author: MATHIAS, Judge.

text:
    Bart WHITESITT, Appellant-Plaintiff, v. TOWN OF KNIGHTSTOWN, Appellee-Defendant.
    No. 33A04-1302-MI-00072
    Court of Appeals of Indiana.
    Nov. 18, 2013.

      Anthony J. Saunders, New Castle, IN, Attorney for Appellant.
    Kirk A. Horn, Mandel Horn, P.C., Car-mel, IN, Attorney for Appellee.
   OPINION

MATHIAS, Judge.

Bart Whitesitt ("Whitesitt") appeals the Henry Cireuit Court's order entering summary judgment in favor of the Town of Knightstown ("the Town") in which the trial court determined that the Town did not violate Indiana Code section 83-35-1-1 when it abolished the Knightstown Town Court ("the Town Court"). As we reach the same conclusion, we affirm.

Facts and Procedural History

The Town established the Town Court in 1970 by Ordinance Number 5-6-1970. The court's jurisdiction was limited to adjudication of traffic infractions and misdemeanors. . Whitesitt became the Town Court Judge on January 31, 2011, after the prior judge resigned. Whitesitt was appointed to complete the prior judge's four-year term, which ended on December 31, 2011.

Also in January 2011, the Henry County Prosecutor notified the Town that it would no longer refer misdemeanor offenses to the Town Court. Due to the resulting revenue shortfall from the lack of court costs and fines, on July 21, 2011, the Town passed Ordinance 7-2011 abolishing the Town Court. '

On September 6, 2011, Whitesitt filed a complaint for declaratory judgment and alleged that the Town violated Indiana Code section 33-35-1-1 when it abolished the Town Court. Whitesitt and the Town filed cross motions for summary judgment, and a hearing was held on January 28, 2013. The next day, the trial court issued an order granting the Town's motion for summary judgment and denying Whites-itt's motion. Whitesitt now appeals. |

Standard of Review

Whitesitt argues that the trial court erred when it granted the Town's motion for summary judgment. Our standard of review of summary judgment appeals is well established:

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

Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind.2009) (citations omitted). The party appealing a summary judgment decision has the burden of persuading this court that the grant or denial of summary judgment was erroneous. Knoebel v. Clark County Superior Court No. 1, 901 N.E.2d 529, 531-32 (Ind.Ct.App.2009). Where the facts are undisputed and the issue presented is a pure question of law, we review the matter de novo. Crum v. City of Terre Haute ex rel. Dep't of Redev., 812 N.E.2d 164, 166 (Ind.Ct.App.2004). Finally, our standard of review is not altered by the fact that the parties filed cross-motions for summary judgment. Ind. Farmers Mut. Ins. Grp. v. Blaskie, 727 N.E.2d 13, 15 (Ind.Ct.App.2000).

Discussion and Decision

Our resolution of the issue presented in this appeal hinges on our application of Indiana Code section 33-35-1-1. Therefore, we initially observe that statutory interpretation is a question of law reserved for the court and is reviewed de novo. Ind. Pesticide Rev. Bd. v. Black Diamond Pest & Termite Control Inc., 916 N.E.2d 168, 181 (Ind.Ct.App.2009) (quotation omitted), trans. denied. De novo review allows us to decide an issue without affording any deference to the trial court's decision. Id. Our goal in statutory construction is to determine, give effect to, and implement the intent of the legislature. Id. When a statute has not previously been construed, our interpretation is controlled by the express language of the statute and the rules of statutory construction. Id. We review the statute as a whole and presume the legislature intended logical application of the language used in the statute, so as to avoid unjust or absurd results. See Curley v. Lake County Bd. of Elections & Registration, 896 N.E.2d 24, 34 (Ind.Ct.App.2008) (quotation omitted), trans. denied.

Whitesitt argues that when it abolished the Town Court, the Town violated Indiana Code section 33-35-1-1, which provides in pertinent part:

(a) During 2006 and every fourth year after that, a second or third class city or a town may by ordinance establish or abolish a city or town court. An ordinance to establish a city or town court must be adopted not less than one (1) year before the judge's term would begin under section 3 of this chapter.
(b) The judge for a court established under subsection (a) shall be elected under IC 3-10-6 or IC 3-10-7 at the municipal election in November 2007 and every four (4) years thereafter.
(e) A court established under subsection (a) comes into existence on January 1 of the year following the year in which a judge is elected to serve in that court.
(d) A city or town court in existence on January 1, 1986, may continue in operation until it is abolished by ordinance.

(Emphasis added).

Whitesitt argues that 2006, 2010, and every fourth year thereafter are the only years that the Town could legally abolish the Town Court, pursuant to subsection (a) of the statute; therefore, the Town violated the statute when it passed Ordinance Number 7-2011 on July 21, 2011, abolishing the Town Court. Further, he contends that the "purpose" of subsection (d) "is to provide for the continued existence of a Town Court organized under previous versions" of this statute and "not to force every town that had a town court prior to 2006 ... to re-create that Court every time the statute was amended{.]" Appellant's Br. at 7-8.

In response, the Town argued, and the trial court agreed, that pursuant to subsection (d) of the statute, a city or town court established prior to January 1, 1986, is exempt from the restriction contained in subsection (a). Because the Town Court was established well before January 1, 1986, the trial court concluded that the Town did not violate section 83-35-1-1 when it abolished the Town Court in 2011.

The original version of the statute was codified at Indiana Code section 33-10.1-1-3, and the substance of the statute was nearly identical to the current version, but subsection (a) provided that a second or third class city or town could establish or abolish a city or town court during 1982 and every fourth year thereafter. Similarly, subsection (d) provided that a city or town court in existence on January 1, 1982, could continue in operation until abolished by ordinance. The statute was amended in 1986 to substitute the year 1982 to 1986 in subsection (a) and to change the date in subsection (d) to January 1, 1986. The statute was recodified in Indiana Code seetion 33-35-1-1 in 2004, but the substance of the statute remained the same. In 2006, the statute was amended to its present version, which substituted the year 2006 for 1986 in subsection (a), but subsection (d) was not changed.

The history of the statute and the plain language of subsection (d) lead us to conclude that city and town courts that existed prior to January 1, 1986, can be abolished by ordinance at any time. Subsection (d) unambiguously provides that city or town courts in existence on January 1, 1986, will continue to operate until abolished by ordinance. Unlike subsections (b) and (c) of the statute, which expressly relate only to town courts established under subsection (a), subsection (d) does not contain any reference to subsection (a). The General Assembly's intent to treat courts established prior to January 1, 1986, differently from those established after that date is clear under the plain language of subsection (d) when it is considered within the entire context of the statute. To reach any other conclusion would render subsection (d) meaningless. We presume our General Assembly does not enact useless statutes or statutory provisions and intends to avoid unjust or absurd results. Hall Drive Ins, Inc. v. City of Fort Wayne, 773 N.E2d 255, 257 (Ind.2002). Statutes are to be applied in a logical manner consistent with public policy and convenience with each section being considered with reference to all other see-tions. Alberici Constructors, Inc. v. Ohio Farmers Ins. Co., 866 N.E.2d 740, 743 (Ind.2007).

Moreover, we observe that in State v. Monfort, 723 N.E.2d 407 (Ind.2000), our supreme court held that Article Seven, Section One of the Indiana Constitution confers upon the General Assembly the power to both create and to abolish courts unless the court's existence is constitutionally mandated. In Monfort, the legislature passed a bill in 1995 abolishing Jasper Superior Court No. 2, which was statutorily created as a court of general jurisdiction in 1990. Judge Monfort challenged the constitutionality of the law, and our supreme court concluded that while the legislature had the power to abolish the court, doing so in the middle of a judge's term violated the separation of powers provision of the Indiana Constitution. Id. at 412. "'A court of general jurisdiction, whether named in the Constitution or established in pursuance of the provisions of the Constitution, cannot be directed, controlled, or impeded in its functions by any of the other departments of the government.'" Id. (quoting Board of Commissioners v. Albright, 168 Ind. 564, 578, 81 N.E. 578, 582-83 (1907).

Whitesitt relies on Monfort only to argue that a legislative body cannot abolish a court "except by following the correct statutory procedure." Appellant's Br. at 8. Whitesitt relies on his own interpretation of Indiana Code section 33-35-1-1 to support his claim that the statute confers authority on the Town to abolish the Town Court only in "the years 2006, 2010, 2014 and every four years thereafter." Id.

Whitesitt's reliance on Monfort is misplaced because the cireumstances in Mon-fort are not analogous to those present in this case. The Town Court is one of inferior and limited jurisdiction and was created under the authority the General Assembly conferred upon the Town. Furthermore, in Monfort, our supreme court observed that "there is authority for the proposition that the separation of powers doctrine applies only to state governments and its officers, not municipal or local governments." Id. (citation omitted).

For all of these reasons, we conclude that Indiana Code section 33-35-1-1(d) provides that a town or city court created prior to January 1, 1986, may be abolished by ordinance at any time. Because the Town Court was in existence well before January 1, 1986, the Town's enactment of Ordinance 7-2011 abolishing the Town Court was statutorily authorized under Indiana Code section 838-85-1-1. We therefore affirm the judgment of the trial court.

Affirmed.

NAJAM, J., and BROWN, J., concur.

      . City and town courts "are of necessity courts of limited and inferior jurisdiction." See Gill v. State, 232 Ind. 36, 39, 111 N.E.2d 275, 276 (1953).

      . The Town Court was abolished effective October 31, 2011, two months before the end of Whitesitt's term. However, the Town voted to pay Whitesitt for those remaining two months of his term.


source: Caselaw Access Project

author: VAIDIK, Judge.

license: Public Domain

text:
    The CITY OF FORT WAYNE, Appellant/Petitioner, v. CONSOLIDATED ELECTRICAL DISTRIBUTORS, INC. d/b/a All-Phase Electric Supply Co., Appellee/Respondent.
    No. 02A04-1306-CC-283.
    Court of Appeals of Indiana.
    Nov. 20, 2013.
    Rehearing Denied Jan. 28, 2014.

      Timothy A. Manges, David E. Bailey, Fort Wayne, IN, Attorneys for Appellant.
    Lesa C. Duvall, Stephanie L. Bloomer, Kristin D. Caldwell, Duvall Bloomer & Caldwell, P.C., Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

This case arises from a light-installation project on Courthouse Green, a park owned by the city of Fort Wayne ("the City"). Consolidated Electrical Distributors, Inc., otherwise known as All-Phase Electrical Supply Co. ("All-Phase"), was a subcontractor on the project and supplied thousands of dollars' worth of materials. Though the City paid the general contractor, the general contractor never paid All-Phase.

All-Phase served notice of its unpaid subcontractor's claim on the mayor of Fort Wayne and filed suit against the City, seeking payment. Both parties moved for summary judgment. At issue was All-Phase's compliance with the notice requirements of Indiana Code section 36-1-12-12, which provides a right of recovery to an unpaid subcontractor. The City argued that All-Phase was not entitled to payment because notice was not given within sixty days of the date All-Phase last provided materials and served improperly on the mayor, rather than the parks department. The trial court disagreed and granted summary judgment for All-Phase.

When read in conjunction with relevant statutory provisions, we conclude that Seetion 36-1-12-12 allowed All-Phase to serve notice of its unpaid subcontractor's claim on the mayor of Fort Wayne. We also find that All-Phase provided timely notice of its claim. Finding that summary judgment was properly granted for All-Phase, we affirm.

Facts and Procedural History

In November 2010, the Courthouse Green project was awarded to a construction company called Lights & Signals, Inc. ("LSI"). The contract for the project was worth $85,990. All-Phase was a subcontractor on the project and supplied $24,050.71 worth of materials to LSI. Though the City paid LSI ninety-five percent of the contract price, LSI never paid All-Phase. LSI ultimately stopped doing business and declared bankruptcy.

In April 2011, All-Phase sent notice of LSI's nonpayment to the mayor of Fort Wayne, Thomas C. Henry. An attorney for the City responded to the notice and advised All-Phase that the City had paid LSI the full contract price, minus a small amount in retainage. The City declined to pay All-Phase any amounts owed.

All-Phase filed suit against the City and issued requests for admissions. In its response, the City made the following admission:

REQUEST NO. 4: Admit that during the period from on or about December 14, 2010, through February 7, 2011, ALL-PHASE supplied $24,050.71 worth of materials to LSI for construction of the Project on the City's Real Estate.
RESPONSE: Admit.

Appellant's App. p. 82 (emphasis added). The City also admitted that it received All-Phase's notice of claim on April 6, 2011. Id.

Both parties filed summary-judgment motions. At issue was All-Phase's compliance with the notice requirements of Indiana Code section 36-1-12-12, which provides a right of recovery to an unpaid subcontractor. All-Phase's designated evidence included the affidavit of its Credit Manager, Jay Orchard. In his affidavit, Orchard confirmed that All-Phase provided materials to LSI from December 14, 2010, through February 7, 2011. In paragraph 8 of his affidavit, he also confirmed that notice of All-Phase's claim was sent to the mayor on April 6, 2011, "which was 58 days after [All-Phase] supplied the last of the materials for the project." Id. at 60. The City moved to strike paragraph 8, but the trial court denied the City's motion.

After a hearing, the trial court granted summary judgment for All-Phase. The City now appeals.

Discussion and Decision

On appeal, the City contends that the trial court erred by granting summary judgment for All-Phase. The City argues that All-Phase improperly served notice of its claim on the mayor of Fort Wayne. The City also claims that All-Phase gave untimely notice of its claim.

Summary judgment is only appropriate when the moving party affirmatively shows that there are no genuine issues of material fact with regard to a particular issue or claim. See Ind. Trial Rule 56(C); Holiday Hospitality Franchising, Inc. v. AMCO Ins. Co., 983 N.E.2d 574, 577 (Ind.2013) (citing Town of Avon v. W. Cent. Conservancy Dist., 957 N.E.2d 598, 602 (Ind.2011)). The non-moving party then bears the burden of producing designated evidence showing the existence of a genuine issue of material fact. Holiday, 983 N.E.2d at 577.

"An appellate court reviews these cases through the same lens, and we view all designated evidence and reasonable inferences in a light most favorable to the non-moving party; any doubts are resolved against the moving party." Id. We will affirm a trial court's grant of summary judgment on any theory supported by the record. Id. (citing Woodruff v. Ind. Famity & Soc. Servs. Admin., 964 N.E.2d 784, 790 (Ind.2012)). When the facts are not disputed, reversal is only appropriate if the trial court incorrectly applied the law to those facts. Id.

I. Notice Properly Served

The City first claims that All-Phase improperly served notice of its claim on the mayor of Fort Wayne. All-Phase argues that the relevant statutory provisions allow it to serve notice on the mayor. All-Phase's argument is based on its reading of the provisions in Title 36 of the Indiana Code.

Indiana Code section 36-1-12-12 provides a right of recovery to an unpaid subcontractor. However, in order for a subcontractor to receive payment, the subcontractor "must file a claim with the board not later than sixty (60) days after that person performed the last labor, furnished the last material, or performed the last service...." Ind.Code § 36-1-12-12(b) {(emphasis added). According to the definitions section of the chapter, " 'board' means the board or officer of a political subdivision or an agency having the power to award contracts for public work." Ind. Code § 36-1-12-1.2(1) (emphasis added).

A "political subdivision" is a municipal corporation or special taxing district. Ind. Code § 86-1-2-13. Elsewhere in Title 36, Article 1, "municipal corporation" is defined as, among other things, a unit. Ind.Code § 36-1-2-10. "Unit," in turn, means a county, municipality, or township. Ind.Code § 36-1-2-23. Finally, a "municipality" is defined as a city or town. Ind. Code § 36-1-2-11.

Synthesizing Title 36's definitions of these terms, All-Phase contends that the City is a "municipality, which is a unit, which is a municipal corporation, which is a political subdivision." Appellee's Br. p. 12. And to follow All-Phase's logic, because notice must be served on the board, defined in Section 36-1-12-1.2(1) as an "officer of a political subdivision," All-Phase properly served the mayor, an officer of the political subdivision of Fort Wayne. |

In response, the City argues that the final phrase in Section 36-1-12-1.2(1)-"having the power to award contracts for public work," applies to all three entities named in the section: the board, officer of a political subdivision, and an agency. The City argues that the mayor did not have the power to award this public-works contract-only the park board did. But this interpretation conflicts with longstanding rules of statutory construction.

"To get at the thought or meaning expressed in a statute, a contract, or a constitution, the first resort, in all cases, is to the natural signification of the words, in the order of grammatical arrangement in which the framers of the instrument have placed them." FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d 1167, 1176 (Ind.Ct.App.2012), (citations omitted), reh'yg denied, trans. denied. "As a matter of strict grammatical construction, the descriptive words in a phrase should, in the absence of punctuation, be referred to their nearest antecedent, and had the intent been, by means of punctuation, to bring out a meaning which would refer these qualifying words to more than their immediate antecedent, a comma should have been inserted after said word." Id. (citation omitted). This is sometimes called the last-antecedent rule.

Section 36-1-12-1.2(1) reads: " 'Board means the board or officer of a political subdivision or an agency having the power to award contracts for public work." Applying the last-antecedent rule to the Section, it is clear that the phrase "having the power to award contracts for public work," modifies "an ageney," the phrase immediately preceding it. For this reason, the City's argument fails, and we conclude that All-Phase properly served notice of its claim on the mayor of Fort Wayne.

II. Notice Timely Served

The City also claims that All-Phase failed to give timely notice of its claim. The trial court concluded that as a result of the City's admission, it was undisputed that All-Phase provided materials through February 7, 2011, making All-Phase's notice timely. See Appellant's App. p. 12.

At issue is the following admission made by the City:

REQUEST NO. 4: Admit that during the period from on or about December 14, 2010, through February 7, 2011, ALL-PHASE supplied $24,050.71 worth of materials to LSI for construction of the Project on the City's Real Estate.
RESPONSE: Admit.

Id. at 82 (emphasis added). The City also admitted that it received All-Phase's notice of claim on April 6, 2011. Id.

The City now claims that the trial court erred by concluding, based on the City's admission, that All-Phase provided materials through the last date in the provided range, February 7, 2011, making All-Phase's notice timely under the sixty-day window for unpaid subcontractor's claims. The City argues that its admission only "establishes that All-Phase provided materials at some point within the time period .... All-Phase did not ask the City to admit, and the City did not admit, that All-Phase provided materials on February 7." Appellant's Br. p. 14. We agree that the admission establishes that All-Phase provided materials at some point or points during the date range, not throughout. But the City plainly admitted that All-Phase provided materials during the period from on or about December 14, 2010, through February 7, 2011. The City is bound by its admission; it may not now exclude February 7, 2011, from that range.

The City also argues that the trial court should have stricken paragraph 8 of Jay Orchard's affidavit. In his affidavit, Orchard confirmed that All-Phase provided materials for the project through February 7, 2011. Specifically, in paragraph 8, Orchard stated that notice of All-Phase's claim was sent to the mayor on April 6, 2011, "which was 58 days after [All-Phase] supplied the last of the materials for the project." Appellant's App. p. 60. Thus, in addition to the City's admission, Orchard's affidavit established that All-Phase gave timely notice of its unpaid claim.

The City argues that its motion to strike should have been granted because there is nothing in Orchard's affidavit that established his personal knowledge of the fact that All-Phase provided materials through February 7, 2011. But "an affidavit need not contain an explicit recital of personal knowledge when it can be reasonably inferred from its contents that the material parts thereof are within the affi-ant's personal knowledge." DeLage Landen Fin. Servs., Inc. v. Cmty. Mental Health Ctr., Inc., 965 N.E.2d 693, 701 (Ind.Ct. App.2012) (citing Decker v. Zengler, 883 N.E.2d 839, 844 (Ind.Ct.App.2008), trams. denied), trans. denied. Here, it can be reasonably inferred that Orchard had personal knowledge of when All-Phase provided materials for the project because as All-Phase's Credit Manager, Orchard was responsible for maintaining the company's books and records. See id. (court could reasonably infer that affiant had personal knowledge of documents at issue and corresponding accounts based on affiant's position as a Litigation Recovery Specialist); Skaggs v. Merchs. Retail Credit Ass'n, Inc., 519 N.E.2d 202, 203 (Ind.Ct.App.1988) (because affiant was employed by phone company and responsible for customer billing and collections, court could reasonably infer that recital of payments and credits made by phone-service customer were based on personal knowledge). The trial court did not err by denying the City's motion to strike.

Finally, the City argues that there was evidence establishing that All-Phase last provided materials on February 8, 2011, instead of February 7, 2011, which created a genuine issue of material fact precluding summary judgment. The City points to two delivery tickets as support for its claim. But the tickets do not clearly establish when All-Phase last provided materials. And the evidence before the trial court was the City's admission that All-Phase provided materials through February 7, 2011, as well as Orchard's affidavit to that effect. We cannot say that the trial court erred by concluding that All-Phase provided timely notice of its unpaid subcontractor's claim.

The party moving for summary judgment bears the burden of establishing that no genuine issue of material facts exists. The burden then shifts to the nonmoving party to establish that a genuine issue does in fact exist. As the moving party, All-Phase made a prima facie showing that no genuine issue of material fact existed as to its right to recover under Indiana Code section 86-1-12-12; the City failed to establish the contrary. We therefore conclude that the trial court properly granted summary judgment for All-Phase.

Affirmed.

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

      . Section 36-1-2-1 states that "the definitions in this chapter apply throughout this title."

      . The City's argument hinges on language not found in the statute; specifically the power to award the contract at issue. See Appellee's Reply Br. p. 4. But we need not address the City's addition to the statute; as we explain below, their interpretation of the section fails.

      . Although an admission is ordinarily binding on the party who made it, there are exceptions, such as where an admission no longer is true because of changed circumstances or when an honest error occurred. See Gen. Motors Corp., Chevrolet Motor Div. v. Aetna Cas. & Sur. Co., 573 N.E.2d 885, 889 (Ind.1991). The City does not argue that it should not be bound by its admission for any such reason, and to the extent the City implies that the request was ambiguous, we disagree.

      . The City acknowledges that the ticket upon which it largely relies is not plainly dated. While there is a ship date listed, there is no pickup or delivery date next to the signature. See Appellant's App. p. 76.


author: BAILEY, Judge.

text:
    Joseph EVERROAD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 55A01-1303-CR-107.
    Court of Appeals of Indiana.
    Nov. 27, 2013.

      William Van Der Pol, Jr., McCalla, AL, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Joseph Everroad ("Everroad") appeals his conviction for Robbery, as a Class B felony, presenting the sole issue of whether the trial court admitted evidence in contravention of his Sixth Amendment right of confrontation. We affirm.

Facts and Procedural History °

On June 4, 2012, at around 9:00 a.m., Amanda Johnson, a teller at the First Merchants Bank in Morgantown, Indiana, was robbed at gunpoint. Subsequently, several individuals (including Everroad's former employer and probation officers) identified Everroad as the man captured on the bank's surveillance video.

Everroad was charged with Robbery and Theft, tried before a jury, and found guilty as charged. The trial court entered a judgment of conviction only upon the Armed Robbery count and sentenced Eiv-erroad to twenty years imprisonment. He now appeals.

Discussion and Decision

At trial, the State called as a witness Jim Thomas ("Thomas"), an investigator for the Morgan County Prosecutor's Office. Thomas had been responsible for serving a search warrant on AT & T Mobile ("AT & T") to obtain Everroad's cell phone records. Anticipating that Thomas would likely testify that Everroad's cell phone records placed him near the robbery location on June 4, 2012, Everroad requested a preliminary hearing on Thomas's professional qualifications and the admissibility of his testimony.

During the hearing outside the presence of the jury, Thomas testified that he had attended a three-day seminar in 2008 to receive training in "forensic cell phone data." (Tr. 382.) On cross-examination, Thomas admitted that he had not attended a subsequent training session and the following exchange took place:

Defense Counsel: You have no idea whether or not there's been any changes in that information, how they generate that, how you're to interpret it, since your training four plus years ago?
Thomas: I received information from, I guess you could say the providers, which give a legend as far as how to interpret the calls, or whatever.
Defense Counsel: But you would agree that legend is not as narrowed and certified by AT & T, it is not part of the packet that is certified in this case? And the State just gave me a wink and a nod that they acknowledge it's not in the certified packet with the [sic] AT & T. Therefore, you're limited to what you learned in 2008 in terms of non-hearsay documentation, true statement? Okay, in terms of non-hearsay documentation, your sole training would be in 20087
Thomas: Correct.

(Tr. 387-88.) Everroad then asserted that he "would have a confrontation of [sic] cross-examination rights that we have not waived as to that legend." (Tr. 390.) The document, "Legend for AT & T Mobility Records" (in relevant part, providing "Key Character Definitions," "Suffix Definitions," and "Key Prefix Definitions"), (hereinafter, "the legend"), was marked for admission into evidence as Exhibit 34. Everroad's counsel then reiterated his position:

Judge, just to clarify, it is our belief that starting at Crawford v. Washington, likely the most recent elicitation from [the] Supreme Court, (inaudible) confrontation and eross examination, is as outlined in Williams vs. Illinois We believe that having this expert testify is going to violate the Defendant's Sixth Amendment right to confrontation and cross examination. Not as to the AT & T records themselves, but as to the interpretation of those AT & T records by a use of a hearsay document. We also do not believe that he meets the qualifications under either 701 or 702 to interpret those records.

(Tr. 398.) The trial court ruled that Thomas could testify before the jury as a skilled witness and further concluded, with respect to the AT & T legend: "It is merely an aid and a tool that this witness is using to make a determination of what the short hand abbreviations are that AT & T is using in the document that they sent to him." (Tr. 402.)

Everroad lodged his continuing objection. Additionally, when Thomas described Exhibit 34 to the jury as "a legend that explains how they interpret the acronyms that they put on there, billing ree-ords on [sic] the records that I received," Everroad renewed his objection that his Sixth Amendment right of confrontation was being violated. Ultimately, Thomas testified that, from 8:35 a.m. to 9:01 a.m. on June 4, 2012, Everroad's cell phone was "hitting off of a tower" located in Brown County, Indiana (Tr. 425.)

On appeal, Everroad no longer claims that Thomas lacked sufficient qualifications to interpret AT & T records. However, he contends that the legend was hearsay upon which Thomas relied to support his conclusion of location, the drafter of the legend should have been called to testify, and the omission violated his right of confrontation as recognized in Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

The Sixth Amendment, applicable to the states through the Fourteenth Amendment, requires: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. The Confrontation Clause bars admission of a witness's testimony against a defendant unless the witness appears at trial or is unavailable to testify and the defendant had a prior opportunity for cross-examination. Pendergrass v. State, 913 N.E.2d 703, 705 (Ind.2009), cert. denied, 560 U.S. 965, 130 S.Ct. 3409, 177 LEd.2d 323 (2010). However, the Confrontation Clause applies only to testimonial statements, that is, "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford, 541 U.S. at 51, 124 S.Ct. 1354 (quoting 2 N. Webster, An American Dictio-mary of the English Language (1828). More precisely, a testimonial statement for Sixth Amendment purposes is one made to establish a fact in a criminal proceeding. See Bullcoming v. New Mexico, - U.S. -, 131 S.Ct. 2705, 2716, 180 L.Ed.2d 610 (2011).

Everroad implicitly argues that Exhibit 34, the legend, is testimonial in nature, analogizing his cireumstances to those of the defendant in Williams v. Illinois, - U.S. -, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), a case involving the admission of DNA results. In Williams, vaginal swabs taken from a rape victim were submitted to Cellmark, an independent, private laboratory. Cellmark then produced a report transmitting a DNA profile that Cellmark analysts had purportedly developed from the vaginal swabs. Using the DNA profile obtained from Cellmark, Sandra Lambatos ("Lambatos"), a forensic specialist at the Illinois State Police Lab, searched the IIli-nois database and found a matching profile, that of Williams. At trial, Williams unsuccessfully lodged a Confrontation Clause objection and Lambatos was permitted to testify that the DNA profile of Williams's blood in the state database matched a male DNA profile Cellmark had created from semen in the victim's vaginal swabs. Although Cellmark's written report was not introduced into evidence, Lambatos was allowed to rely upon it during her expert testimony. No witness having personal knowledge of Cellmark's development of the putative offender's DNA profile testified at trial.

Five justices concluded that the Confrontation Clause was not violated by Lam-batos's testimony because the information in Cellmark's report was not testimonial. Four justices agreed that the objective purpose of the report was to catch a rapist as opposed to creating evidence for trial. Williams, 132 S.Ct. at 2244. Justice Thomas disagreed with the rationale of the lead opinion but concurred in the judgment. According to Justice Thomas, the Cellmark report was not testimonial because it "lacks the solemnity of an affidavit or deposition, for it is neither a sworn nor a certified declaration of fact." Id. at 2260.

Williams does not provide Everroad with the result that he desires. Indeed, Everroad's argument that Exhibit 34 is testimonial in nature is even less compelling than that in Williams, where a declaration of fact rested in part on reporting of an analysis performed by another analyst and lab. Exhibit 34 is simply a glossary of terms to guide the interpretation of an AT & T bill, providing definitions corresponding to abbreviations on the bill. For example, IN means "Inbound Message" and OUT means "Outbound Message"; VMN means "VoiceMail message is waiting notification." (Ex. 34.) It is not a solemn declaration for the purpose of establishing some fact. Nor was the legend compiled to establish a fact in a criminal proceeding. As such, it is not testimonial.

Conclusion

Everroad enjoyed the right to confront Thomas, who testified at trial and was subject to cross-examination. The legend to which he referred was not testimonial. Everroad has shown no deprivation of his Sixth Amendment right of confrontation.

Affirmed.

MAY, J., and BRADFORD, J., concur.

      . Ind.Code § 35-42-5-1.

      . Documents were primarily admitted into evidence by stipulation of the parties; as such, exhibits are not labeled either State exhibits or defense exhibits.

      . The tower is approximately one mile south of the First Merchants Bank in Morgantown.


author: PYLE, Judge.

text:
    Peter A. ROBERTS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 10A05-1301-CR-35.
    Court of Appeals of Indiana.
    Nov. 27, 2013.

      Jeffrey D. Stonebraker, Chief Public Defender, Jeffersonville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

Peter Roberts ("Roberts") appeals the trial court's assignment of credit time for his convictions of eriminal confinement, a Class D felony, and battery, a Class C felony. Pursuant to Indiana Rule of Appellate Procedure 9(D), the State cross-appeals, contending that the trial court abused its discretion by awarding Roberts credit time for days spent on pre-trial home detention.

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

ISSUE

1. Whether the trial court abused its discretion by granting Roberts 305 days of credit for time served against his sentence on pre-trial home detention.
2. Whether Roberts is entitled to good time credit for time spent released on pre-trial home detention.

FACTS

On October 16, 2010, at approximately 10:00 P.M., twenty-five-year-old Elizabeth Davey ("Davey") arrived at Blackiston Mills Bowling with a group of friends. The group bowled together until around 12:30 A.M. Afterwards, Davey went alone to another section of the bowling alley to sing karaoke. Meanwhile, some of her friends continued to bowl while others went across the street to a friend's house.

Robert Schuler ("Schuler") was working as the dise jockey at the bowling alley that night. He and his wife, Mary Robinson ("Robinson"), had been working at the bowling alley since approximately 9:00 P.M. Schuler and Robinson knew Davey through prior occasions when she sang karaoke, but, on that night, the couple had not seen Davey for approximately one year, so they talked with her about changes in her life, including Davey having a son, "J."

Davey sang three to four songs and sat by herself in a corner of the bar. Between two and three in the morning, as the bowling alley was closing, Davey sang the last song of the night. She walked to the exit, planning to retrieve possessions from her car and then walk to her friend's house across the street to spend the night. To exit the bowling alley, Davey had to walk through two sets of doors.

Roberts, the president of a bowling league at the alley, had been at the bowling alley since 6:30 P.M. He bowled three games and then went to the bar with some other members of the league. Roberts remained at the bar until approximately 2:30 A.M., when karaoke was ending. As Davey was leaving the bowling alley, Roberts was standing at the second set of doors at the exit and opened the door for Davey, who thanked him as she walked out of the alley. Davey had never previously met Roberts. While Davey walked to her car, Roberts came up behind her and picked her up off the ground, pinning her arms to her side. Davey asked Roberts "What's going on?" and Roberts instructed her to "keep quiet." (Tr. 188). Davey kicked her feet and was able to break loose, but Roberts fell on top of her, picked her up, and told her again to "be quiet." (Tr. 189).

Roberts carried Davey to the passenger side of his truck. Davey was still struggling and nearly managed to break free a second time, but when she realized that Roberts had a knife against her neck, she stopped struggling. Roberts pinned Da-vey against his truck with her face toward the vehicle. He began to cut Davey's neck with the knife, asking "Can you feel this?" (Tr. 190). Davey begged Roberts not to kill her and told him about her son J. (/d.).

By this time, Robinson was in the parking lot to bring her vehicle closer to the alley's doors so that her husband would have less distance to carry his stereo equipment. Robinson saw a small woman's flip-flop and "heard a muzzled sound, like a ery." (Tr. 39). As Robinson walked further into the parking lot, she heard "a ery for help" and then a woman saying "Please don't kill me; I don't want J[ ] to g[row] up without his mother." (Tr. 40). Robinson remembered her prior conversation with Davey about J. and remembered that Davey had been wearing flip-flops of that size. When Robinson reached her truck, she saw Roberts and Davey against Roberts' truck. Roberts removed something from his pocket and activated his truck's lights. After he did so, the lights "got real bright" and obstructed Robinson's vision. (Tr. 41).

Robinson drove her truck up to the alley's entrance to get her husband. During this time, Roberts had placed Davey into the front passenger seat of the truck and secured a rope around Davey's neck. He began tying the rope around her feet. Da-vey cried, and Roberts closed the truck's door. Robinson told her husband what she had witnessed and began sereaming at her husband to go to Roberts' truck. Schu-ler alerted Roger Smith, an employee at the bowling alley, to the situation. The two men then went to Roberts' truck and opened the passenger door. Roberts pulled the door shut and told the men "to stay out of it." (Tr. 98). Through the passenger window, Schuler saw Roberts on top of Davey with a knife in his hand and a rope around Davey's neck. Davey was screaming and kicking her legs. Schuler and Smith pulled Roberts off of Davey, and after Schuler restrained Roberts in a bear hug, Davey fled from the truck.

As Davey ran from the truck, she took the rope, which was tied like a noose, off from around her neck and dropped it onto the ground. Robinson called 9-1-1 from inside of her vehicle, and Davey ran into the bowling alley. Roberts struggled with Schuler and told Schuler to let him go. The Clarksville police was dispatched to the seene. When an officer arrived, Schu-ler, Smith, and the officer secured Roberts in handcuffs.

Detective Raymond Hall ("Det. Hall") with the Clarksville Police Department arrived at the seene after the men handcuffed Roberts. Paramedics attended to Davey, who suffered cuts to her hand and throat. Inside of Roberts' truck, Det. Hall found a knife on the center console and drops of blood in the vehicle.

The State subsequently charged Roberts with one count each of criminal confinement as a Class B felony, intimidation as a Class D felony, strangulation as a Class D felony, and battery as a Class C felony. Roberts spent 67 days in jail from the date of his arrest, October 16, 2010, until the date he posted as was released on bond and pre-trial home detention, December 21, 2010.

Following a jury trial on August 21-23, 2012, Roberts was convicted of battery, intimidation, and criminal confinement. Roberts spent thirty days in jail from the date of his conviction until the date of his sentencing.

On September 21, 2012, the trial court held a sentencing hearing at which it vacated Roberts' conviction for intimidation. The trial court sentenced Roberts to six years in the Indiana Department of Correction ("DOC"), and it granted Roberts 67 days for actual time served incarcerated prior to trial. Roberts subsequently filed a Motion to Correct Error and the trial court's amended judgment of conviction and sentence granted Roberts "409 actual days credit against his sentence comprised of 97 days in jail and 305 days for credit granted for house arrest detention prior to trial." (App. 238).

DECISION

"Credit for time served" is defined as "the credit toward the sentence a prisoner receives for time actually served." Purcell v. State, 721 N.E.2d 220, 222 (Ind.1999), review demied. "Good time credit" is "the additional credit a prisoner receives for good behavior and educational attainment." Id. Because Roberts appeals the trial court's decision on both types of ered-it, we will discuss each type in turn.

1. Credit Time for Time Served on PreTrial Home Detention

Roberts first challenges whether the trial court properly credited him for 611 days of actual time served. Specifically, he contends that the trial court erred by halving his credit for actual time served with the expectation that the Department of Correction ("DOC") would award him good time credit for each day, thus having the practical effect of giving him eredit for 610 days, rather than 611. On cross-appeal, the State argues that Roberts is not entitled to any credit for actual time served for the days he spent on pretrial home detention, and the trial court abused its discretion in awarding him that credit.

Under Indiana Code § 35-60-64, "[al person who is not a credit restricted felon and who is imprisoned for a crime or confined awaiting trial or sentencing is initially assigned to Class I" for the purposes of assigning credit. In Class I, a person "earns one (1) day of credit time for each day the person is imprisoned for a crime or confined awaiting trial or sentencing." Ind.Code § 35-50-6-8.

"Because pre-trial jail time credit is a matter of statutory right, trial courts generally do not have discretion in awarding or denying such credit," Molden v. State, 750 N.E.2d 448, 449 (Ind.Ct.App.2001), reh'g denied. "However, those sentencing decisions not mandated by statute are within the discretion of the trial court and will be reversed only upon a showing of abuse of that discretion." Id. An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and cireumstances before it. Hoglund v. State, 962 N.E.2d 1230, 1237 (Ind.2012), reh'g denied. There is no statute that addresses credit for time served while on pre-trial home detention. Molden, 750 N.E.2d at 451. Therefore, we will review the trial court's decision for an abuse of discretion. Id.

As the State correctly points out, Purcell is controlling precedent. In that case, the Indiana Supreme Court explained that "a defendant is only entitled to credit toward sentence for pre-trial time served in a prison, jail, or other facility which imposes substantially similar restrictions upon personal liberty." Purcell, 721 N.E.2d at 224, n. 6. See also Molden, 750 N.E.2d at 451 ("Specifically, Molden argues here that because a convicted person serving his sentence on home detention is entitled to credit for time served toward a subsequent prison sentence if the court revokes the home detention under Indiana Code Section 35-88-2.6-5, a person in pretrial home detention is likewise entitled to credit for time served against any eventual sentence. We cannot agree.") (internal citation omitted).

Therefore, the trial court would have been within its discretion to deny Roberts any credit for time served in pre-trial home detention. See Lewis v. State, 898 N.E.2d 1286, 1292 (Ind.Ct.App.2009) ("We find no abuse of discretion in the trial court's determination that Lewis would not be awarded credit time for pre-trial home detention"); Senn v. State, 766 N.E.2d 1190, 1202 (Ind.Ct.App.2002) ("[It is our determination that the trial court did not err when it refused to credit Senn's sentence for time served on home detention as a condition of pre-trial release"); Molden, 750 N.E.2d at 451 ("[Wle hold in this case that the trial court acted within its diseretion when it denied Molden sentence eredit for time spent in pre-trial home detention").

However, in the present matter, as both parties point out, the trial court attempted to give Roberts day-for-day credit against his sentence (rather than two-for-one credit time), by approximately halving the number of days he actually spent on pre-trial home detention with the expectation that the DOC would award him an equal number of credit time days. See Robinson v. State, 805 N.E.2d 783, 789-92 (Ind.2004) (creating the presumption that when a trial court reports only days spent in pre-trial confinement without designating credit time, the DOC should "automatically [] award the number of eredit time days equal to the number of pre-sentence confinement days."). While the trial court is within its discretion in assigning Roberts credit against his sentence for the 611 days he spent on home detention, Purcell, 721 N.E.2d at 224, n. 6, the problems with its method of achieving that result are twofold. First, by only assigning Roberts credit for 305 actual days served, with the expectation that the DOC would double that number, the trial court's decision had the practical effect of giving Roberts credit for 610 days, rather than 611 days. Second, as the Indiana Supreme Court made clear in Robinson, if a trial court wishes to deny a defendant credit time, "[it] must report it in the sentencing judgment." Robinson, 805 N.E.2d at 789.

To properly deny Roberts two-for-one credit time and instead give him credit only for the actual number of days spent on pre-trial home detention, the trial court should have granted him 611 days actually served against his sentence and expressly denied him any eredit time under Ind.Code § 35-50-6-3 for those days. Alternately, should the trial court wish to deny Roberts credit for any or all of the 611 days, it would be within its discretion to do so, see Molden, 750 N.E.2d at 451, but again, it would need to report the denial in its sentencing judgment. Robinson, 805 N.E.2d at 789. We therefore reverse the trial court's assignment of 305 days actual time served and remand for sentencing consistent with Robinson and this opinion.

2. Good Time Credit for Time Spent Released on Bond in Pre-Trial Detention

Roberts next challenges the trial court's decision not to award him good time credit for the days he spent on pre-trial home detention. Specifically, Roberts recognizes that there is no basis for awarding him good time eredit but argues that "[it is difficult, if not impossible, to explain why time spent on home detention as a condition of probation merits eredit for time served and good time credit while credit for time spent on home incarceration prior to conviction is not worthy of equal treatment." (Roberts' Br. 13.)

This Court has explained previously the distinction between home detention pre-and post-conviction. In Senn, we were not persuaded that "home detention as a condition of pretrial release is 'upon the same terms' as home detention as a condition of probation," Senn, 766 N.E.2d at 1202, and nowhere does Roberts argue that he has established their equivalence. Furthermore, we have held previously that because "the potential consequences ... are much more serious for a post-conviction violation than a pretrial violation," Lewis, 898 N.E.2d at 1291, pre-trial home detention is "not worthy of equal treatment." Id. at 1290. Roberts' argument on this ground is therefore unavailing.

Furthermore, as the State correctly points out, Roberts' reliance on this Court's recent decision in Peterink v. State, 971 N.E.2d 735 (Ind.Ct.App.2012), trans. granted, summarily aff'd, 982 N.E.2d 1009 (Ind.2013) (holding that good time credit was statutorily mandated for home detention as a condition of probation) is misplaced, as Peterink concerned only home detention as a condition of probation, not pre-trial home detention. Although Roberts also points to that case, in addition to the legislature's 2010 lifting of the good time deprivation in Ind.Code § 35-38-2.6-6 as "illustratling] a change in legislative direction justifying the crediting of time served or good time to all home detention, whether pre-sentence or post-sentence" (Roberts' Br. 12), we are not moved.

There is no basis in statute or case law for awarding good time eredit to a defendant for time spent on pre-trial home detention. Indeed, Roberts recognizes that he is not entitled to good time eredit, but he nonetheless persists in arguing that this Court should depart from precedent and award him such credit because he "can see no justification for Indiana's current statutes and caselaw [sic] to deprive him for credit for time served and the good time credit for the 611 days he spent on home detention prior to trial." (Roberts' Br. 13). We will not do so. Our standard of review is limited to an abuse of discretion, Molden, 750 N.E.2d at 451, and the trial court did not abuse its discretion by not awarding Roberts good time eredit for the time he spent on pre-trial home detention. Accordingly, the trial court's decision on this issue is affirmed.

For the foregoing reasons, the trial court's decision is affirmed in part and reversed in part. The matter is remanded for resentencing consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

CRONE, J., and BARNES, J., concur.

      . Ind.Code. § 35-42-3-3.

      . Ind.Code. § 35-42-2-1.


author: BROWN, Judge.

text:
    ANONYMOUS PHYSICIAN, Appellant-Defendant, v. Diana WININGER, Appellee-Plaintiff, and Stephen Robertson, Commissioner, Indiana Department of Insurance, and Douglas J. Hill, Panel Chair, Third Party-Respondents.
    No. 59A04-1303-MI-103.
    Court of Appeals of Indiana.
    Nov. 27, 2013.

      David G. Field, Brandon M. Kimura, Schultz & Pogue, LLP, Indianapolis, IN, Attorneys for Appellant.
    Zachary J. Eichel, Michael L. Einterz, Einterz & Einterz, Zionsville, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

In this interlocutory appeal, Anonymous Physician ("A.P.") appeals the trial court's denial of his motion for summary judgment in a medical malpractice action filed by Diana Wininger. The sole issue for our review is whether the trial court erred in denying A.P.'s summary judgment motion. We reverse.

FACTS AND PROCEDURAL HISTORY

In February 2007, Wininger saw AP. for pain in her right foot. The following month, when Wininger returned for a follow-up appointment and told A.P. that her foot pain had worsened, AP. recommended surgery. On March 20, 2007, A.P. shortened the second toe on Wininger's right foot and corrected a deformity. By July 2007, the second toe on Wininger's right foot was standing up at a 45 degree angle and Wininger continued to suffer from foot pain. AP. recommended patches and strapping to alleviate Wining-er's continued pain. In September 2007, AP. recommended physical therapy. By October 2007, Wininger realized that she was not experiencing the relief she had expected. The toe on her right foot was still standing up at a 45 degree angle, and her foot hurt more than it did before the March 2007 surgery. Wininger testified in her deposition that she knew by October 2007 that she should get a second medical opinion.

In April 2009, more than two years after the surgery, Wininger went to see Dr. Kevin Powers for the second opinion. Before seeing Dr. Powers, Wininger filled out a patient intake form. One of the questions asked the reason for her visit, and Wininger responded that "[A.P.] messed [her] foot up." Appellant's Appendix at 79. After examining Wininger, Dr. Powers advised her that the second toe on her right foot was too short and recommended an additional surgery to re-lengthen the toe.

On March 9, 2011, nearly two years after seeing Dr. Powers, Wininger filed a proposed complaint for malpractice with the Indiana Department of Insurance alleging that AP. rendered substandard care during the initial March 20, 2007 surgery. According to Wininger, A.P. failed to properly perform the surgery and failed to identify and treat the problems created by his negligence. AP. filed a Petition for Preliminary Determination of Law and for Summary Judgment Based on the Statute of Limitations. Specifically, A.P. pointed out that the alleged act of malpractice occurred on March 20, 2007, and Wininger did not file her complaint until March 9, 2011, days shy of four years after the surgery. AP. argued that Wininger's claims were barred by the two-year statute of limitations set forth in the Medical Malpractice Act. The trial court denied A.P.'s motion after a hearing and certified its order for interlocutory appeal. On A.P.'s motion, this Court accepted jurisdiction.

DISCUSSION

When reviewing the grant or denial of summary judgment, we apply the same standard as the trial court. Workman v. O'Bryan, 944 N.E.2d 61, 64 (Ind.Ct.App.2011), trans. denied. Summary judgment is proper only when the designated evidence shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. All facts and reasonable inferences therefrom are construed in a light most favorable to the nonmovant. Id. at 65. The statute of limitations defense is particularly suitable as a basis for summary judgment. Id. When the moving party asserts the statute of limitations as an affirmative defense and establishes that the action was commenced beyond the statutory period, the burden shifts to the rnonmovant to establish an issue of fact material to a theory that avoids the defense. Id. Any doubts as to the existence of a material issue are resolved in favor of the nonmovant. Id.

Ind.Code § 34-18-7-1 provides that a claim against a health care professional, based upon health care that was provided or should have been provided, must be filed within two years of the alleged act, omission, or neglect. This is an "oecurrence-based statute of limitations that passes constitutional muster except in cases where the patient does not suffer symptoms that put the patient on notice that something may have gone wrong in the course of medical treatment." Johnson v. Gupta, 762 N.E.2d 1280, 1283 (Ind.Ct.App.2002). In such cases, the statute of limitations is tolled until the patient experiences symptoms that would cause a person of reasonable diligence to take action that would lead to the discovery of the malpractice. Id.

AP. argues that Wininger was put on notice as early as October 2007 that something may have gone wrong with her March 2007 surgery. Therefore, according to AP., the statute of limitations was not tolled in this case, and Wininger should have filed her complaint within two years of the surgery. Wininger, on the other hand, argues that she did not know that something may have gone wrong in the course of medical treatment until she consulted with Dr. Powers on April 29, 2009, and learned that the second toe of her right foot was too short. Therefore, according to Wininger, her complaint was timely filed in March 2011.

Johnson, 762 N.E.2d at 1280, is instructive. There, Dr. Gupta performed a laser hemorrhoidectomy on Johnson in 1990. Almost immediately after surgery, Johnson became "incontinent of stool." Id. at 1282. Dr. Gupta assured Johnson that her symptoms would disappear. Almost four years later, another doctor discovered that Johnson's rectal muscles had been severed during the procedure. Johnson filed a medical malpractice complaint within two years after that diagnosis, and the trial court granted summary judgment in favor of Dr. Gupta.

On appeal, Johnson argued that she did not discover the malpractice until she was informed by another doctor four years after the initial surgery that Dr. Gupta had severed her rectal muscles and caused her incontinence. However, we declined to hold that the statute of limitations is tolled until the patient discovers a causal link between the physician's actions and the patient's injury. Id. at 1288. A plaintiff does not need to be told malpractice occurred to trigger the statute of limitations. Brinkman v. Bueter, 879 N.E.2d 549, 555 (Ind.2008). Rather, the statute is tolled until the patient experiences symptoms that would cause a person of reasonable diligence to take action that would lead to the discovery of the malpractice. Johnson, 762 N.E.2d at 1283. In Johnson, for example, we concluded that Johnson's fecal incontinence following a hemorrhoid-ectomy was apparently related to the alleged malpractice or at the very least would cause a person of reasonable dili-genee to take action that would lead to the discovery of the malpractice. Id. See also GYN-OB Consultants, LLC. v. Schopp, 780 NE.2d 1206, 1211 (Ind.Ct.App.2003) (holding that statute of limitations was not tolled where almost immediately after surgery, patient experienced symptoms that should have led to the discovery of removal of skin tags from her vagina without her consent), trans. denied.

Here, as in Johnson and Schopp, Win-inger experienced discernible symptoms apparently related to the alleged malpractice. Specifically, a few months after the surgery to shorten her toe, that same toe stood up at a 45 degree angle, and Wining-er continued to suffer foot pain. By October, 2007 Wininger knew that she should get a second medical opinion. When she saw Dr. Powers more than two years after the surgery, she explained that the reason for her visit was that "A.P. messed [her] foot up." Appellant's Appendix at 79. Under these cireumstances, the statute of limitations was not tolled, Wininger's complaint was not timely filed, and the trial court erred in denying AP's summary judgment motion.

CONCLUSION

For the foregoing reasons, we reverse the trial court's denial of A.P.'s summary judgment motion.

Reversed.

MAY, J., and MATHIAS, J., concur.


text:
    STERLING COMMERCIAL CREDIT-MICHIGAN, LLC, Appellant-Plaintiff, v. HAMMERT'S IRON WORKS, INC., Appellee-Defendant.
    No. 49A02-1306-PL-513.
    Court of Appeals of Indiana.
    Nov. 27, 2013.

      Donald D. Levenhagen, Landman & Beatty, Lawyers, LLP, Indianapolis, IN, Attorney for Appellant.
    Thomas R. Ruge, Tabitha J. Lucas, Lewis & Kappes, P.C., Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Sterling Commercial Credit-Michigan, LLC, ("Sterling") appeals the trial court's grant of summary judgment in favor of Hammert's Iron Works, Inc., ("Ham-mert's") on both Sterling's complaint and Hammert's counterclaim. We reverse and remand with instructions for the trial court to enter summary judgment in favor of Sterling on its complaint as well as on Hammert's counterclaim.

FACTS AND PROCEDURAL HISTORY

In May 2010, general contractor C.D. Smith entered into a $1.8 million contract with subcontractor Hammert's for construction work at the Veteran's Administration Outpatient Clinie in Evansville. Pursuant to the terms of the contract, Hammert's agreed to furnish and install structural steel framing, steel floor decking, and roof decking. The contract required Hammert's to submit lien waivers with each payment request.

Hammert's subsequently entered into a $490,000 subcontract with National Steel Erectors, Inc., ("NSE") for steel work on the project. Pursuant to the terms of this "pay if paid" agreement, Hammert's was not obligated to pay NSE until C.D. Smith paid Hammert's. NSE also agreed to submit lien waivers with requests for payment.

In August 2010, NSE entered into a Factoring and Security Agreement with Sterling. The agreement gave Sterling the right but not the obligation to purchase NSE's invoices. Before deciding whether to purchase each invoice, Sterling required a verification letter from Ham-mert's to confirm the validity of the invoice and that the amount specified in the invoice was earned, due, owing, and final exeept for payment. Specifically, the verification letter asked Hammert's to "confirm that the work, product or service has been completed and accepted and that there are not joint checks requests, offsets, credits, debits for counterclaims of any kind, and that this job is not subject to any payment bonds, contractors bonds, performance bonds, or other bonded obligations." Appellant's Appendix at 95. The letter also stated that Sterling was "reliant upon this verification in order to provide financing to your vendor." Id. Once Sterling received a signed verification letter from Hammert's, Sterling would purchase the invoice from NSE for 85% of the invoice total and then wait to receive the total invoice amount from Hammert's. This agreement allowed NSE to bridge any cash flow gap between the time it issued the invoices and the time the invoices were due.

In September 2010, NSE submitted its first invoice ("Invoice 1") for $144,045, and Sterling sent a payment verification letter to Hammert's regarding the invoice. Hammert's verified that the $ 144,045 was earned, owing, and final but explained that because the terms of the contract specified pay when paid, the pay date was only an estimate because funds were not payable until Hammert's received payment from C.D. Smith, After receiving the signed Verification Letter from Hammert's, Sterling purchased Invoice 1 from NSE for $122,438.00, which was 85% of the invoice total.

In October 2010, NSE submitted Invoice 2 for $174,427.20. Sterling sent a second verification letter to Hammert's asking it to confirm that NSE had completed the work. Sterling explained that it was "reliant upon this verification in order to provide financing to [NSE]." Id. Hammert's confirmed that:

the work, product or service [provided by NSE] has been completed and accepted and that there are no joint check requests, offsets, credits, debits or counterclaims of any kind, and that this job is not subject to any payment bonds, contractors bonds, performance bonds, or other bonded obligations.

Id. As it did in the prior verification letter, Hammert's explained that because the terms were pay when paid, Hammert's would not make the payment until C.D. Smith paid Hammert's. Based upon the contents of the verification letter, on October 8, 2010, Sterling paid NSE $148,263.12, which was 85% of Invoice 2.

In November 2010, NSE submitted In-voiee 3 in the amount of $38,866.50. Sterling sent Hammert's a payment verification letter, wherein Hammert's again confirmed the invoice amount and that the invoiced work had been completed and accepted and that there were no offsets, credits, debits or counterclaims of any kind. Hammert's also again explained the pay if paid payment contin-geney and stated that the pay date was only an estimate because funds were not payable until Hammert's received payment from C.D. Smith. Thereafter, Sterling purchased the invoice and paid NSE $33,036.53, which was 85% of the invoice amount.

At the end of November 2010, one month after sending Sterling the verification letter for Invoice 2, Hammert's wrote NSE and requested information about any unpaid subcontractors. Hammert's explained that it would cooperate with NSE in paying NSE's subcontractors with arrangements which could include joint check requests. NSE responded that it owed $50,116.49 to subcontractors. In December 2010, Hammert's sent Sterling $174,427.20 to pay for Invoice 2. However, in a cover letter accompanying the payment, Hammert's attempted to impose conditions on Sterling's acceptance of the check, such as paying NSE's unpaid subcontractors. Hammert's asked Sterling to consent to these conditions by signing the cover letter and returning it to Hammert's. Sterling ignored the cover letter and deposited the $174,427.20 check. Hammert's never paid Sterling the $38,866.50 under Invoice 3.

On December 14, 2010, NSE advised Hammert's that it was going out of business and would not be completing the remainder of its contract. Hammert's eventually completed NSE's work and paid NSE's subcontractors an amount less than the amount remaining on NSE's contract.

In November 2011, Sterling filed a complaint against Hammert's seeking payment of the $38,866.50 from Invoice 8. Specifically, Sterling alleged that Hammert's breached its subcontract agreement with NSE when it failed to pay NSE's Invoice 3. Sterling also argued that as a result of Hammert's written representation to Sterling, on which Sterling relied in providing financing to NSE, Hammert's is estopped to deny payment on Invoice 3. Hammert's denied the allegations in Sterling's complaint and filed its own counterclaim alleging that Sterling breached an agreement when it failed to acknowledge receipt of the check for Invoice 2, failed to send Hammert's a lien waiver, or failed to issue payment to NSE's lower tier vendors, suppliers, and subcontractors. Hammert's also alleged that Sterling misappropriated its funds, and as a result of Sterling's conduct, Hammert's had to expend additional money to pay off and satisfy the liens and claims asserted by NSE's vendors, suppliers and subcontractors and suffered out of pocket damages in the amount of at least $121,986.19. Hammert's asked the trial court to enter judgment on its counterclaim and award it $121,986.19 plus interest.

In August 2012; Hammert's filed a motion for summary judgment. Sterling filed a response and a cross motion for summary judgment on the complaint as well as the counterclaim. In support of its motions, Sterling designated the affidavit of William Small, Sterling's Chief Executive Officer. In his affidavit, Small explained as follows:

5. [Sterling's] usual and customary practice before purchasing an account or invoice from an account creditor/assign- or, such as [NSE] in the present case, is to obtain a signed Verification Letter from the account debtor. On all [NSE's] invoices to [Hammert's] purchased by [Sterling], signed Verification Letters from [Hammert's] were obtained by [Sterling].
6. The purpose of the Verification Letter, such as the three signed Verification Letters of [Hammert's] in the present case, is to confirm the validity of the account or invoice in the amount stated in the Letter and establish an asset value. As a condition precedent for purchasing the invoice, [Sterling] must verify that the invoiced amount is earned, due, and owing and final except for payment. Consistent with usual and customary practice in the factoring industry, the factor assumes only the risk of creditworthiness and non-payment by the account debtor. The factor does not in the context of construction invoices assume the risk, unknown and incaleula-ble by [Sterling] that the account creditor/assignor will incur a future liability to the account debtor on the construction project that, absent the Verification Letter, could be set off against and reduce the invoice amount owed. Usual and customary practice in the factoring industry, followed by [Sterling], is that purchasing an invoice that is subject to future unknown contingencies other than non-payment by the account debtor would make no business sense.
7. [Sterling] relies on these Verification Letters before purchasing invoices to reduce or eliminate its assumed risk of nonpayment by an account debtor, and if it does not receive a signed Verification Letter credit in the full amount of the referenced invoice, the invoice may not be purchased by [Sterling].

Id. at 155-56.

Hammert's filed a response to the cross motion and a cross motion for summary judgment on the counterclaim. Following a hearing, the trial court granted Ham-mert's motion, denied Sterling's motion, and entered summary judgment in favor of Hammert's on both the complaint and the counterclaim. At a later damages hearing, the trial court ordered Sterling to pay $121,986.19 in damages plus prejudgment interest from December 10, 2010. Sterling appeals.

DISCUSSION

When reviewing the grant of a summary judgment motion, we apply the same standard applicable in the trial court. Indiana Farmers Mutual Insurance Group v. Blaskie, 727 N.E.2d 13, 15 (Ind.Ct.App.2000). Summary judgment is proper only when the designated evidence shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id. All facts and reasonable inferences therefrom are construed in a light most favorable to the nonmovant. Id. We must reverse the grant of a summary judgment motion if the record discloses an incorrect application of the law to those facts. Id.

The fact that the parties make cross-motions for summary judgment does not alter our standard of review. Id. Instead, we must consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id.

Sterling argues that the trial court erred in granting summary judgment in favor of Hammert's on both Sterling's complaint regarding Invoice 3 and Hammert's counterclaim regarding Invoice 2 because, based upon the two verification letters Hammert's signed and returned to Sterling, Hammert's is estopped to deny payment on Invoice 3 and place payment restrictions on the payment for Invoice 2.

The doctrine of estoppel springs from equitable principles, and it is designed to aid in the administration of justice where, without its aid, injustice might result. Brokaw v. Roe, 669 N.E.2d 1039, 1041 (Ind.Ct.App.1996), trans. denied. The doctrine of promissory estoppel is applicable where there is: (1) a promise by the promisor (2) made with the expectation that the promisee will rely thereon (8) which induces reliance by the promisee (4) of a definite and substantial nature and (5) injustice can be avoided only by enforce ment of the promise. Kacak v. Bank Calumet N.A., 869 N.E.2d 1239, 1242 (Ind.Ct.App.2007). In other words, a promisor who induces a substantial change of position by the promisee in reliance upon the promise is estopped from denying the enforceability of the promise. Id.

The doctrine of promissory estoppel has been ruled applicable to commercial transactions. Id. The use of promissory estop-pel is consistent with the Uniform Commercial Code's obligation of good faith and is expressly provided for as a principle of law which supplements the provisions of Indiana Code section 26-1. Id.

Hammert's argues that the doctrine of promissory estoppel does not apply in this case because there is no promise and no detrimental reliance. We address each of its contentions in turn.

Hammert's first argues that it didn't make any promises. A promise is a voluntary commitment or undertaking by the party making it (the promisor) addressed to another party (the promisee) that the promisor will perform some action or refrain from some action in the future. Kacak, 869 N.E.2d at 1242. Here, we agree with Sterling that the Invoice 2 and 3 verification letters wherein Hammert's confirmed that NSE's work, product or service was complete and accepted and there were no joint check requests, offsets, credits, debits or counterclaims of any kind, and that the job was not subject to any payment bonds, contractors bonds, or other bonded obligations were promises that Hammert's would not assert claims or defenses to reduce the value of the invoices.

As to the second argument that there is no detrimental reliance in this case, our review of the designated material reveals that the verification letters clearly stated that Sterling intended to rely upon the verifications in order to provide financing to NSE. In addition, Small's designated affidavit stated that Sterling relies on the verification letters before purchasing invoices to reduce or eliminate its assumed risk of nonpayment by an account debtor. Having found both a promise and detrimental reliance, we find that promissory estoppel applies in this case and that Ham-mert's is estopped to deny payment on Invoice 3 and place payment restrictions on the payment for Invoice 2.

Although we have found no similar Indiana cases, our result is consistent with similar case law from other jurisdictions. See Quantum Corporate Funding Ltd. v. L.P.G. Associates, Inc., 246 A.D.2d 320, 323, 667 N.Y.S.2d 702 (1998) (holding that account debtor's assurance to factor gives rise to an estoppel predicated upon the factor's reliance on that assurance in purchasing the assignment from the vendor); Dimmitt & Owens Financial. Inc. v. Realtek Industries, 90 Mich.App. 429, 280 N.W.2d 827, 829 (1979) (holding that account debtor that completed verification letter estopped to deny liability).

CONCLUSION

For the foregoing reasons, we reverse the trial court's grant of summary judgment on Sterling's complaint and Ham-mert's counterclaim.

Reversed and remanded with instructions for the trial court to enter summary judgment in favor of Sterling on its complaint as well as Hammert's counterclaim.

NAJAM, J., and MATHIAS, J., concurs.

      . Because we reverse the trial court's summary judgment rulings on the basis of estop-pel, we need not consider Sterling's additional grounds for reversal.


text:
    Glenn HATMAKER, Appellant, v. Betty HATMAKER, Appellee.
    No. 49A05-1305-DR-253.
    Court of Appeals of Indiana.
    Nov. 27, 2013.

      William A. Ramsey, Murphy Ice & Koeneman LLP, Fort Wayne, IN, Attorney for Appellant.
    Deanna A. Dean-Webster, Dean-Webster Wright LLP, Indianapolis, IN, Attorney for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Glenn Hatmaker ("Father") appeals from the deemed denial of a motion to correct error which challenged an order denying his motions for unsupervised parenting time with his child with Betty Hat-maker ("Mother"), and modification of child support. We reverse and remand for further proceedings consistent with this opinion.

Issues

Father presents two issues for review:

I. Whether his parenting time was improperly restricted. or eliminated; and
II. Whether the trial court abused its discretion in its refusal to modify Father's child support obligation.

Facts and Procedural History

Father and Mother were married in 2003 and separated in February of 2010. Father was convicted of committing battery upon Mother and, on November 21, 2011, the parties were divorced. At that time, Father was awarded only supervised visitation with the sole child of the marriage, RH., contingent upon the completion of domestic violence counseling.

Father, who was receiving unemployment compensation of $390 per week, was ordered to pay child support of $85 per week. At that time, Mother was earning $388.60 per week and incurring child care expenses.

Father completed domestic violence counseling and parenting classes. He also submitted to a mental health evaluation but "no mental health care was recommended." (App. 16.) Accordingly, Father was eligible for alternative misdemeanor sentencing. He also exercised parenting time with RH. under the supervision of Kid's Voice.

On January 8, 2013, Father filed a motion requesting unsupervised parenting time, alleging that Kid's Voice "no longer had time available," that RH. was suffering from parental alienation syndrome, and that an order for supervision premised upon Indiana Code section 31-14-14-5 (providing for a presumption of supervision in some domestic violence cases) was not valid more than two years after the crime. (App. 21.) He also averred that his income had decreased by more than 20% since the entry of the existing child support order, and requested a reduction in his obligation.

On February 19, 2013, a hearing was conducted at which both parties testified. Father testified that he worked two days per week at a law firm and typically saw R.H. only about two hours per month because the supervision fees were unaffordable. Mother testified that she was afraid of Father, that he had obtained her address and sent letters, and also visited R.H.'s school and questioned the principal about R.H.'s enrollment. On the same day as the school visit, Mother had called police and an officer had discovered a decapitated rabbit on Mother's doorstep. Mother suspected Father as the source.

On March 4, 2018, the trial court entered an order providing in relevant part:

1. Respondent's motions are denied.
2. Parenting time shall be furnished to Respondent as previously ordered, and may be modified upon agreement of the parties at any time.

(App. 40.) Father filed a motion to correct error, which was deemed denied. This appeal ensued.

Discussion and Decision

I. Restriction of Parenting Time

Father was initially afforded only supervised parenting time through Kids' Voice. Apparently due to lack of funds, Father's parenting time decreased to two hours monthly and, according to Father, Kids' Voice was no longer able or willing to maintain a time slot for him. Father argues that the trial court's refusal to lift the restriction and his inability to pay for supervised sessions if available effectively eliminates his parenting time and that he is entitled to unsupervised time with RH.

"In all visitation controversies, courts are required to give foremost consideration to the best interests of the child." Marlow v. Marlow, 702 N.E.2d 733, 735 (Ind.Ct.App.1998), trans. denied. We review parenting time decisions for an abuse of discretion. Id. A trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and cireumstances before the court or if the court has misinterpreted the law. Sexton v. Sedlak, 946 N.E.2d 1177, 1183 (Ind.Ct.App.2011), trans. denied.

"The right of non-custodial parents to visit with their children is a 'sacred and precious privilege'" Appolon v. Faught, 796 N.E.2d 297, 300 (Ind.Ct.App.2003) (quoting McCauley v. McCauley, 678 N.E.2d 1290, 1292 (Ind.Ct.App.1997), trans. denied ). "Ideally, a child should have a well-founded relationship with each parent." Id. Restriction of parenting time is governed by Indiana Code section 31-17-4-1(a), which provides:

A parent not granted custody of the child is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time by the noncustodial parent might endanger the child's physical health or significantly impair the child's emotional development.

Even though the statute uses the word "might," this Court has previously interpreted the language to mean that a court may not restrict parenting time unless that parenting time "would" endanger the child's physical health or emotional development. D.B. v. M.B.V., 913 N.E.2d 1271, 1274 (Ind.Ct.App.2009). A party who seeks to restrict a parent's visitation rights bears the burden of presenting evidence justifying such a restriction. Id. The burden of proof is by a preponderance of the evidence. In re Paternity of W.C., 952 N.E.2d 810, 816 (Ind.Ct.App.2011). We believe that an order for supervision constitutes such a restriction.

Here, the dissolution decree that limited Father to supervised parenting time included no specific finding of endangerment. It appears that the restriction may have been premised, at least in part, upon Indiana Code section 31-17-2-8.3, providing in relevant part:

(a) This section applies if a court finds that a noneustodial parent has been convicted of a crime involving domestic or family violence that was witnessed or heard by the noncustodial parent's child.
(b) There is created a rebuttable presumption that the court shall order that the noneustodial parent's parenting time with the child must be supervised:
For at least one (1) year and not more than two (2) years immediately following the crime involving domestic or family violence[.]

Alleging that the statutory period had expired and the presumption was no longer operative, Father sought modification of the existing parenting time order. Such modifications are governed by Indiana Code section 31-17-4-2, which provides:

The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent's parenting time rights unless the court finds that the parenting time might endanger the child's physical health or significantly impair the child's emotional development.

Words and phrases within a statute are to be given their plain, ordinary, and usual meaning unless a contrary purpose is clearly shown by the statute itself. Barger v. Pate, 831 N.E.2d 758, 763 (Ind.Ct.App.2005). By its plain language, the statutory presumption of Indiana Code section 31-17-2-8.3 has lapsed. In turn, the language of the modification statute provides that parenting time rights may not be restricted absent a finding by the court that parenting time might endanger the child's health or significantly impair his or her emotional development. We believe supervised visitation constitutes such a restriction.

Here, the trial court heard evidence that Father had obtained Mother's address, sent letters and visited RH.'s school. Mother testified to her fear of Father and her suspicion that he left a decapitated rabbit at her residence. Documentary evidence indicated that Father had completed anger management and parenting classes, participated in a mental health evaluation, and qualified for alternative misdemeanor sentencing for the battery upon Mother.

The trial court made no finding of endangerment. Indeed, the trial court implicitly found that parenting time modification presented no likely danger to RH. as the order provides for modification "upon agreement of the parties at any time." (App. 40). In essence, the order confers upon Mother the prerogative to enforce the supervision restriction at her discretion. The order is erroneous, as it is internally inconsistent and in contravention of statutory authority. Accordingly, we reverse the order denying Father parental access except when supervised or upon agreement of Mother. We remand with instructions to the trial court to either enter an order containing sufficient findings to support a parenting time restriction or enter an order that does not contain such a restriction. See Walker v. Nelson, 911 N.E.2d 124, 130 (Ind.Ct.App.2009).

Because it will likely arise on remand, we address Father's claim that supervision fees are unaffordable in his economic cireumstances, and should be a factor militating toward an order for unsupervised parenting time. The right of parenting time is subordinated to the best interests of the child. Lasater v. Lasater, 809 N.E.2d 380, 401 (Ind.Ct.App.2004). Accordingly, if unsupervised parenting time would pose a danger to a child, the parent is not entitled to dispense with supervision because of the costs associated with supervisory programs. That said, however, our parenting time statutes do not prohibit the trial court from exploring affordable options for low-income parents, such as grandparent, relative, or child advocate volunteer supervision. Moreover, it appears that Mother has much greater earnings than does Father and may be able to contribute to costs of supervision.

II. Modification of Child Support

Indiana Code section 31-16-8-1 provides that child support modification may be made "upon a showing of changed cireumstances so substantial and continuing as to make the terms unreasonable" or where a party has been ordered to pay an amount that differs by more than twenty percent from the child support guideline amount and the existing order was issued at least twelve months prior to the petition for modification. A trial court's decision regarding child support will be upheld absent an abuse of discretion. Sexton, 946 N.E.2d at 1183.

Father contends that the trial court abused its discretion by refusing to modify his child support obligation in the face of uncontroverted evidence that his income had significantly decreased while Mother's had significantly increased. Mother does not dispute that her income has increased while Father's decreased, but argues that Father could not obtain a modification based upon an unsigned child support worksheet. Father then responds that he electronically signed a packet of materials including his economic statement and a child support worksheet, while Mother failed to submit an economic statement. Nevertheless, we need not enter into a debate regarding the sufficiency of Father's purported electronic signature, because a substantial change in cireum-stances is made evident from the parents' testimony under oath, child support worksheets, paycheck stubs, and other documentation.

Mother's signed worksheet indicates that her income had increased from $388.60 weekly to $837 weekly. She no longer incurred child eare expenses, but paid $15 per week in medical and dental insurance premiums for R.H. In addition to his worksheet, Father submitted into evidence a document disclosing that he had exhausted his unemployment benefits. He submitted paycheck stubs from part-time work and testified that he had, two weeks previously, obtained employment paying $128 per week. Mother also submitted into evidence her paycheck stubs.

Based upon this data, the Indiana Child Support Guideline amount of Father's obligation would be $22 weekly. The existing order was for $85 weekly. It is also noteworthy that Father was responsible for paying all costs of supervised parenting time. The trial court's refusal to modify Father's child support is contrary to the facts and cireumstances before it. We therefore reverse the order and remand for a child support order consistent with the Indiana Child Support Guidelines or providing reasons for a deviation.

Because it will likely arise on remand, we address Father's contention that a modification of his child support should be retroactive to the date he filed his petition. Generally, the trial court has the discretionary power to make a modification for child support relate back to the date the petition to modify is filed or any date thereafter chosen by the trial court. Sexton, 946 N.E.2d at 1183. Accordingly, while the trial court may choose to grant Father's request for relation back to the filing date, Father has no statutory entitlement to such.

Conclusion

The order for supervised parenting time, modifiable upon agreement of the parties, is contrary to law. The trial court abused its discretion by refusing to modify Father's child support obligation in the face of uncontroverted evidence that Mother's income had increased substantially while Father's income had decreased substantially.

Reversed and remanded for further proceedings consistent with this opinion.

MAY, J., and BRADFORD, J., concur.

      . The dissolution decree does not explicitly reference the statute or include a factual finding that RH. witnessed or heard domestic violence. However, the dissolution decree referred to Father's arrest and conviction for domestic battery and we presume that the dissolution court was aware of the statute.