author: MATHIAS, Judge. RILEY, Judge,

text:
    Kevin C. O’CONNELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 18A02-1109-CR-889.
    Court of Appeals of Indiana.
    June 5, 2012.
   OPINION

MATHIAS, Judge.

Kevin C. O’Connell (“O’Connell”) was convicted in Delaware Circuit Court of Class C felony attempted escape, Class B misdemeanor disorderly conduct, and Class B misdemeanor public intoxication. O’Connell appeals and argues that the trial court abused its discretion when it refused O’Connell’s tendered jury instructions that inserted the word “voluntary” into the elements of the charged offenses. Concluding that the substance of O’Connell’s tendered instructions were covered by other instructions given by the trial court, we affirm.

Facts and Procedural History

On July 21, 2009, O’Connell was at a gas station in Delaware County. As he entered the store at the station, O’Connell stumbled into a trash can, nearly knocking it over. When he got in line for the cash register, O’Connell again stumbled and nearly knocked over a shelving unit. When he reached the cashier, O’Connell asked the cashier for a lighter. The cashier gave O’Connell a lighter, and O’Connell started smoking a cigarette in the store. The cashier told O’Connell to go outside to smoke the cigarette, but he had to repeat his request multiple times before O’Con-nell complied. O’Connell tried to talk to the cashier, but his words were slurred and did “not mak[e] a whole lot of sense.” Tr. p. 55. Another customer who left the store before O’Connell telephoned the police and reported O’Connell’s behavior.

Once outside, O’Connell sat in the driver’s seat of his car for a while, exclaiming loudly that he was Jesus Christ. He then got back out of his car, stumbled to the entrance of the store, and sat down. As he sat, O’Connell prayed loudly, and again proclaimed that he was the messiah. Albany Police Department Officer Shannon Fritz (“Officer Fritz”) arrived at the scene and observed O’Connell alternating between praying loudly and cursing. Officer Fritz asked O’Connell if there was a problem but “could [not] get much out of him” because his speech was very slurred and erratic. Id. at 60. Officer Fritz also smelled the odor of an alcoholic beverage and noticed that O’Connell had bloodshot eyes and poor balance. Based on these observations, Officer Fritz determined that O’Connell was intoxicated.

Shortly thereafter, Deputy Randy Ogle (“Deputy Ogle”) arrived at the scene and heard O’Connell call Officer Fritz a “boy” and a “piece of sh*t.” Id. at 82. Deputy Ogle also came to the conclusion that O’Connell was intoxicated based on O’Con-nell’s slurred speech, glassy red eyes, poor balance, and the “strong odor of alcohol.” Id. at 88. Deputy Ogle arrested O’Connell and transported him to the Delaware County Jail. On the way to the jail, O’Con-nell initially calmed down. As they approached the jail, however, he began to curse Deputy Ogle, calling him too a “piece of sh*t.” Id. at 89.

When Deputy Ogle began booking O’Connell at the jail, O’Connell collapsed onto the ground and began to “growl,” make funny noises, and pray. Id. at 90. At one point, O’Connell became “totally still” and would not talk to the jailers. Id. Because O’Connell was unresponsive, the jail called medical personnel to transport him to the hospital. When the medical personnel strapped O’Connell to the gurney, he woke up and began to yell and scream again. He alternated between asking for help and cursing, but had returned to uttering “gibberish” and mumbling by the time he reached the hospital. Id. at 106.

At the hospital, a doctor and a nurse examined O’Connell. Deputy Ogle sat by his bed and at one point, as O’Connell was exhibiting erratic behaviors, Deputy Ogle told him, “I don’t care what you do or say[,] you’re not going [to] get out of going to jail.” Id. at 93. O’Connell continued to babble for a while, but then stopped, looked at Deputy Ogle, and stated in a “plain, clear voice,” “I’m a member of the Irish Republican Army. I’m going to burn your house down, or I’m going to burn you down. Me and my people are going to come and burn you down[.]” Id.

When the hospital released O’Connell, Deputy Ogle prepared to return him to the jail by placing him in handcuffs and leg shackles and sitting him in the passenger seat of his patrol car. When Deputy Ogle approached the jail in his patrol car, O’Connell was alert but quiet. When they arrived at the jail, Deputy Ogle exited his vehicle and began placing his weapon into the lockbox on the wall of the garage. As he did so, he heard a “click,” and turned to see that O’Connell had opened the passenger door of the car and was quickly running towards the garage door, which had started to close behind the car after its entrance. Despite being in handcuffs and shackles, O’Connell moved quite quickly. Deputy Ogle ran after O’Connell and administered a “palm strike” to his upper chest, which knocked O’Connell over and prevented him from escaping. Id. at 98.

On July 28, 2009, the State charged O’Connell with Class C felony attempted escape, Class B misdemeanor disorderly conduct, and Class B misdemeanor public intoxication. On July 29, 2011, a jury trial was held. At trial, O’Connell’s wife, Bonnie O’Connell (“Bonnie”), testified that O’Connell had suffered a “really bad seizure” the morning of his arrest. Id. at 136. According to Bonnie, she had woken up that morning and found O’Connell thrashing around and, in an attempt to speak, making a noise that was like a whine or a growl. Bonnie then called an ambulance, which transported O’Connell to the hospital. O’Connell and Bonnie stayed at the hospital for several hours before O’Connell was released. After his release, they returned home and Bonnie left for work. When she left, O’Connell was on the couch and was very pale and quiet.

O’Connell testified on his own behalf and also claimed to have suffered from a seizure earlier on the day of his arrest. O’Connell claimed that he had no memory of that day’s events after his morning seizure. He also claimed not to have consumed any alcohol that day. In fact, he stated that drinking alcohol in conjunction with his medications could be fatal. He further claimed that he had not had an alcoholic beverage for twenty years.

Based on Bonnie’s testimony and his own testimony indicating that he had suffered from a seizure on the morning of his arrest, O’Connell tendered proposed jury instructions concerning the voluntariness of his conduct. His first proposed instruction contained a definition of “voluntary” taken from case law, and the second contained the statutory language regarding the requirement of voluntary conduct. The other three proposed instructions contained the statutory elements of each offense but modified the elements to insert an additional element of voluntariness. The trial court gave the jury an instruction that set forth the statutory language regarding the requirement of voluntary conduct but refused to issue O’Connell’s other tendered instructions.

At the conclusion of the trial, the jury found O’Connell guilty as charged. On September 7, 2011, the trial court sentenced O’Connell to two years on the attempted escape conviction, with all but the ninety days O’Connell had already served suspended to probation. The trial court also sentenced O’Connell to concurrent terms of six months on both misdemeanor convictions, with each sentence to suspended to probation. O’Connell now appeals.

Discussion and Decision

O’Connell’s sole claim on appeal is that the trial court abused its discretion by refusing to give to the jury his tendered instructions. Our standard of review upon claims of instructional error is well settled:

The purpose of jury instructions is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict. In reviewing a trial court’s decision to give a tendered jury instruction, we consider (1) whether the instruction correctly states the law, (2) is supported by the evidence in the record, and (3) is not covered in substance by other instructions. The trial court has discretion in instructing the jury, and we will reverse only when the instructions amount to an abuse of discretion. To constitute an abuse of discretion, the instructions given must be erroneous, and the instructions taken as a whole must misstate the law or otherwise mislead the jury. We will consider jury instructions as a whole and in reference to each other, not in isolation.

Munford, v. State, 923 N.E.2d 11, 14 (Ind.Ct.App.2010).

O’Connell tendered instructions regarding voluntariness. Indiana Code section 35-41-2-l(a) provides in pertinent part that “[a] person commits an offense only if he voluntarily engages in conduct in violation of the statute defining the offense.” This section was discussed by our supreme court in McClain v. State, 678 N.E.2d 104, 107 (Ind.1997), wherein the court wrote:

Before 1976, Indiana’s criminal code lacked basic provisions governing culpability. The voluntary act statute was adopted that year in a new section titled “Basis of Liability,” which also included mens rea definitions of “intentionally,” “knowingly” and “recklessly” — terms now in familiar use in criminal cases. The voluntary act statute codified the axiom that voluntariness is a general element of criminal behavior and reflected the premise that criminal responsibility postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.... The term voluntary is used in this Code as meaning behavior that is produced by an act of choice and is capable of being controlled by a human being who is in a conscious state of mind.

(citations and internal quotations omitted).

Once evidence in the record raises the issue of voluntariness, the State must prove beyond a reasonable doubt that the defendant acted voluntarily. Id. (citing Baird v. State, 604 N.E.2d 1170, 1176 (Ind.1992)). If the State fails to prove that a defendant’s conduct was voluntary, it has not proved every element of the offense. See id. But see Davidson v. State, 849 N.E.2d 591, 593 (Ind.2006) (concluding that defendant was not entitled to volun-tariness instruction because his conduct was covered under statutes governing defense of intoxication, not voluntariness, but suggesting that voluntariness is not an element). In Davidson, our supreme court noted:

The drafters of Indiana’s voluntariness provision used section 2.01 of the Model Penal Code as the source. The American Law Institute report on the provision indicates that its purpose is to exclude from voluntary conduct those mental impairments that are the product of an otherwise healthy mind. The illustrative examples are reflexes, convulsions, unconsciousness (for example, a driver who loses consciousness and runs over a pedestrian), somnambulism, hypnosis, and a residual category for movements not a product of the actor’s effort (where the actor is moved by force). Because the Model Penal Code’s list of such conditions was not imported into our Code, we have recognized that certain conditions not included in the ALI model can be covered under the Indiana statute.

849 N.E.2d at 594 (citations omitted); see also Marley v. State, 747 N.E.2d 1123, 1128 (Ind.2001) (‘‘McClain staked out a small area of mental states, e.g., sleepwalking, epilepsy, and metabolic disorders, that are not attributable to any mental disease or defect but nevertheless negate the voluntariness requirement”). With this understanding of the voluntariness statute, we turn to the question of whether the trial court should have given O’Con-nell’s tendered instructions.

The first portion of our analysis is whether the tendered instructions were a correct statement of the law. Munford, 923 N.E.2d at 14. As explained above, O’Connell’s tendered instructions set forth the statutory elements of each of the offenses he was charged with: escape, disorderly conduct, and public intoxication. But in addition to the statutory mens rea requirements, O’Connell’s tendered instructions inserted the word “voluntarily.” Appellant’s App. p. 70. O’Connell also tendered an instruction that read, “A person commits an offense only if he voluntarily engages in conduct in violation of the statute defining the offense.” Id. at 67 (citing I.C. § 35-41-2-1). The trial court gave the jury only this last instruction tracking the language of Indiana Code section 35-41-2-1 and rejected O’Connell’s other tendered instructions.

O’Connell notes that the instructions he tendered were taken from the pattern jury instructions, a claim the State does not deny. See also Davidson, 849 N.E.2d at 593 (noting that Indiana Pattern Jury Instructions insert the phrase “and voluntarily” into the elements of a crime when the evidence raises a voluntariness issue). And this pattern jury instruction finds support in the case law. See id. (noting that the pattern jury instruction is based on the holding in Baird, 604 N.E.2d at 1176). We therefore disagree with the State that O’Connell’s tendered instructions were an incorrect statement of the law.

But simply because the instructions were a correct statement of the law does not mean that the trial court committed reversible error by refusing to give the tendered instructions. Even if an instruction is a correct statement of the law and finds some support in the evidence, a trial court may still in its discretion refuse a tendered instruction if it is covered in substance by other instructions. Munford, 923 N.E.2d at 14.

Here, even though the trial court refused O’Connell’s tendered instructions inserting the word “voluntary” into the elements of the crime, it did instruct the jury that “[a] person commits an offense only if he voluntarily engages in conduct in violation of the statute defining the offense.” Appellant’s App. p. 67 (citing I.C. § 35-41-2-1). The trial court also instructed the jury on the statutory elements of each charged offense and the definitions of the mens rea requirement of each' of these offenses. And the jury was repeatedly instructed that the State bore the burden of proving that O’Connell was guilty beyond a reasonable doubt. We therefore conclude that, considered as a whole, the trial court’s instructions adequately informed the jury that, in order to find O’Connell guilty, the State had to prove beyond a reasonable doubt that he voluntarily engaged in the conduct alleged by the State.

We find support for our conclusion in Sanders v. State, 466 N.E.2d 424 (Ind. 1984). In that case, Sanders was convicted of armed robbery. At trial, Sanders testified that another individual had ordered him to commit the robbery and stayed out of sight while pointing a gun at the defendant in order to force him to commit the robbery. Id. at 427. On appeal, Sanders claimed that the trial court erred in refusing his tendered instruction relating to his defense of voluntariness, which recited the voluntariness statute. Id. Our supreme court held that Sanders was not entitled to the instruction because he was not entitled to an involuntariness defense. Id. Still, the court went on to address the “general application” of Sanders’s tendered voluntariness instruction and concluded that its substance was covered by other instructions that the trial court did give. Id. Specifically, the court noted that the jury had been instructed that the robbery statute required that the taking of another’s property must be done “knowingly or intentionally.” Id. (quoting Ind.Code § 35-42-5-1). The trial court also gave instructions defining the State’s burden of proof and explaining that the State had to establish all elements of the charged crime. Thus, the Sanders court concluded that these instructions “covered the substance” of the tendered voluntariness instruction. Id. at 428-29.

In the present case, the trial court instructed the jury with regard to the elements of the crimes, including the respective mens rea requirements, the State’s burden of proof, and that all the elements must be proved. According to Sanders, this alone would be sufficient. But here, the trial court went even further and instructed the jury that “[a] person commits an offense only if he voluntarily engages in conduct in violation of the statute defining the offense.” Appellant’s App. p. 67. This instruction, in conjunction with the instructions explaining the statutory elements of the charged offenses and the State’s burden of proof, adequately informed the jury that, in order to find O’Connell guilty, the State had to prove beyond a reasonable doubt that he voluntarily engaged in the conduct alleged by the State.

The dissent criticizes our citation to Sanders, and concludes that the law on voluntariness has evolved since Sanders so as to require that the trial court “directly instruct the jury that once the evidence raises the issue of voluntary conduct, the State must prove that the defendant’s actions were voluntary beyond a reasonable doubt.” Op., infra, at 177 (emphasis added). This would mean that, when volun-tariness is raised, a trial court must give the jury any instruction that directly inserts the word “voluntarily” into the elements of the crime. The effect of this would be that only the pattern jury instruction, or one substantially similar to it, could properly be given whenever the issue of voluntariness was raised by the evidence. While we agree that the better practice would be to use the pattern jury instruction, our standard of review does not require it. To say that the trial court’s rejection of O’Connell’s tendered instructions constitutes an abuse of discretion fails to consider the adequacy of the jury instructions as a whole and in reference to each other, not in isolation. See Munford, 928 N.E.2d at 14.

In the case before us, it is not disposi-tive that no instruction directly explained to the jury that the State was required to prove beyond a reasonable doubt that O’Connell’s criminal conduct was voluntary. The trial court’s instructions informed the jury (1) that the State was required to prove that O’Connell was guilty beyond a reasonable doubt and (2) also instructed that he could be convicted only if he voluntarily engaged in the conduct in violation of the statute defining the offenses. These instructions, considered as a whole, in reference to each other and not in isolation, adequately explained to the jury the State’s burden of proving that O’Connell’s actions were voluntary. Simply put, the instructions as a whole did not misstate the law or otherwise mislead the jury. See Hurt v. State, 570 N.E.2d 16, 18 (Ind.1991) (holding that there was no error where one instruction did not inform the jury that, in order to convict defendant of attempted murder, the evidence must show that defendant had a specific intent to commit murder but where subsequent instruction did inform jury of this requirement and concluding that the instructions, when read as a whole, adequately informed the jury of the requirement of specific intent to kill).

Under these facts and circumstances, the trial court did not abuse its discretion in refusing to give O’Connell’s tendered instructions.

Affirmed.

FRIEDLANDER, J., concurs.

RILEY, J., dissents with opinion.

RILEY, Judge,

dissenting.

I respectfully disagree with the majority’s conclusion that the trial court’s tendered jury instructions as a whole covered the substance of O’Connell’s proposed instructions. The majority concludes that it was sufficient that the trial court instructed the jury that “[a] person commits an offense only if he voluntarily engages in conduct in violation of the statute defining the offense” and also instructed the jury regarding the mens rea requirement for each of O’Connell’s charged offenses. (Appellant’s App. p. 67). In support of this conclusion, the majority cites Sanders, a 1984 case in which our supreme court stated that Sanders’ proposed jury instruction on voluntary conduct was covered by the tendered instructions as a whole. Sanders v. State, 466 N.E.2d 424, 428 (Ind.1984). The supreme court reasoned that it was sufficient that the trial court’s final instructions included the robbery statute, which provided that the taking of another’s property had to be done “knowingly or intentionally,” and that the trial court also gave the jury instructions regarding the State’s burden of proof and the fact that the State had to prove all elements of the described crime. Id.

However, as dicta, this analysis was not binding on either the supreme court or our court, and I find that the supreme court’s analysis has expanded since Sanders. In Baird v. State, 604 N.E.2d 1170, 1176 (Ind. 1992), cert. denied, 510 U.S. 893, 114 S.Ct. 255, 126 L.Ed.2d 208 (1993), the supreme court held that “once evidence in the record raises the issue of voluntariness, the [Sjtate must prove the defendant acted voluntarily beyond a reasonable doubt.” The significance of this holding is apparent in the Indiana Judge’s Association’s decision to amend the Indiana Pattern Jury Instructions as a result of Baird to emphasize that, once the issue is raised, the State must prove voluntariness beyond a reasonable doubt. See Davidson v. State, 849 N.E.2d 591 (Ind.2006). While the supreme court has never officially approved the Indiana Pattern Jury Instructions, we have previously noted that the preferred practice is to use the pattern jury instructions and that the instructions have the “apparent approval of the Indiana Supreme Court as evidenced by the preferred treatment given such instructions in [Indiana Rule of Trial Procedure 51(E) ].” Gravens v. State, 836 N.E.2d 490, 493 (Ind.Ct.App.2005), trans. denied.

Baird’s effect on the pattern jury instructions is especially relevant to the instant case. A pre-Baird version of Pattern Jury Instruction § 9.01 regarding voluntary conduct stated that:

Voluntary conduct is defined by statute as follows:
A person commits an offense only if he voluntarily engages in violation of the statute defining the offense. However, a person who omits to perform an act commits an offense only if he has a statutory, common law or contractual duty to perform the act.

INDIANA PATTERN JURY INSTRUCTIONS § 9.01 (1980). Significantly, this instruction is similar to the one tendered by the trial court here because it merely reiterates the statutory provision that a person only commits an offense if his actions are voluntary. See I.C. § 35-41-2-1(a). It does not mention the State’s “beyond a reasonable doubt” burden of proof. In contrast, as a result of Baird, Pattern Jury Instruction § 9.01 currently provides that:

[When evidence raises an issue of vol-untariness, modify the instruction defining the offense by adding the italicized material shown in the example below:]
The crime of theft is defined by statute as follows:
A person who knowingly or intentionally [and voluntarily ] exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a Class D felony.
Before you may convict the Defendant, the State must have proved each of the following elements beyond a reasonable doubt:
1. The Defendant
2. knowingly or intentionally
3. [and voluntarily ]
4. exerted unauthorized control over property of [name ], another person
5. with intent to deprive [name the other person ] of any part of the property’s value or use.
If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of theft, a Class D felony, charged in Count.

INDIANA PATTERN JURY INSTRUCTIONS § 9.01 (3rd ed. 11/2004). This version of § 9.01 explicitly emphasizes that the State must prove “voluntariness” beyond a reasonable doubt.

In 2006, the supreme court implicitly approved the current version of Instruction § 9.01 in Davidson. There, Davidson tendered a proposed jury instruction including “and voluntarily” as an element of his offense. Davidson, 849 N.E.2d at 593. Davidson argued that the inclusion of “and voluntarily” in the elements ensured that the jury knew that the State was required to prove that he acted voluntarily beyond a reasonable doubt. Id. In response, the supreme court concluded that “[t]he real problem with this contention is that the condition that underlay Davidson’s defense is covered by our Indiana Code section on intoxication and not by the section on vol-untariness.” Id. at 594. Thus, the supreme court did not dispute that it was proper to add voluntariness as an element in a jury instruction; it merely decided the case on other grounds. See id.

In light of the foregoing, I conclude that the supreme court’s analysis has evolved since Sanders with the effect that an adequate jury instruction must now directly instruct the jury that once the evidence raises the issue of voluntary conduct, the State must prove that the defendant’s actions were voluntary beyond a reasonable doubt. The trial court’s Jury Instruction No. 6 does not do so. Instead, its language mirrors the substance of the language of the pre-Baird version of Pattern Jury Instruction § 9.01. As the amendment to § 9.01 and the supreme court in Davidson implied, this language is no longer adequate; nor did any of the trial court’s other tendered jury instructions instruct the jury that the State had the burden of proving that O’Connell’s actions were voluntary beyond a reasonable doubt. Thus, I conclude that the trial court’s tendered jury instructions as a whole did not sufficiently cover the substance of O’Con-nell’s proposed jury instructions.

As the majority found that O’Connell’s proposed instructions were covered in substance by the tendered instructions, the majority did not address the remaining two factors that we must consider when determining whether the trial court has abused its discretion in instructing the jury: (1) whether the proposed instructions correctly stated the law and (2) were supported by the evidence in the record. Alfrey v. State, 960 N.E.2d 229, 232 (Ind.Ct.App.2012). Because I do not find that O’Connell’s proposed instructions were covered in substance by the trial court’s tendered instructions, I will address these remaining two factors.

With respect to the first factor, the State asserts that O’Connell misstated the law by inserting voluntariness as an element of his charged offenses. As I stated previously, Indiana Pattern Jury Instruction § 9.01 clearly included voluntariness as an element of theft, even though volun-tariness is not a statutory element of theft. See I.C. § 35-43-4-2. While this instruction used theft as an example, rather than disorderly conduct or escape, I conclude that its placement in the “voluntary conduct” chapter indicates that it is meant to be a guide for instructions on voluntary conduct with respect to all relevant offenses, not just theft. See INDIANA PATTERN JURY INSTRUCTIONS § 9.01 (3rd ed. 11/2004). In addition, as stated above, the supreme court indirectly implied in Davidson that it is proper to add voluntariness as an element in a jury instruction. Davidson, 849 N.E.2d at 593-94.

Further, I find that the evidence in the record raised the issue of whether O’Con-nell’s conduct was voluntary. Bonnie testified that during his seizure, O’Connell “was thrashing around on the floor and trying to talk and could [not] talk,” but was making noises like a whining or a growl. (Tr. p. 136). Officer Fritz and Deputy Ogle later used the term “growl” to describe O’Connell’s noises and also indicated that at points O’Connell made er-ratio movements and could not talk. (Tr. p. 90). Bonnie also testified that during seizures O’Connell tended to get “agitated and hateful” and had poor balance, which mirrors the behaviors that Officer Fritz and Deputy Ogle later described. When O’Connell testified, he told the court that he could not remember anything after his release from Ball Memorial Hospital in the morning. This evidence raises the issue of whether his actions were involuntary due to seizures.

In sum, I conclude that the trial court abused its discretion in denying O’Con-nell’s proposed instructions.

      . O'Connell also tendered an instruction that read, "[t]he term voluntary is defined as meaning behavior that is produced by an act of choice and is capable of being controlled by a human being who is in a conscious state of mind.” Id. at 66 (citing McClain, 678 N.E.2d at 107). O’Connell makes no cognizable argument regarding the trial court’s rejection of this instruction and instead focuses his argument on the tendered instructions which inserted the word "voluntarily” into the elements of the charged offenses.

      . Even if we were to agree that there was some evidence that, if credited, might indicate that O'Connell's initial behavior at the store was involuntary, there is no evidence indicating that his act of running away from Deputy Ogle’s police car and attempting to flee out the garage was involuntary. In fact, the description of O'Connell’s behavior during his earlier alleged seizure was entirely inconsistent with his act of fleeing from Deputy Ogle. Thus, with regard to the escape conviction— the most serious of O’Connell's convictions— there was no evidentiary support for the tendered voluntariness instruction.

      . The court had already concluded that Sanders was not entitled to an involuntariness defense and that the proper defense was instead that of duress. Id. at 428.


source: Caselaw Access Project

author: BAILEY, Judge.

license: Public Domain

text:
    Alan Patrick McENTEE, Appellant-Defendant, v. WELLS FARGO BANK, N.A., Appellee-Plaintiff.
    No. 75A03-1106-MF-277.
    Court of Appeals of Indiana.
    June 19, 2012.
   OPINION

BAILEY, Judge.

Case Summary

Alan Patrick McEntee (“McEntee”), pro se, appeals from the denial of his motion to correct error, which challenged the trial court’s entry of summary judgment, which granted Wells Fargo Bank N.A.’s (“Wells Fargo”) foreclosure claim and denied McEntee’s counterclaim for damages.

We reverse and remand for further proceedings.

Issue

McEntee presents several issues for our review, which we reframe as whether the trial court abused its discretion when it denied McEntee’s motion to correct error requesting the trial court to set aside its entry of summary judgment in favor of Wells Fargo and against him.

Facts and Procedural History

On August 4, 2003, McEntee borrowed $78,000 from USB Home Lending, a Division of Universal Savings Bank, F.A. (“USB Home Lending”). The note for the loan required that McEntee make monthly payments of $467.43. (Appellee’s App. at 29.) The loan was secured by a mortgage, which McEntee executed on August 4, 2003. At some point prior to the relevant events of this case, Wells Fargo became the servicer on the loan for USB Home Lending.

At some point, McEntee submitted a check to Wells Fargo for his January 2009 mortgage payment. The check was postdated to the payment due date, but Wells Fargo negotiated the check before that date. While it does not appear that McEntee’s check was returned for insufficient funds, payment of the check resulted in checking account overdraft fees to McEntee of $112.50.

McEntee engaged in efforts to obtain compensation from Wells Fargo for the overdraft fees. This appears to have escalated into a dispute over the proper place for McEntee to make payments; whether certain payments were made late; and whether McEntee could deduct amounts for the overdraft fees, mileage to deliver a payment to a Wells Fargo bank branch, and a “premature check cashing” fee. Appellant’s App. at 5.

On June 10, 2009, McEntee sent a letter to Mark Oman, then an executive for Wells Fargo in Des Moines, Iowa, that included two checks to Wells Fargo for McEntee’s May 2009 and July 2009 mortgage payments. From the July 2009 payment, which was to total $664.98, McEntee deducted his claimed expenses for travel ($11.50), overdraft fees ($112.50), and the overdraft fee associated with “premature check cashing” ($22.87). Thus, McEntee’s check for his July 2009 payment was $518.11, which he postdated to July 1, 2009.

By September 2009, McEntee’s dispute with Wells Fargo remained unresolved. Thus, on September 23, 2009, McEntee sent a letter to Ben Windust, another executive for Wells Fargo. Stating that “[tjhere has been no reply to date regarding the problems,” McEntee submitted with the letter a check for his October 2009 payment in the amount of $700.00, which he specified was to cover the $664.98 monthly payment and additional principal of $35.02 “plus $0.02 from previous month not allocated.” Appellant’s App. at 7. The check was postdated to October 1, 2009, and McEntee indicated that he would assess a $ 100.00 fee “deductible from a future payment” if Wells Fargo “[p]rema-ture[ly] deposit[ed]” the check. Appellant’s App. at 7.

McEntee’s relationship with Wells Fargo continued to deteriorate. Eventually, Wells Fargo returned two of McEntee’s checks (for the July 2009 and January 2010 payments) and informed McEntee that it planned to foreclose on the mortgage. On April 27, 2010, USB Home Lending assigned its interest in the mortgage and conveyed the promissory note for the loan to Wells Fargo.

On May 13, 2010, Wells Fargo filed its Complaint to Foreclose Mortgage against McEntee.

On June 7, 2010, McEntee answered the complaint, denying Wells Fargo’s allegation that he had defaulted on the loan. McEntee also asserted several counterclaims. McEntee alleged that Wells Fargo failed to apply properly his payments, and requested damages “for all costs associated with this suit, plus all money not properly attributed by the Plaintiff.” Ap-pellee’s App. at 35. McEntee also asserted a counterclaim for $78,000 “for emotional pain and suffering and all ancillary costs,” claiming that Wells Fargo “has used its size and power in an effort to intimidate [McEntee] to accept extra costs that are not his responsibility.” Appellee’s App. at 35. McEntee’s answer and counterclaims were accompanied by a “Defense History” that set forth an alleged timeline of events. These included McEntee’s recounting of the payment history and Wells Fargo’s refusal to recognize certain payments as having been made, and McEn-tee’s claim that Wells Fargo in August 2009 sent him a check for $125.00 to cover his overdraft fees.

On June 10, 2010, Wells Fargo answered and moved to dismiss McEntee’s counterclaims.

On January 21, 2011, Wells Fargo filed its motion for summary judgment against McEntee as to its complaint and McEn-tee’s counterclaims. On February 2, 2011, McEntee filed his response to Wells Fargo’s motion for summary judgment.

The trial court conducted a hearing on Wells Fargo’s motion for summary judgment on April 25, 2011. On April 26, 2011, the trial court entered summary judgment in favor of Wells Fargo and against McEn-tee on Wells Fargo’s complaint for foreclosure and McEntee’s counterclaims.

On May 20, 2011, McEntee filed his motion to correct error, subtitled as a motion to reconsider. Wells Fargo filed its response to the motion on May 31, 2011. The trial court denied McEntee’s motion to correct error on June 10, 2011.

This appeal followed.

Discussion and Decision

Standard of Review

McEntee appeals from the trial court’s denial of his motion to correct error. Our standard of review in such cases is well established. We review a trial court’s ruling on a motion to correct error for an abuse of discretion. Town of Plainfield v. Paden Eng’g Co., 943 N.E.2d 904, 908 (Ind.Ct.App.2011), trans. denied. An abuse of discretion occurs when the trial court’s decision is contrary to the logic and effects of the facts and circumstances before it or the reasonable inferences there from. Carter-McMahon v. McMahon, 815 N.E.2d 170,174 (Ind.Ct.App.2004).

Here, the motion to correct error sought to set aside the entry of summary judgment. We review a trial court’s entry of summary judgment under the same standard as the trial court. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009). Summary judgment is appropriate only where “the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). We construe all evidence in favor of the party opposing summary judgment, and we resolve all doubts as to the existence of a material issue against the moving party. Town of Plainfield, 943 N.E.2d at 908.

At summary judgment, “[t]he 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.” Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind.2009). Once the moving party has carried its 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.” Id. That is, there is no burden to produce evidence upon the non-movant until the moving party has established, based upon its own designated evidentiary matter, that it is entitled to summary judgment. See Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind.1994) (holding that Indiana does not apply the federal summary judgment procedure as announced in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and requiring that a moving party “support [its] motion for summary judgment with ... designated evidence to establish the absence of a question of fact on an outcome-determinative issue”).

A trial court’s entry of summary judgment “arrives on appeal ‘clothed with a presumption of validity,’ ” and thus the party challenging summary judgment must bear the burden of proving that the movant was not entitled to summary judgment. Williams, 914 N.E.2d at 762 (quoting Rosi v. Bus. Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993)). We will affirm a trial court’s entry of summary judgment if the judgment can be sustained on any theory or basis in the record. Town of Plainfield, 943 N.E.2d at 908. We review a decision on summary judgment carefully, however, to ensure that a party was not properly denied his day in court. Haire v. Parker, 957 N.E.2d 190, 195 (Ind. Ct.App.2011), trans. denied. The trial court’s findings and conclusions upon entry of summary judgment are not binding upon our review, though they “offer valuable insight into the trial court’s rationale for its review and thus facilitate appellate review.” Raisor v. Jimmie’s Raceway Pub, Inc., 946 N.E.2d 72, 75 (Ind.Ct.App.2011).

Summary Judgment on Wells Fargo’s Claim for Foreclosure

We turn first to McEntee’s contention that Wells Fargo was not entitled to summary judgment on its complaint for foreclosure of the mortgage.

The Indiana Code provides, “if a mortgagor defaults in the performance of any condition contained in a mortgage, the mortgagee or the mortgagee’s assign may proceed in the circuit court of the county where the real estate is located to foreclose the equity of redemption contained in the mortgage.” Ind.Code § 32-30-10-3(a). To establish a prima facie case that it is entitled to foreclose upon the mortgage, the mortgagee or its assign must enter into evidence the demand note and the mortgage, and must prove the mortgagor’s default. Id.; Creech v. LaPorte Prod. Credit Ass’n, 419 N.E.2d 1008, 1012 (Ind.Ct.App.1981). Once the mortgagee establishes its prima facie case, the burden shifts to the mortgagor to show that the note has been paid in full or to establish any other defenses to the foreclosure. See Creech, 419 N.E.2d at 1012.

Here, the mortgage and note provided that McEntee would pay installments of $467.43, plus escrow-related costs, on the first day of each month, beginning on September 1, 2003, and running through August 1, 2033. Even a single untimely payment could constitute default. The provisions of the mortgage and note included a non-waiver clause that provided, “[e]ven if, at a time when I am in default, the Note Holder does not require me to pay immediately in full ... the Note Holder will still have the right to do so if I am in default at a later time.” (Appel-lee’s App. at 30.)

At summary judgment, Wells Fargo submitted as designated evidence the note McEntee signed, the mortgage agreement, and an affidavit from Brian Von Bergen (“Von Bergen”), Vice President of Wells Fargo Bank. The affidavit stated the then-outstanding principal amount on the note as well as other fees, and averred that McEntee was in default under the terms of the note and mortgage.

Wells Fargo contends that McEntee admitted default both before the trial court and in his brief to this court. As we understand his argument, McEntee argues in his brief that if the mortgage was in default, the default was a result of Wells Fargo’s conduct. Specifically, McEntee argues that Wells Fargo improperly deposited postdated checks before the monthly due date for each payment date, failed to apply payments properly, and refused tender of properly made payments. In his response to Wells Fargo’s motion for summary judgment, McEntee designated as exhibits several letters he sent to Wells Fargo regarding his payment disputes. That is, McEntee does not admit default in his performance of any condition of the note, as our statutes require before a mortgagee may foreclose upon a mortgage. See I.C. § 32-30-10-3(a). Rather, McEntee asserted as a defense to the foreclosure that Wells Fargo improperly handled his payments on the note, and he designated evidentiary materials in support of this position.

Wells Fargo demonstrated, as Creech requires, that it was the holder of the note.

Wells Fargo did not establish, however, that McEntee had defaulted on his obligations under the note. “Conclusory statements are generally disregarded in determining whether to grant or deny a motion for summary judgment.” LaCava v. LaCava, 907 N.E.2d 154, 166 (Ind.Ct.App.2009) (citing Paramo v. Edwards, 563 N.E.2d 595, 600 (Ind.1990)). Wells Fargo’s designated materials are inadequate to the task of supporting its motion for summary judgment. The designated materials establish the balance on the loan and additional costs Wells Fargo incurred as a result of the claimed default. But the only evidence of McEntee’s default — that is, the only evidence designated by Wells Fargo that establishes McEntee’s failure to comply with the terms of the note and mortgage — is the conclusory averment in Von Bergen’s affidavit that “[ajccording to [Wells Fargo’s] records, the Mortgagors are in default and that said default has not been cured.” (Appellee’s App. at 58.)

This conclusory statement is not enough. The designated materials reflect only Wells Fargo’s opinion based upon its un-designated records that McEntee was in default. Thus, Wells Fargo did not establish the absence of a genuine issue of material fact regarding its contention that McEntee had defaulted on the note, nor did it establish a prima facie case that it was entitled to foreclose on the mortgage.

While Wells Fargo’s designated materials were insufficient to shift the burden to establish a genuine issue of material fact onto McEntee, he nevertheless responded to Wells Fargo’s motion for summary judgment with his own designated materials. Among these were copies of letters McEntee had sent to various officers of Wells Fargo. The letters set forth various disputes McEntee had regarding Wells Fargo’s handling of his payments, and indicate that he intended to deduct certain amounts from one or more payments on the loan. It is unclear, however, whether McEntee did withhold such amounts, as neither party designated such materials as cancelled checks or balance statements that could establish whether McEntee failed to make appropriate payments on or before the proper payment date each month.

Taking the designated materials together, and drawing all inferences in favor of McEntee as the non-movant, the designated evidentiary materials submitted by the parties at summary judgment do not establish that McEntee defaulted in his performance under the note, but rather that he and Wells Fargo were engaged in an ongoing payment dispute. Thus, we cannot conclude that the trial court properly granted summary judgment in favor of Wells Fargo on its foreclosure complaint. We therefore reverse the trial court’s entry of summary judgment on this point.

Summary Judgment on McEntee’s Counterclaims

We turn now to the trial court’s entry of summary judgment in favor of Wells Fargo on McEntee’s counterclaims. We think this decision was in error.

McEntee’s counterclaims stated:

The Defendant counterclaims for damages for all costs associated with this suit, plus all money not properly attributed by the Plaintiff in an amount to be determined by the court at trial; plus interest on amounts received by the Plaintiff and not credited to the Defendant.
The Defendant also counterclaims in the amount of $73,000 for emotional pain and suffering and all ancillary costs, enumerated or not at this point. The plaintiff has used its size and power in an effort to intimidate the Defendant to accept extra costs that are not his responsibility. Their vindictiveness is irresponsible and unconscionable.

(Appellee’s App. at 35.)

In its motion for summary judgment, Wells Fargo sought entry of summary judgment on both its foreclosure claim and McEntee’s counterclaims. While Wells Fargo designated some materials in support of the motion, it submitted no materials pertinent to either of McEntee’s counterclaims. The trial court granted Wells Fargo’s motion for summary judgment on the counterclaims.

This was error. One of McEntee’s counterclaims related to the misapplication of his payments is less a claim for relief than it is an affirmative defense alleging that Wells Fargo improperly handled his payments on the note. See T.R. 8(F) (providing that “pleadings shall be construed so as to do substantial justice, lead to disposition on the merits, and avoid litigation of procedural points”); also Williams v. State, 892 N.E.2d 666, 670 (Ind.Ct.App.2008) (construing as an appeal for denial of a motion for involuntary dismissal under Trial Rule 41(B) an argument the appellant characterized as challenging the sufficiency of evidence as on appeal), trans. denied. Wells Fargo’s designated eviden-tiary materials do not establish that McEntee failed to pay the amounts due on the note. While McEntee designated materials that give rise to an inference that a payment dispute existed between him and Wells Fargo and made pertinent arguments to that effect in his briefs, Wells Fargo designated no evidence to show the lack of a genuine issue of material fact. Thus, the materials before the trial court established a genuine issue of material fact as to McEntee’s defense concerning Wells Fargo’s handling of McEntee’s payments, and Wells Fargo was therefore not entitled to summary judgment on this matter.

Moreover, Wells Fargo submitted neither evidence nor argument concerning McEntee’s allegation that its vindictive and irresponsible conduct gave rise to emotional pain and suffering. “A party responding to a motion for summary judgment is entitled to take the motion as the moving party frames it.” Reiswerg v. Statom, 926 N.E.2d 26, 80-31 (Ind.2010). Wells Fargo argued that depositing McEn-tee’s postdated checks was not a basis for recovery, that it was entitled to foreclosure under the terms of the note and mortgage, and moved for entry of summary judgment on its claims and those of McEntee. Yet Wells Fargo designated no evidentiary materials to support its motion for summary judgment on the counterclaim. McEntee’s counterclaim for emotional pain and suffering was therefore not properly before the trial court for disposition on summary judgment, and the court erred when it entered summary judgment against McEntee on this claim.

Conclusion

The trial court erroneously entered summary judgment in favor of Wells Fargo on its foreclosure claim because Wells Fargo failed to establish that there was no genuine issue of material fact as to the allegation that McEntee had defaulted on the note. The trial court’s entry of summary judgment in favor of Wells Fargo on McEntee’s counterclaims was also in error because Wells Fargo did not establish the absence of a genuine issue of material fact as to McEntee’s affirmative defense, and because McEntee’s counterclaim concerning emotional distress was not properly before the trial court at summary judgment. We therefore reverse the trial court and remand this matter for further proceedings.

Reversed and remanded.

ROBB, C.J., and MATHIAS, J., concur.

      . McEntee's required payments under the note were in excess of this amount due to a requirement in the mortgage that he include in his monthly payments amounts for escrow items, including taxes and other assessments, mortgage insurance, and other such amounts.

      . McEntee noted before the trial court and again in his brief before this court that an attorney who had not filed an appearance form pursuant to Trial Rule 3.1 represented Wells Fargo during oral argument before the trial court, though the same law firm that had represented Wells Fargo to that point employed that attorney. McEntee does not indicate how counsel’s failure to enter a proper appearance prejudiced him. See T.R. 61 (providing no basis for reversal on appeal where an error does not affect the substantial rights of the parties). However, during oral argument before the trial court, counsel for Wells Fargo told the trial court that the check McEntee submitted for his January 2010 payment was returned for insufficient funds. There was no evidence in the record to support this statement, and argument of counsel is not properly designated evidence. See Richards-Wilcox, Inc. v. Cummins, 700 N.E.2d 496, 499 n. 3 (Ind.Ct.App.1998). Any consideration of counsel's statement was therefore inappropriate.

      . As we have already observed, the materials Wells Fargo designated were insufficient of themselves to support an entry of summary judgment on its foreclosure claim.


author: SHEPARD, Senior Judge.

text:
    TOWN OF ZIONSVILLE, Indiana, and Zionsville Plan Commission, Appellants-Defendants, v. HAMILTON COUNTY AIRPORT AUTHORITY, Appellee-Plaintiff.
    No. 49A05-1107-PL-374.
    Court of Appeals of Indiana.
    June 20, 2012.
    Rehearing Denied August 8, 2012.

      Jeffrey C. McDermott, Robert S. Schein, Libby Y. Goodknight, Krieg De-Vault LLP, Carmel, IN, Attorneys for Appellants.
    Bryan H. Babb, Stephen C. Unger, Bose McKinney & Evans LLP, Indianapolis, IN, Attorneys for Appellee.
    Robert A. Duncan, Norris Choplin Schroeder LLP, Indianapolis, IN, Attorney for Amici Curiae.
   OPINION

SHEPARD, Senior Judge.

The Hamilton County Airport Authority owns an airport located next door in Boone County, within the Town of Zionsville. The Authority contends that it is not subject to any Boone County zoning or to the covenants it executed to obtain airport zoning from Boone County. The trial court agreed.

The Indiana Supreme Court has held that a general unit of government maintains zoning authority within its boundaries, even as to other general governments. It has also made clear that this authority cannot be employed for abusive or unreasonable interference. Adhering to these principles, we reverse.

FACTS AND PROCEDURAL HISTORY

The Indianapolis Executive Airport is located on 525 acres in Boone County, along its border with Hamilton County. Previously known as Terry Airport, it has operated at that site since the 1950s. Appellee’s App. pp. 13,16. In 2003, Hamilton County purchased the airport. Id. at 609-10. In September 2004, the Board of Aviation Commissioners of Hamilton County, predecessor to the Airport Authority, executed and recorded covenants to govern land use at the airport. Appellants’ App. p. 25. The Boone County Commissioners and the Boone County Area Plan Commission obliged the Aviation Commissioners to execute these covenants in exchange for creating airport districts as a category of use under the county zoning ordinance and designating the airport site for this purpose. Appellee’s App. pp. 625-26.

In 2006, Hamilton County created the Airport Authority and transferred to the Authority all of the Aviation Commissioners’ assets, including the airport. Appellants’ App. pp. 34-40.

In July 2008, the Town of Zionsville, Eagle Township, and Union Township adopted a plan of reorganization that combined the three governmental units into a single entity, known as the Town of Zions-ville. The Town thus gained zoning jurisdiction over the former Eagle Township and Union Township in areas where Boone County previously exercised it, including the airport. Appellee’s App. pp. 170, 171, 703.

In February 2010, Zionsville’s planning director informed the Airport Authority that it needed approval from Zionsville’s planning department prior to obtaining construction permits. Id. at 627-28. Meanwhile, the Authority had been developing its own land use plan, and it adopted a land use ordinance for the airport in March 2010. Appellants’ App. pp. 41-60.

In light of the dispute regarding zoning jurisdiction over the airport, the Airport Authority filed a complaint for declaratory judgment asking the court to determine: (1) that the Authority has exclusive jurisdiction over land use, zoning, and drainage at the airport; (2) that the Boone County Zoning Ordinance and the Zionsville Zoning Ordinance are invalid as applied to the airport; and (3) that the covenants of 2004 are invalid. The Authority initially named Zionsville, the Boone County Commissioners, and the Boone County APC as defendants, but it later dropped the County and its APC. By agreement of the parties, the case was transferred to Marion County. After a hearing on cross-motions for summary judgment, the trial court granted the Authority’s motion, denied Zionsville’s, and entered final judgment in favor of the Authority. This appeal followed.

ISSUES

The central issues in Zionsville’s appeal are:

I. Whether, as a governmental unit of general authority, Zionsville has planning and zoning jurisdiction over the airport.
II. Whether, even if it does not, the covenants of 2004 remain binding upon the Authority.

DISCUSSION

I. Standard of Review

The parties agree on the standard of review. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). As with a trial court, a reviewing court construes all factual inferences in favor of the nonmoving party and resolves all doubts as to the existence of a material issue against the moving party. Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind.2009). Questions of law, of course, are reviewed de novo. Tankersley v. Parkview Hosp., Inc., 791 N.E.2d 201, 204 (Ind.2003).

II. Applicable Statutes

Zionsville and the Airport Authority necessarily join their competing claims of exclusive zoning jurisdiction by citing the pertinent statutes. When courts set out to construe a statute, we first look to the language of the statute itself and strive to give the words their plain and ordinary meaning. Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1288 (Ind.2009). We examine the statute as a whole and try to avoid excessive reliance on a strict literal meaning or the selective reading of individual words. Id. We presume the legislature intended the language used in the statute to be applied logically, consistent with the statute’s underlying policy and goals, and not in a manner that would bring about an unjust or absurd result. Id.

Zionsville notes that the Indiana Code’s leading provisions granting general zoning authority over a relevant geographic area assign that authority to “units” of local government and specifically define a “unit” as a county, municipality, or township, not including specialized entities like airport authorities. Ind.Code § 86-1-2-23 (1980). Because Zionsville has adopted a comprehensive zoning ordinance pursuant to the processes the Code prescribes, and because the airport lies within Zionsville’s geographic boundaries, Zionsville argues that it has sole zoning jurisdiction over the airport. Ind.Code § 36-7-4-601 (1995).

In response, the Airport Authority contends that it has separate statutory authority to exercise zoning jurisdiction. The list of powers for an airport authority is a lengthy one. See Ind.Code § 8-22-3-11 (2001). One of the powers on the list is that the Authority may “fix and determine exclusively the uses to which the airport lands may be put. All uses must be necessary or desirable to the airport or the aviation industry and must be compatible with the uses of the surrounding lands as far as practicable.” Ind.Code § 8-22-3-11(16) (“subsection 16,” for short). The Authority reasons that the power to control “the uses” of airport property includes the power to control the zoning of airport property. The term “uses” is not defined elsewhere in the statute or by caselaw, and amici Aviation Association of Indiana and various airport authorities (“amici”) assert that this case is the first opportunity to interpret the statute.

Zionsville argues that the Airport Authority is making too much of a single phrase in one subsection of the Code. Zionsville says that the Authority’s power under subsection 16 “to fix and determine exclusively the uses” of airport property is not synonymous with zoning jurisdiction. That provision does not mention zoning, argues Zionsville, and by its plain language authorizes the airport to determine only “how the Airport land is arranged and configured.” Appellants’ Br. p. 18.

The Airport Authority also supports its interpretation of subsection 16 by citing Indiana Code section 8-22-3-18.1 (1997), which provides in relevant part:

This section constitutes full authority for the issuance of revenue bonds. No procedure, proceedings, publications, notices, consents, approvals, orders, acts, or things by the board, by a board, an officer, a commission, a department, an agency, or an instrumentality of the state, or by an eligible entity is required to issue revenue bonds or to do any act or perform anything under this chapter, except as presented by this chapter. The powers conferred by this chapter are in addition to, and not in substitution for, and the limitations imposed by this section do not affect the powers conferred in another section of this chapter or by any other statute.

Ind.Code § 8-22-3-18.1(s). Thus, the Authority reasons, it is not obligated to seek zoning approval from Zionsville or any other entity before carrying out its duties. Zionsville replies by noting that this statute, by its very terms, applies only to matters concerning revenue bonds.

There are, of course, a host of specialized local government entities authorized under Indiana law, variously called districts, authorities, or corporations. The statutes for each of these entities tend to describe their powers in rather robust terms. A public library corporation, for example, may “govern and set policy for all affairs of the public library,” acquire and sell real property, purchase and dispose of personal property, establish branches and museums, issue bonds, and borrow money. Ind.Code §§ 36-12-3-3, - 4, -5, -9 (2005).

Similarly, local housing authorities may construct, repair, operate, and lease housing projects, investigate slum areas and cooperate with governmental entities in reconstructing those areas, exercise exceptions from taxes and special assessments by state entities and other political subdivisions, and invest their funds, among other powers. Ind.Code §§ 36-7-18-16 (1996), -19 (1998), -20 (1987), -25 (1981). The Code says housing authorities have “all the powers necessary or convenient for carrying out the purposes of this chapter.” Ind.Code § 36-7-18-14 (1981).

Likewise, fire protection districts may hire staff, “invoke any legal, equitable, or special remedy” to exercise its powers, enter into agreements with municipalities “located within or outside the district” to fulfill the district’s duties, levy taxes, and purchase property. Ind.Code § 36-8-11-15 (2001). And levee authorities, the statutes say, “have exclusive jurisdiction within the [authority’s] district” and the power to “adopt ordinances to protect all property owned or managed by the district.” Ind.Code § 14-27-6-30 (2001).

The special local entities just cited, and others like airport authorities, share a number of characteristics. First, their enumerated powers often read as rather robust in order to portray a sufficient picture of independence to warrant avoidance of the municipal debt limitations of Article 1, Section 7 of the Indiana Constitution. Second, it is fairly common that these specialized entities are charged with assignments that involve public safety or health or both (like protecting low-income persons through the power of housing authorities to assure “safe and sanitary” dwellings).

Third, a great many of these special entities operate in complex legal environments requiring that they navigate among multiple federal and state taskmasters. Just as airport authorities must interact with the Federal Aviation Administration and the Indiana Department of Transportation, for example, public transportation corporations, Ind.Code §§ 36-9-4-1 to 58, must act in accordance with regulations or grant assurances of the Indiana Department of Transportation, the Department of State Revenue, and the federal Mass Transportation Administration.

Thus, the legal claim of exclusive power advanced by the Airport Authority is one that, with different Code sections and different public purposes substituted, could be deployed by any number of other local government entities.

Whether the statutes granting specialized powers to a particular government entity serve to exclude the land use regulation established by Title 36 was at stake in City of Crown Point v. Lake County, 510 N.E.2d 684 (Ind.1987). There, Lake County determined that it should use its former sheriffs home to operate the Community Corrections Program, which it alone could do under Indiana Code article 11-12. The property in question was not appropriately zoned under the zoning and planning ordinances of the City of Crown Point, and the City sought an injunction barring the County from using the sheriffs home without seeking proper zoning from the City.

The Supreme Court observed that land use control is particularly a local function. Cities or counties may develop a comprehensive land use plan to promote the public health, safety, comfort, morals, convenience, and general public welfare. Id. at 686 (citing Ind.Code § 36-7-4-501). The reach of the comprehensive plan is broad, including among a great many other facilities “[pjublic buildings and institutions, including governmental administration and service buildings, ... penal and correctional institutions, and other civic and social service buildings.” Id. (quoting Ind.Code § 36-7-4-503(2)(N)). This plan is implemented through local zoning ordinances. Id. (citing Ind.Code §§ 36-7-4-601 to 614). In deciding whether such zoning ordinances may regulate the activity of other governmental units, the Court said:

The general power to regulate zoning does not specifically include the power to require that other political subdivisions comply with zoning regulations. However, a survey of other statutes granting local authority to perform and regulate government functions shows that none of the powers delegated to government units contain explicit authority to require compliance by another political subdivision. Thus, while [units] may “regulate the use of public ways,” Ind.Code § 36-9-2-7, no specific authorization is given to enforce such regulation on any other political subdivision. Though “a municipality that operates sewage works ... may require: (1) Connection to its sewer system of any property producing sewage or similar waste; and (2) Discontinuance of the use of privies, cesspools, septic tanks and similar structures,” Ind.Code § 36-9-23-30(a), no specific enforcement is provided against other political subdivisions.
Strict interpretation of the limitation that a unit may not impose a duty on a political subdivision without express statutory authority would lead to the conclusion that counties may not enforce speed zones against city employees and cities may not prohibit counties from dumping raw sewage in rivers and streams. “[A]dherence to such strict letter would lead ... to absurdity.” Zoercher v. Indiana Associated Telephone Corp. (1937), 211 Ind. 447, 455, 7 N.E.2d 282, 285 (quoting Stout v. Board of Commissioners (1886), 107 Ind. 343, 347, 8 N.E. 222, 224).

City of Crown Point, 510 N.E.2d at 686 (emphasis in original).

The Court held that the zoning ordinance of Crown Point did apply to the former sheriffs residence which Lake County intended to use for a function delegated solely to the county. On the other hand, the Court also made clear that this did not mean that the City had absolute power to enforce its zoning requirements against all other governmental entities under all factual circumstances:

We conclude that an intruding entity must be allowed to seek relief under some circumstances [but] must ... bear the burden [of showing] that ... [such relief] is necessary to advance the governmental ends it seeks. The essential purpose of zoning, “to rationally coordinate land-use planning to promote orderly development and preservation of property values,” City of Fargo [v. Harwood Township ], 256 N.W.2d [694] at 697, generally can best be furthered by local zoning authorities which have been established to accomplish that very purpose. Local zoning proceedings also provide for public debate in an administrative hearing which can address the interests of all parties.
However, there will be occasions when the land use plan of a community must fall before other critical government objectives. The decisions of local zoning boards in any context have been reviewed to determine if they are arbitrary, capricious or patently unreasonable. Ash v. Rush County Board of Zoning Appeals, 464 N.E.2d 347 [ (Ind.Ct.App.1984) ]. Local land use decisions must be evaluated not only in terms of local need and benefit, but in light of community, area or state-wide interests as well.
When a zoning authority has denied an intruding government’s request for approval of a given land use, an appeal can lie to the courts, which will balance the interests to determine which must prevail. Factors to be considered include the propriety of the land use, such as the economic and environmental impact on the area, the kind of function or land use involved, the availability of alternative locations, and any attempts to minimize detriments to adjacent landowners, as well as a consideration of competing interests, such as the nature and scope of the intruding government unit, the essential use to the local community and the broader community, the need for the specific site as compared to the adverse impact, the social utility of the proposed use, and the possible frustration of a government function. These are the sort of decisions assigned to local executive and legislative bodies. Where their determinations are irreconcilable, the legislature has provided for a review of the zoning decision by the judiciary.

Id. at 690-91.

The Authority’s best argument for standing out from this general legal rule is that subsection 16 says it may “fix and determine exclusively the uses.” While this is fairly strong language, in context it also cuts against the Authority’s position. In the very Code article authorizing airport authorities, the legislature has elsewhere given these authorities actual zoning authority beyond the boundaries of its own property to the extent that is necessary to assure safe descent and ascent of aircraft. That limited authority belongs to the Authority alone: “The zoning jurisdiction granted in this section is exclusive against jurisdiction granted by any other statute.” Ind.Code § 8-22-8-14(d) (1990). Obviously, when the General Assembly intends to confer exclusive zoning authority on a special district like airports it has used language doing so. It is plausible enough to conclude that when the legislature desired to grant airport authorities zoning powers, it did so in section 14(d) and did not do so in subsection 16.

Amici are quite correct that aviation is a central part of the state’s transportation framework and of its economic health. Amici observe that Indiana Code section 8-22-3-28(a) (1995) declares that an airport authority’s control over “acquisition, establishment, construction, improvement, ... maintenance, control, and operation of airports ... is a governmental function of general public necessity and benefit.” That judicial review of the sort described in City of Crown Point should take serious account of these principles seems self-evident.

III. The Covenants

Finally, the parties contest a point about the covenants governing uses at the airport, which the Authority’s predecessor executed in 2004 in exchange for Boone County’s creation of a special airport zoning district. The covenants provide that they “may be enforced by the [Boone County APC], the Boone County Commissioners or such planning authority and municipal corporation as my [sic] subsequently acquire jurisdiction for zoning of the [airport].” Appellants’ App. p. 180. Zionsville says that it is Boone County’s successor as the general government with zoning control over the geographic area that includes the airport.

The Airport Authority’s leading contention about the covenants rests on the idea that when the conversion from an airport board to an airport authority occurred in 2006, Boone County lost its authority to zone the airport and thus Zionsville could not succeed Boone County. Appellee’s Br. pp. 25-26.

This contention flows as follows. Section 1 of the covenants states, “Should any provision of the Ordinance be deemed invalid, adjudicated unenforceable, or be amended ... as of the date of the ordinance, these covenants shall be void and of no force and effect.” Appellants’ App. p. 178. The Airport Authority asserts that when ownership passed from the Aviation Commissioners to the Authority, Boone County’s ordinance became inapplicable (or “invalid”) inasmuch as subsection 16 gave the newly-created Authority complete zoning jurisdiction. As we have indicated above, we conclude that subsection 16 does not prevail over the general zoning powers of counties and cities. The covenants are thus not “of no force and effect” on these grounds.

Whether the Authority may gain relief from the covenants on other grounds is therefore left unresolved by this proceeding. The regular rule is that covenants executed during zoning processes bind the contracting parties even when zoning ordinances do not. And a good many of the parties to the present dispute have shared each stage of its development. The airport commissioners who signed the covenants in 2004, for example, became a majority of the Authority’s board when it was created in 2006, and the 2006 board members were a majority of the board that adopted the airport’s land use ordinance in 2010. The actual airport operator, Montgomery Aviation, has been the same throughout. Appellants’ App. pp. 60, 181; Appellee’s App. pp. 41, 636, 640, 642. Whether a successful appeal of an adverse zoning decision of the Town would afford the Authority relief from the covenants has not been briefed and cannot be resolved today.

CONCLUSION

We reverse the judgment of the trial court and direct it to enter judgment for the Town of Zionsville.

Reversed.

DARDEN, J., and BARNES, J., concur.

      . We heard oral argument on May 17, 2012, in Indianapolis and appreciate the helpful presentations by counsel for the parties and for amici curiae.


author: NAJAM, Judge.

text:
    Steven BROWN, Appellant-Defendant, v. Chris GUINN, Appellee-Plaintiff.
    No. 22A01-1111-SC-524.
    Court of Appeals of Indiana.
    June 25, 2012.

      Gary D. Miller, Jeffersonville, IN, Attorney for Appellant.
    Shane L. Gibson, Gibson Law Office, LLC, New Albany, IN, Attorney for Ap-pellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Steven Brown appeals the trial court’s judgment for Chris Guinn on Guinn’s complaint alleging breach of contract. Brown raises three issues for our review, which we restate as follows:

1. Whether the trial court abused its discretion when it denied his motion for involuntary dismissal;
2. Whether the trial court committed reversible error when it concluded that Brown was estopped from denying the term of the parties’ lease contract; and
.3. Whether the trial court’s judgment is clearly erroneous.

We affirm.

FACTS AND PROCEDURAL HISTORY

In June of 2009 Brown and Guinn contracted for Brown to take possession of Guinn’s 2003 Coronado truck (“the truck”). In addition to taking possession, Brown assumed Guinn’s monthly payments on the truck to Daimler Truck Financial. The written contract did not contain a specific term or a specific amount of payment, but it did permit either party to cancel the contract at any time. Brown had drafted the contract.

In July, August, and September, Brown made the monthly payments on the truck pursuant to the contract. But he did not make those payments over the next three months, despite retaining possession of the truck. In January 2010, Daimler Truck Financial repossessed the truck while it was still in Brown’s possession.

On August 9, 2011, Guinn filed his notice of claim against Brown. Guinn claimed that Brown had breached their contract when he did not pay Guinn’s monthly payments between October and December of 2009 despite retaining possession of the truck. At the ensuing bench trial, Guinn did not produce a copy of the contract but Brown admitted in his testimony that the contract had been made. In his defense, Brown testified that he had cancelled the contract at the end of August 2009 when he had an agreement to sell the truck to a third party, although that sale later fell through. On October 17, 2011, the court entered judgment for Guinn. This appeal ensued.

DISCUSSION AND DECISION

Standard of Review

Brown appeals from the trial court’s judgment for Guinn. In such appeals, our standard of review is well established:

In the appellate review of claims tried by the bench without a jury, the reviewing court shall not set aside the judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. City of Dunkirk Water and Sewage Dep’t v. Hall 657 N.E.2d 115, 116 (Ind.1995) (stating standard of review in appeal from small claims court). In determining whether a judgment is clearly erroneous, we will not reweigh the evidence or determine the credibility of witnesses but will consider only the evidence that supports the judgment and the reasonable inferences to be drawn from that evidence. Id.
Small claims actions are “informal, with the sole objective of dispensing speedy justice between the parties according to the rules of substantive law.” Ind. Small Claims Rule 8(A). Although the court here made special findings, the formal entry of special findings is “contrary to the policy announced in Small Claims Rules 8 and 11,” which provide that small claims trials are informal and require only that small claims judgments “shall be reduced to writing.” Bowman v. Kitehel, 644 N.E.2d 878, 879 (Ind.1995) (quoting Ind. Small Claims Rule 11(A)).

Bennett v. Broderick, 858 N.E.2d 1044, 1047-48 (Ind.Ct.App.2006); see also Counceller v. Ecenbarger, Inc., 834 N.E.2d 1018, 1021 (Ind.Ct.App.2005).

Issue One: Motion for Involuntary Dismissal

Brown first contends that the trial court’s denial of his Trial Rule 41(B) motion for involuntary dismissal was clear error. According to Trial Rule 41(B):

After the plaintiff or party with the burden of proof upon an issue, in an action tried by the court without a jury, has completed the presentation of his evidence thereon, the opposing party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the weight of the evidence and the law there has been shown no right to relief....

A Trial Rule 41 motion to dismiss tests the sufficiency of the plaintiffs case in chief. See, e.g., Fielitz v. Allred, 173 Ind.App. 540, 542, 364 N.E.2d 786, 787 (1977). Our review of the denial of the motion for involuntary dismissal is limited to an examination of the evidence most favorable to the nonmoving party that was presented prior to the filing of the motion. See Williams v. State, 892 N.E.2d 666, 671 (Ind.Ct.App.2008), trans. denied.

Brown argues that the trial court’s denial of his Rule 41(B) motion was erroneous because Guinn had failed to produce the written contract that was the basis for his claim. According to Brown, Guinn’s failure to produce the contract required dismissal under Indiana Small Claims Rule 2(B)(4)(a) and Indiana Code Section 26-1-2.1-201(1). Brown is mistaken.

Indiana Small Claims Rule 2(B)(4)(a) states that a notice of claim shall contain “a copy” of the “written contract” on which the claim is based. This rule is analogous to Indiana Trial Rule 9.2(A), which states that, “[w]hen any pleading allowed ... is founded on a written instrument, the original, or a copy thereof, must be included in or filed with the pleading.” However, it is well established that noncompliance with Rule 9.2(A) is not a per se bar to the action. Rather, as stated in Rule 9.2(F): “The court, in its sound discretion, may order compliance ... or allow the action to continue without further pleading.” While the small claims rules do not contain a provision analogous to Trial Rule 9.2(F), “the Rules of Trial Procedure apply in small claims court unless the particular rule in question is inconsistent with something in the small claims rules.” Bowman v. Kitchel, 644 N.E.2d 878, 879 (Ind.1995). Trial Rule 9.2(F) is not inconsistent with Small Claims Rule 2(B)(4)(a). Therefore, the trial court acted within its discretion when it did not dismiss Guinn’s action merely because he had failed to produce a copy of the written contract.

Indiana Code Section 26-1-2.1-201(1) also does not apply here. Under that statute:

A lease contract is not enforceable by way of action or defense unless: ... (b) there is a writing, signed by the party against whom enforcement is sought ... sufficient to indicate that a lease contract has been made between the parties and to describe the goods leased and the lease term.

But subsection (4) of the statute limits subsection (l)’s application. According to subsection (4):

A lease contract that does not satisfy the requirements of subsection (1), but which is valid in other respects, is enforceable: ... (b) if the party against whom enforcement is sought admits in that party’s pleading, testimony or otherwise in court that a lease contract was made, but the lease contract is not enforceable under this provision beyond the quantity of goods admitted....

Ind.Code § 26-1-2.1-201(4).

Subsection (4) describes what happened in this case. While Guinn failed to produce a copy of the written lease contract, the contract is still enforceable because, in his testimony, Brown admitted that the contract had been made.

Brown attempts to ignore subsection (4) by focusing on the timing of his motion for involuntary dismissal, which occurred before his admission to the existence of the contract. But Guinn testified that a contract existed, and that testimony was sufficient to survive Brown’s Trial Rule 41(B) motion. As the trial court stated, “Guinn’s testimony is some proof.” Transcript at 13. And Indiana Code Section 26-1-2.1-201 does not mandate dismissal of an action at the close of the plaintiffs case-in-chief simply because the plaintiff did not produce a written contract. Indeed, to hold otherwise would render subsection (4) a nullity. Thus, the court did not err when it denied Brown’s motion for involuntary dismissal.

Issue Two: Estoppel

Brown next contends that the trial court erroneously concluded that he was “estopped from denying ... the term of the lease.” Appellant’s App. at 8. In its order, the trial court concluded as follows:

[Brown] claims that [Guinn] was wrong in describing the length of the lease term but, having acknowledged the preparation of the lease and the possession of the same, and [Brown] having failed to introduce the lease in his possession into evidence^ he] is estopped from denying that the term of the lease was six (6) months as [Guinn] claimed in his testimony.

Id. On appeal, Brown states that there is no evidence to support the trial court’s conclusion that he was in possession of the contract. As such, he continues, the court’s conclusion that he should be es-topped from denying the purported term of the contract is erroneous.

Guinn does not dispute that there is no evidence in the record to support the trial court’s conclusion that Brown was in possession of the contract. Nonetheless, we do not see how the court’s statement, even if erroneous, is reversible error. While the parties disputed the length of the contract — Guinn testified that the contract was in effect for six months, while Brown testified that he had cancelled the contract after four months — both parties testified that the written contract did not state a term. See Transcript at 16 (Guinn’s testimony), 27-28 (Brown’s testimony).

Thus, even if one of the parties had submitted the written contract, the court’s determination as to the length of the contract would still have been based on parol evidence, which, in turn, would have required the court to credit either Guinn or Brown and discredit the other. The judgment does not turn on whether Brown had the lease in his possession and failed to introduce the lease at trial but on the testimony of the parties, which we cannot reweigh on appeal. See Counceller, 834 N.E.2d at 1021. Indeed, it is clear that the court credited Guinn’s testimony over Brown’s as to the length of the lease. As such, Brown cannot show reversible error on this issue.

Issue Three: Sufficiency of the Evidence

Finally, Brown contends that Guinn failed to meet his burden of proof for his breach of contract claim. To prevail on a claim of breach of contract, the plaintiff must satisfy three elements: the existence of a contract, the defendant’s breach of that contract, and damages. U.S. Fid. & Guar. Ins. Co. v. Hartson-Kennedy Cabinet Top Co., 857 N.E.2d 1033, 1039 (Ind.Ct.App.2006). As discussed above, both sides testified that they had a contract; Guinn testified that Brown breached the contract when Brown failed to pay for three months despite retaining possession of the truck; and Guinn presented evidence of his damages as a result of Brown’s breach.

Nonetheless, Brown argues that he “presented more than adequate evidence that any agreement between himself and Guinn was cancelled by Brown at his discretion,” Appellant’s Br. at IB; that he had “fulfilled any agreement with Guinn to make payments on Guinn’s truck while the truck was in the possession of Brown,” id. at 14; and that Guinn informed the court that he had “no issues with anything the defense has to say,” id. at 15. Brown’s first two arguments ignore the evidence most favorable to the judgment and, in effect, ask this court to reweigh the evidence, which we will not do. Counceller, 834 N.E.2d at 1021. Brown’s third argument takes a statement by Guinn out of context. In the document Brown quotes, Guinn makes clear that his position was that, even if Brown’s testimony were accurate, Brown was still liable to Guinn. See Appellant’s App. at 5. Accordingly, Brown’s arguments on appeal are without merit.

Conclusion

In sum, we hold that the trial court did not abuse its discretion when it denied Brown’s motion for involuntary dismissal. We also hold that Brown has not demonstrated that the trial court’s findings and conclusions are clearly erroneous. As such, we affirm the court’s judgment.

Affirmed.

ROBB, C.J., and BAILEY, J., concur.

      . Brown also asserts that the trial court erroneously relied on Indiana Code Section 26 — 1— 2.1-201(4) to justify its consideration of the parol evidence. In particular, Brown contends that the conflicting testimony demonstrated a lack of consideration and undermined the existence of the contract in the first place. As explained in Issue One, however, Brown expressly admitted that he had a contract with Guinn. We cannot ignore his admission on appeal. And insofar as Brown also states that the trial court erred in relying on Section 26-1-2.1-201(4) because it failed to consider "the quantity of goods admitted,” we simply note that, two sentences later, Brown acknowledges that “[t]he quantity of goods was never an issue.” Appellant’s Br. at 12.