “only if’ the applicant meets the two specified requirements. The “only if’ language is a clear indication that a local health officer may not disclose a death certificate in any other circumstances.

The Courier <& Press and Ward nonetheless argue that the “certification of ... death ... registration” in Section 16-37-1-8 is different from the “certificate of death” in Section 16-37-3-3. Thus, their argument goes, Section 16-37-1-8 does not prohibit the disclosure of death certificates.

This argument fails for the plain fact that Section 16-37-1-8’s own language shows the legislature used the terms interchangeably. That is, while subsection (a) provides when a local health officer must disclose a “certification of ... death ... registration,” subsection (d) refers to that same document as a “certification of death.”

As neither the Courier & Press nor Ward showed they had a direct interest in the death certificates or that the death certificates were necessary for the determination of personal or property rights or for compliance with state or federal law, the Health Department properly denied their requests.

This conclusion is entirely in line with the legislature’s intent as shown through another statute regarding the limits on disclosure of vital statistics records. Parallel to Section 16-37-1-8, Indiana Code section 16-37-l-10(a)(l) (1999) provides that the state registrar must

permit inspection of the records [of the division of the state department concerning vital statistics] or issue a certified copy of a certificate or part of a certificate only if the state registrar is satisfied of the following:
(A) That the applicant has a direct interest in the matter recorded.
(B) That the information is necessary for the determination of personal or property rights or for compliance with state or federal law.

Thus, an applicant for a death certificate must meet the same requirements regardless of whether that person requests access from a local health officer or the state registrar. Indeed, the outcome urged by the Courier & Press and Ward leads to a curious result: a death certificate request with no showing of direct interest or necessity made to the state registrar would be denied while that same request would be granted by a local health officer. Surely the legislature did not intend such an end run around Section 16-37-1-10.

Notwithstanding Section 16-37-1-8’s limits on a local health officer’s ability to disclose death certificates, we note that a local health officer must make some information from death certificates available to the public. Specifically, Indiana Code section 16-37-3-9 (2005) requires a local health officer to create a permanent record of certain items from death certificates, and that record must be open to public inspection:

(a) The local health officer shall, from the stillbirth and death certificates, make a permanent record of the:
(1) name;
(2) sex;
(3) age;
(4) place of death;
(5) residence; and
(6) for a death certificate only:
(A) residence addresses of the deceased during the two (2) years before the death; and
(B) Social Security number;
of the deceased.
(b) The records shall be open to public inspection. Except as provided in this subsection, the Social Security number is confidential and may not be disclosed to the public.
(d) The local health officer may make records of other data in connection with deaths for statistical purposes or for the purpose of planning health programs. Records under this subsection are not public records.

Still, it is evident from the appellate briefs of the Courier & Press and Ward as well as amicus curiae Hoosier State Press Association Foundation that what is being sought in this lawsuit is access to cause of death information. Cause of death is not enumerated under subsection (a) as a category of information to be notated in the permanent record. Moreover, although subsection (d) allows a local health officer to record other data in connection with deaths, those records are not public records.

We acknowledge the interest in using cause of death information to identify public health risks perhaps otherwise overlooked by public agencies. Nonetheless, we are not at liberty to ignore the legislature’s intent as demonstrated through its statutes.

A local health officer need only provide a death certificate to an applicant fulfilling the direct interest and necessity requirements of Section 16-37-1-8. As neither the Courier & Press nor Ward provided any information to make such a showing, the Health Department properly denied their requests. We therefore conclude the trial court did not err in denying the plaintiffs’ summary judgment motion and entering judgment in favor of the Health Department.

CONCLUSION

We therefore affirm the trial court.

BRADFORD, J., and PYLE, J., concur.

      . We cite the version of the statute applicable to the Courier & Press’s public records request and further note the version applicable to Ward’s request is the same in all relevant respects.

      . We cite the version of the statute applicable to the Courier & Press's public records • request and further note the version applicable to Ward’s request is the same in all relevant respects.

      . The differences between this version of the statute, applicable to the filing of death certificates as of July 1, 2012, and the previous version, applicable to the filing of May and June 2012 death certificates, are not relevant here.

      . In Evansville-Vanderburgh County Department of Health v. Evansville Printing Corp., 165 Ind.App. 437, 332 N.E.2d 829 (1975), another panel of this Court examined the versions of the statutes then in effect and determined that certificates of death were different from certificates of death registration. To the extent that 1975 case, not cited by either of the parties or amicus curiae, supports a similar conclusion here, we respectfully disagree.


author: BARNES, Judge.

text:
    Joshua GOMILLIA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1301-CR-77.
    Court of Appeals of Indiana.
    Aug. 30, 2013.

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

BARNES, Judge.

Case Summary

Joshua Gomillia appeals his forty-five-year sentence for Class A felony criminal deviate conduct and Class B felony robbery. We affirm.

Issue

Gomillia raises one issue, which we restate as whether the trial court abused its discretion when it sentenced him.

Facts

Late on June 22, 2011, and into the morning of June 23, 2011, Gomillia was with his friends Labronze Myles and Wendell Carter. Gomillia had smoked marijuana, drank alcohol, and taken several Xanax pills. Carter was gambling and lost a substantial amount of money. The three men decided to commit a robbery and drove to a residence in Indianapolis that Gomillia randomly selected. At approximately 6:20 a.m. on June 23, 2011, Gomil-lia, armed with a gun, rang the doorbell and entered E.K’s home with Carter when E.K. answered the door. Both Gomillia’s and Carter’s faces were covered. Once inside E.K.’s home, Gomillia held a gun to E.K.’s head and forced her to perform oral sex on him and threatened to rape her. E.K. was also forced to perform oral sex on Carter. After the assault, Gomillia, Carter, and Myles stole E.K’s car, ATM card, television, laptop, and other items.

On June 28, 2011, the State charged the men with two counts of Class A felony criminal deviate conduct, one count of Class B felony robbery, one count of Class B felony burglary, one count of Class B felony criminal confinement, and one count of Class D felony auto theft. Gomillia agreed to plead guilty to one count of Class A felony criminal deviate conduct and Class B felony robbery. In exchange for his guilty plea, the State agreed to dismiss the remaining charges. The plea agreement required Gomillia to cooperate with the State in the prosecution of Carter and Myles and capped Gomillia’s executed sentence at forty years.

In issuing its sentence, the trial court stated:

This is indeed a tragedy. It is a tragedy for [E.K.], Number one, but as I have previously stated in one of the other cases, what I have read that [E.K.] has submitted to the Court and what I remember of [E.K.] when she took the stand during the bench trial of one of the three defendants, she is an extremely strong person. She is determined. She is a gentle lady. She is a sincere wonderful friend to those who know her and who have stuck by her, and who have come to court for her. That doesn’t happen in too many cases that I have handled over the years and it speaks very loudly of the type of person that [E.K.] is.

Tr. p. 54. The trial court went on to discuss the impact of home invasions when victims are not home, how Gomillia gained entry to E.K.’s home, and the impact of the crime on E.K. and stated:

And at your lead, not only was she victimized by the break-in, but you put a gun to her head and demanded that she suck your penis. I don’t care what drugs you were on and what you did previously that evening. The choices you made that evening, Mr. Gomillia, were your choices. And what you did to
[E.K.] was an insult to these beautiful ladies: your mother, your aunt, who came in to court and all the other ladies who are related to you and who are your friends. In violating [E.K.], you violated them, as well. And it is a tragedy for you and for your family because you have done good things growing up and you have been successful ..., I am sure you were the son that your mother and father raised and that you have re-become that person since your assault on [E.K.], and I am happy about that. But regardless of what you have re-become, that doesn’t erase what you did on the 23rd of June. You have re-become the man that you were before the 23rd. [E.K.] is no longer the lady that she was on the 22nd, and she will never be that lady again. And thank God she is strong, she is intelligent, she is tender, she is gentle, and she has a wonderful support system, although her family is not in this town. She has that support system because of the person that she is. You have that support system because of the man that you were before the 23rd and what you are now trying to re-become. ...

Id. at 57-58.

As mitigating, the trial court found that Gomillia had accepted responsibility, was genuinely remorseful, had no prior convictions, had cooperated with the prosecution, and was likely to respond affirmatively to rehabilitation. As aggravating, the trial court considered that Gomillia “led the whole thing” and that:

two strong, young, men force their way into this lady’s home with a third colleague out in the car who gets worried about the sun coming up and you had better get out of there. The threats to this lady, the terror that you inspired in her, the whole circumstance of this crime....

Id. at 61. The trial court concluded that the aggravators outweighed the mitigators. For the Class A felony criminal deviate conduct, the trial court sentenced Gomillia to forty-five years, with forty years executed and five years on work release and three years of probation. For the Class B felony robbery, the trial court sentenced Gomillia to ten years. The trial court ordered the sentences to be served concurrently. Gomillia now appeals.

Analysis

Gomillia argues the trial court abused its discretion when it sentenced him. We evaluate a sentence under the current “advisory” sentencing scheme pursuant to Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.2007), clarified on reh’g by Anglemyer v. State, 875 N.E.2d 218 (Ind.2007). The trial court must issue a sentencing statement that includes “reasonably detailed reasons or circumstances for imposing a particular sentence.” Anglemyer, 868 N.E.2d at 491. The reasons or omission of reasons given for choosing a sentence are reviewable on appeal for an abuse of discretion. Id. “The relative weight or value assignable to reasons properly found or those which should have been found is not subject to review for abuse.” Id.

Gomillia claims that the trial court improperly considered facts outside the record when it considered its impression of E.K. during her testimony in a co-defendant’s trial and the people who came to court on her behalf. As an initial matter, the State argues this issue is waived because Gomillia failed to object to this line of reasoning at the sentencing hearing. Gomillia responds by asserting that an improper sentence constitutes fundamental error and cannot be ignored on appeal. See Groves v. State, 823 N.E.2d 1229, 1232 (Ind.Ct.App.2005). Assuming this purported error is reviewable, we are not persuaded that the trial court abused its discretion when it referenced E.K’s strength and support system.

Gomillia’s argument is based on Angle-myer, where our supreme court explained that, to review a trial court’s exercise of discretion in sentencing, we must be told of the reasons for imposing the sentence ‘“a statement of facts, in some detail, which are peculiar to the particular defendant and the crime, as opposed to general impressions or conclusions. Of course such facts must have support in the record.’” Anglemyer, 868 N.E.2d at 490 (quoting Page v. State, 424 N.E.2d 1021, 1028 (Ind.1981)). First, E.K. and several of her friends submitted letters to the trial court detailing the impact of the crime on E.K. and the steps she had taken to overcome the fear she experienced after the crime. Thus, the record generally supports the trial court’s assessment of E.K. and her support system.

Further, even if the trial court’s assessment of E.K. was based in part on its observation during a co-defendant’s trial, there is no indication that this factor was a basis for imposing a particular sentence, let alone that the trial court considered it as an aggravator to support a more severe sentence. Instead, the trial court was simply making a statement about the resilience of the victim prior to its assessment of the aggravators and mitigators. Any error in the trial court’s consideration of E.K’s testimony at a co-defendant’s trial was harmless because it did not impact the trial court’s determination of Gomillia’s sentence.

Gomillia also argues that the trial court abused its discretion by considering the material elements of the offenses as aggra-vators. According to Gomillia, when considering the whole circumstances of the crime, the trial court was primarily focused on the threats made to and the fear suffered by E.K. Although the State agrees with the proposition that a trial court may not consider a material element of an offense as an aggravator, this is no longer an accurate assessment of the law. The cases upon which the parties rely for this proposition were based on the application of the previous sentencing scheme.

In Pedraza v. State, 887 N.E.2d 77, 80 (Ind.2008), our supreme court observed that “sentencing used to be a two-step process — imposing of the presumptive sentence, then deciding whether any aggrava-tors or mitigators warranted deviation.” Since the 2005 modification of the sentencing scheme, however, sentencing “consists of only one discretionary determination.” Id. “Thus, a sentence toward the high end of the range is no longer an ‘enhanced sentence’ in the sense that the former regime provided.” Id. According to Pe-draza, based on the 2005 changes, the consideration of a material element of crime as an aggravator “is no longer an inappropriate double enhancement.” Id. Thus, to the extent the trial court considered an element of the offense as an ag-gravator, it is no longer an improper double enhancement under the new sentencing scheme.

Regardless, the seriousness of the offense, “which implicitly includes the nature and circumstances of the crime as well as the manner in which the crime is committed, has long been held a valid aggravating factor.” Anglemyer, 868 N.E.2d at 492. In its consideration of the circumstances of the offense as an aggravator, the trial court observed that “two strong, young, men” forced their way into her home and terrorized E.K. Tr. p. 61. It is clear from the totality of the sentencing statement that the trial court was focused on the intrusion into the sanctity of E.K’s home. The trial court discussed at length the impact of a home invasion on victims generally and on E.K. in particular. Although the burglary charge was dismissed, the trial court properly considered the circumstances of the offense as an aggravator. See Bethea v. State, 988 N.E.2d 1134, 1145 (Ind.2013) (holding that, where a plea agreement lacks language prohibiting the trial court from considering dismissed enhancements or the original charges from which a lesser plea is taken, “it is not necessary for a trial court to turn a blind eye to the facts of the incident that brought the defendant before them.”). The record also establishes that Gomillia terrorized E.K. because, after Gomillia held a gun to her head and forced her to perform oral sex, he threatened to rape her. Gomillia has not established that the trial court abused its discretion in considering the “whole circumstance of this crime” or his lead role in it as aggravators. Tr. p. 61.

Conclusion

Gomillia has not shown that the trial court abused its discretion in sentencing him. We affirm.

Affirmed.

CRONE, J., and PYLE, J., concur.

      . The written plea agreement references Count I, the count of criminal deviate conduct relating to Carter. At the guilty plea hearing, the prosecutor referenced the error and the abstract of judgment correctly references Count II, the count of criminal deviate conduct relating to Gomillia.

      . Gomillia does not explain how his leadership role in the commission of the crimes was an element of either offense.

      . Although Gomillia relies on McElroy v. State, 865 N.E.2d 584, 590 (Ind.2007), which was decided after the 2005 amendment to the sentencing statutes, McElroy committed the offenses in 2003, and there is no indication that he was sentenced pursuant to the 2005 amendments.