author: BAILEY, Judge.

text:
    William PEREIRA and Joseph McConnell, Appellants-Plaintiffs, v. Monica PEREIRA, John LeFebre and Karen LeFebre, Appellees-Defendants.
    No. 04A05-1205-PL-241.
    Court of Appeals of Indiana.
    Jan. 24, 2013.

      William M. Pope, Mark J. Crandley, Barnes & Thornburg LLP, Indianapolis, IN, Attorneys for Appellants.
    Judson G. Barce, Hunter J. Reece, Bonnie J. Adams, Barce & Reece, PC., Fowler, IN, Attorneys for Appellees.
   OPINION

BAILEY, Judge.

Case Summary

William Pereira and Joseph McConnell appeal a summary judgment order which denied their complaint to quiet title in real estate acreage bequeathed by Joseph Sleeper (“Sleeper”) and allowed inheritance of a share of the acreage by John LeFebre and Karen LeFebre. We affirm.

Issue

A single issue is presented for review: whether the trial court erred in granting summary judgment, based upon a construction of Sleeper’s will to conclude that he had not devised a contingent remainder, subject to the condition of outliving a life tenant, but rather had made a gift to a class, which included John and Karen LeFebre’s mother, with a life estate intervening.

Facts and Procedural History

Sleeper, who owned approximately 358 acres of land in Benton County, Indiana, executed a handwritten will on October 30, 1917 (“the Will”). Sleeper died in 1922 and the Will was submitted for probate on December 6,1922.

Sleeper bequeathed to his wife, Eva Sleeper, a life estate in the acreage and, upon her death, a life estate to the children of Sleeper’s friend, Ralph McConnell, specifically, Margaret McConnell and Joseph W. McConnell. Sleeper also designated alternative contingent beneficiaries to inherit the acreage in fee simple at the termination of the second life estate. In particular, the Will provided:

Fourth: I will and bequeath, at the death of my said wife, Eva C. Sleeper, to Margaret I. McConnell, and Joseph W. McConnell, children of Ralph W. McConnell, all the real estate I may own or die seized of situated in Benton County, Indiana, to have these rents and income from said real estate for and during their natural lives and should either of said children die before my said wife, Eva C. Sleeper, it is my will that the survivor shall inherit said rents and profits from said real estate, and at the death of both of said named children it is my will that said real estate shall pass to any child or children they may have surviving them, share and share alike in fee simple. Should said named children die without any issue left, it is my will that all of my said named and mentioned real estate shall be the sole and legal property of the Trustees of the Methodist Episcopal Hospital of the City of Indianapolis, Indiana, to have and to use the same if they may desire for said hospital use.

(App. 12.)

Eva Sleeper died on June 30, 1933, survived by both Margaret McConnell and Joseph W. McConnell. Thus, the McConnell siblings jointly inherited the second life estate.

Joseph W. McConnell died in November of 1989, survived by his children Joseph McConnell and Julia McConnell Tarr. Margaret McConnell died in January of 2011, survived by Monica Pereira, an adopted child, and William Pereira. Julia McConnell Tarr had died in September of 2007, survived by John LeFebre and Karen LeFebre (hereinafter, “the Grandchildren”).

On April 19, 2011, Joseph McConnell and William Pereira (hereinafter, “the Children”) filed a complaint to quiet title, naming as defendants Monica Pereira and the Grandchildren. The Estate of Julia McConnell Tarr moved to intervene. The parties, disputing the construction of the fourth paragraph of the Will, filed cross-motions for summary judgment.

On December 22, 2011, argument was heard on the cross-motions for summary judgment. On April 20, 2012, the trial court entered summary judgment, concluding that the Grandchildren could collectively receive a one-third share in the acreage (that portion which would have been inherited by their mother, Julia McConnell Tarr, had she survived at the termination of the life estate). This was based upon the trial court’s construction of the Will as “eontemplat[ing] a generation skipping vesting process so that the death of either Margaret I. Pereira (McConnell) or Joseph W. McConnell establishes the class to which that ancestor’s interest passes and thus closes the class by the ancestor’s death and that both ancestors need not die before the class is determined.” (App. 6.)

The Children appeal.

Discussion and Decision

I. Standard of Review

In reviewing a trial court’s ruling on summary judgment, we stand in the shoes of the trial court, and apply the same standards in deciding whether to affirm or reverse summary judgment. Warren v. Warren, 952 N.E.2d 269, 272 (Ind.Ct.App.2011). Summary judgment is appropriate if 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 may affirm a grant of summary judgment on any theory supported by the designated materials. Gilman v. Hohman, 725 N.E.2d 425, 428 (Ind.Ct.App.2000), trans. denied.

Here, the parties agree that there is no disputed issue of fact and that the question to be determined is one of testamentary intent. The interpretation, construction or legal effect of a will is a question of law to be determined by the court. In re Estate of Owen, 855 N.E.2d 603, 608 (Ind.Ct.App.2006). Accordingly, this Court owes no deference to the probate court’s legal conclusions. Id.

The testator’s intent is controlling, and is not to be frustrated so long as it is not contrary to law. Myers v. Ellerbusch, 746 N.E.2d 408, 409 (Ind.Ct.App.2001). “The paramount objective in construing a will is to determine and give effect to the testator’s true intent as expressed in the will.” Id. In order to determine intent, the Court looks to the four corners of the will and the language used in the instrument. Carlson v. Sweeney, Dabagia, Donoghue, Thorne, Janes & Pagos, 895 N.E.2d 1191, 1197 (Ind.2008). When construing the language, the court should strive to give effect to each provision, clause, term, or word if possible. Id. A general intent in a will is to be carried into effect at the expense of any particular intent and where the testator has expressed conflicting intents, the most important prevails. Id.

II. Analysis

There is no dispute regarding the authenticity of the Will; nor are there relevant facts in dispute. The parties agree that the language of the Will conveys successive life estates and creates a contingent remainder in fee. A remainder is a future interest arising in a third person. Lewis v. Clifton, 837 N.E.2d 1016, 1018 (Ind.Ct.App.2005). A contingent remainder “is merely the possibility or prospect of an estate which exists when what would otherwise be a vested remainder is subject to a condition precedent, or is given to an uncertain person or persons.” Id. at 1019 (Ind.Ct.App.2005) (citation omitted). A remainder is vested when there is an immediate right of present enjoyment or a present fixed right of future enjoyment; that is, when it is given to an ascertained person and is not subject to a condition precedent. Bailey v. Bailey, 142 Ind.App. 119, 127, 232 N.E.2d 372, 378 (1967).

The disputed matter is the satisfaction of the contingency upon which Julia McConnell Tarr’s interest would vest: whether it was upon her birth or whether she was required to outlive Margaret Con-nell, the last of the life tenants to die. If Julia McConnell Tarr received no interest or estate, then it could not be inherited by Grandchildren. The Children and Grandchildren ascribe different meanings to the phrase “and at the death of both of said named children it is my will that said real estate shall pass to any child or children they may have surviving them, share and share alike in fee simple.” (App. 12.)

According to the Children, the plain language requires that any child of the McConnell siblings must survive “both” the siblings in order to receive a share and because Julia McConnell Tarr did not survive her aunt, she was not a child “they” had surviving and Julia’s estate and the Grandchildren have no claim to the acreage. The Children also observe that the Will employed language “share and share alike” as opposed to “per stirpes,” suggesting that Sleeper did not contemplate inheritance by an additional generation.

The Grandchildren deny that the language of the Will “plainly’ expresses the testator’s intent to condition vesting upon the survival of all life tenants. According to the Grandchildren, “both” and “they” may be read as singular because an individual is commonly referred to as “they” and because Sleeper would not have anticipated that biological siblings would have children in common that “they” would have surviving. Appellee’s Brief at 4. They also strenuously assert that the law prefers vesting to contingency and Sleeper’s intention to convey an estate in fee simple must be given effect.

The Grandchildren maintain that the trial court correctly found the Will to be ambiguous. They further contend that the trial court properly construed the Will to provide that Julia McConnell Tarr became a vested member of the remainder class at her birth or, at the latest, when her father, Joseph W. McConnell, died.

It has been observed: “Indiana law favors the early vesting of an estate.” Lewis, 837 N.E.2d at 1019. Nonetheless, a testator “undoubtedly has the right, within legal limitations, to fix the time of vesting of any estate created by him.” Hayes v. Second Nat’l Bank of Richmond, 176 Ind.App. 299, 301, 375 N.E.2d 647, 649 (1978). Ultimately, whether a particular estate or interest is vested or contingent depends upon the intention of the testator as interpreted from the will. Id.

The Grandchildren contend that Sleeper’s intent of early vesting is evident from his conveyance “in fee simple.” Arguing that “the importance of the term ‘in fee simple’ cannot be ignored,” Appellee’s Brief at 11, they direct our attention to Alsman v. Watters, 184 Ind. 565, 106 N.E. 879 (1914) and Coquillard v. Coquillard, 62 Ind.App. 426, 113 N.E. 474 (1916).

Alsman involved a life estate carved out with a gift over to children of the life tenant. Luke Walters’ will had contained the provision:

I give and bequeath to my son, Francis M. Walters, during his natural life and after his death to his children surviving him in fee simple the following tract of land[.]

106 N.E. at 880. When the will was probated, Francis Walters had two children, William Walters and Nancy Walters. Nancy Walters died intestate in 1895, leaving Alsman as her sole descendant. After the death of the testator, Francis Walters had four other children. The trial court concluded that William Walters, the sole surviving child of the life tenant, was the owner of the land. His counsel claimed that on the death of the testator, the remainder vested in the children of the life tenant, but that the title taken was a conditional fee, which could vest absolutely only on the death of Francis Walters. See id.

On appeal, the Indiana Supreme Court observed that a fee may be held in abeyance but “it was ever odious and never recognized unless in cases of extreme necessity.” hi The Court concluded that a gift was made to a class — children—with a life estate intervening and “[w]here such a gift is immediate, the persons constituting the class are ascertained as of the date of the death of the testator.” Id. Where a life estate is carved out, with a gift over to children of the life tenant, the gift not only embraces the children living at the testator’s death, but also all who may come into existence during the life tenancy. Id. The children alive at the testator’s death take an immediately vested interest subject to a diminution of their shares to let in such others as may be born during the life tenancy. Id.

The Court reiterated that the language of a will is to be considered in its entirety. Id. The testator had made a gift “to his children surviving him” and had also devised the estate in “fee simple.” Id. The Court recognized that “the term ‘surviving him’ might better denote an intent to limit the vesting of the absolute estate in those children only who might survive the first taker.” Id. at 881. However, in considering the language used in its entirety, including the description “fee simple,” the Court opined that a clear intention to create an estate limited to survivorship of the first taker was not manifested; therefore, the Court looked to established rules for construction of ambiguous devises, including the rule that the law looks with disfavor on postponing estates. Id. After consideration of relevant precedent, the Court concluded:

We are of the opinion that on the death of Luke Walters the fee-simple title to the land in question vested absolutely in appellee and appellant’s mother, subject to diminution to let in after-born children, and consequently the court erred in concluding that appellee is the sole owner of the land.

Id. at 882.

The construction that upon the death of the testator, fee simple title to land vested absolutely in the life tenant’s children, subject to diminution to let in after-born children, has since been affirmed in factually similar cases. See Aldred v. Sylvester, 184 Ind. 542, 111 N.E. 914 (1916), Moorman, et al. v. Moorman, et al., 156 Ind.App. 606, 297 N.E.2d 836 (1973), Busick v. Busick, 65 Ind.App. 655, 115 N.E. 1025 (1917), Coquillard, 62 Ind.App. 426, 113 N.E. 474.

In particular, Coquillard involved a very similar factual situation to the instant case. Alexis Coquillard, Sr.’s will devised a life estate to his wife, a subsequent life estate to his sons, to be held by them “share and share alike,” and on the death of his “several children,” the remainder of the share of each child was given in fee simple to such children as the children/life tenants might leave surviving them. Id. at 482, 113 N.E. 474. No such child had been born at the time of the testator’s death.

Accordingly, the remainder in fee was limited to a person’ or persons not ascertained and it was therefore contingent. Id. at 483, 113 N.E. 474. The Court was required to determine the contingency upon which the contingent remainder in fee would vest: “whether, in the case of either son, the birth of a child or children to him within his lifetime is sufficient to that end, as to the undivided one-half of the lands involved, or whether such remainder will so vest only on the decease of said son leaving a child or children surviving him.” Id.

The Court cited a common law principle that a valid remainder might be limited on a particular life estate to unborn children and, on their birth during the life tenancy, the remainder would immediately vest. Id. The intent of the testator was given effect: “The testator evidently contemplated that this real estate should be a source of income to the widow during her life, and thereafter to the sons during their respective lives, and that the corpus of the estate should be preserved to the unborn children of the latter.” Id. at 485, 113 N.E. 474. Ultimately, the Court held, “under authority of Alsman v. Walters,” that while the estate at issue in the case then at bar (which was limited to the unborn children of either son) was a contingent remainder in fee, the estate would vest as a remainder in fee on the birth of a child to a son, subject to be opened up to let in other children of such son afterwards born alive. Id. at 483,106 N.E. 879.

More recently, in Pechin v. Medd, et al, 476 N.E.2d 526 (Ind.Ct.App.1985), trans. denied, a panel of this Court considered Pechin’s argument regarding the following testamentary language:

To my daughter, Leona May Johnson, and her children, my farm in Anderson Township, Rush County, Indiana, containing one hundred and thirty-three (133) acres more or less. The said Leona May Johnson to have a life estate in said farm with the remainder in fee simple to her surviving children.

Id. at 528. The appellant, Pechin, contended that the phrase “with the remainder in fee simple to her surviving children” meant that Leona Johnson’s children had a contingent remainder, subject to the condition that they outlive their mother, the life tenant. Id. at 529. Finding the will ambiguous because the farm was initially devised in fee simple to Leona and her children, but then the devise was refined to grant a life estate and a remainder in fee simple, this Court applied the holding of Alsman. Id. at 529-30.

The Pechin court found its conclusion to be “bolstered by a closer examination of [the] will,” wherein the testatrix provided for the situation in which the children did not outlive their parent, “lending] credence to the conclusion that [the testatrix] intended that the remainder interest of the grandchildren ... vest upon her death and not upon the life tenant’s death.” Id. at 530. The Court’s examination of the will led the Court to conclude, as in Alsman, “ ‘nothing in this will warrants the imputation to testator of an intent to make the fee simple title of this land a grand prize to the victor in his grand-children’s race with death.’” Id. (quoting Alsman, 184 Ind. at 575, 106 N.E. at 879).

Here, the Children point out that Margaret and Joseph W. McConnell were the children of Sleeper’s friend, and thus their children and Grandchildren were not the natural object of Sleeper’s bounty. Nonetheless, out of affection for his friend, Sleeper sought to provide for his friend’s children and their children. The Will does not evince an intention that those descendants be treated with varying degrees of regard because they are not Sleeper’s biological descendants.

Here, the Will devises a fee simple estate but also employs limiting language of vesting or enjoyment: “upon the death of both.” Also, the Will includes the phrase “share and share alike” as opposed to “per stirpes.” Appellate courts have employed certain rules “where particular and future estates are created,” more specifically:

(1) The law so favors the vesting of estates at the earliest opportunity and is so averse to a postponement thereof that they will be deemed as vesting at the earliest possible period, in the absence of a clear manifestation of the contrary intention;
(2) words of postponement are presumed to relate to the beginning of the enjoyment of the estate, rather than to its vesting;
(3) words of survivorship are presumed to relate to the death of testator, rather than that of the first taker, if they are fairly capable of such interpretation.

Aldred v. Sylvester, 184 Ind. 542, 548, 111 N.E. 914, 916 (1916). Also, courts will not construe a limitation into an executory devise when it can take effect as a remainder, nor construe a remainder to be contingent where it can be taken as vested. Id.

In light of the precedent of Alsman and Coquillard, we likewise conclude that the devise in fee simple resulted in an immediate gift, with an intervening life estate. The intended class, the McConnell siblings’ children, was identified and had no such child been born, the alternative beneficiary was Methodist Hospital of Indianapolis. However, the McConnell siblings were not childless. Vesting occurred when the first child in the class was born; however, the class was open and the interest of the first child was subject to diminution of shares to let in others born during the life tenancy. When Julia McConnell Tarr was born, she was a class member. The trial court properly found that she had a vested interest, not contingent upon outliving the last surviving life tenant.

Conclusion

The trial court properly granted summary judgment in favor of the Grandchildren.

Affirmed.

VAIDIK, J., and BROWN, J., concur.

      . The trial court concluded that, due to the "stranger to adoption rule,” in effect at the time Sleeper executed his will, Monica Per-eira could not take under the Will. (App. 6.) The stranger to the adoption rule provides that when a person makes provision in his will for a child or children of some person other than himself, he will be presumed not to have included an adopted child or children of such other person, unless there is something in the will or extraneous circumstances to rebut that presumption. Paloutzian v. Taggart, 931 N.E.2d 921, 924 (Ind.Ct.App.2010). Monica Pereira has not challenged on appeal the trial court’s application of this rule to the 1917 will.

      . Per stirpes means literally by roots or stocks, by representation, and denotes the method of dividing an intestate estate where a class or group of distributes take the share which their ancestor would have been entitled to. Matter of Estate of Walters, 519 N.E.2d 1270, 1272 (Ind.Ct.App.1988), trans. denied.

      . A "fee simple” has been described as "the entire and absolute interest and property in land.” Brown v. Freed, 43 Ind. 253, 256 (1873).

      . An executory devise has been defined as: "An interest in land, created by will, that takes effect in the future and depends on a future contingency; a limitation, by will, of a future estate or interest in land when the limitation cannot, consistently with legal rules, take effect as a remainder.” Black's Law Dictionary 463 (7th Ed. 1999).


source: Caselaw Access Project

author: BAKER, Judge.

license: Public Domain

text:
    Seth ANDERSON, Appellant-Plaintiff, v. HUNTINGTON COUNTY BOARD OF COMMISSIONERS, Appellee-Defendant.
    No. 35A04-1207-MI-357.
    Court of Appeals of Indiana.
    Jan. 29, 2013.

      Justin R. Wall, Wall Legal Services, Huntington, IN, Attorney for Appellant.
    Robert S. Garrett, Matthew G. Grant-ham, Bowers, Brewer, Garrett & Wiley, LLP, Huntington, IN, Attorneys for Ap-pellee.
   OPINION

BAKER, Judge.

In this case, we are asked to determine what suffices as “reasonably particular” in a request for public records submitted under the Access to Public Records Act (APRA). Here, appellant-plaintiff, Seth Anderson, submitted four requests for emails pursuant to the APRA. Each request was identical — all seeking the emails sent or received within a four and one-half month time span — the only difference between the requests was that each named a different employee.

About one week later, appellee-defen-dant, the Huntington County Board of Commissioners (the “Commissioners”), sent a letter through counsel to Anderson, requesting further clarification and assuring Anderson that once clarification was received, the appropriate records would be provided. Instead, Anderson filed a formal complaint with the Public Access Counselor, who upheld the Commissioners’ decision, insofar as Anderson’s request was not “reasonably particular” as required by the APRA.

Anderson filed a complaint to compel access to the public records, seeking a court order to compel the Commissioners to supply the records as originally requested and for attorney fees and costs. The Commissioners informed Anderson that they intended to comply with his requests as written. Anderson concedes that he has received all requested information but not before a hearing was held after which, the trial court concluded that the Commissioners did not improperly deny Anderson’s requests because they were not “reasonably particular” and denied his request for attorney fees and costs.

We conclude that, inasmuch as a county employee spent ten hours and purchased new software to retrieve 9500 emails that then had to be turned over to human resources for further redaction, we agree with the Public Access Counselor and the trial court that Anderson’s requests were not reasonably particular. Likewise, we conclude that Anderson has not substantially prevailed under the APRA and is, therefore, not entitled to attorney fees, court costs, and reasonable expenses.

FACTS

On January 26, 2012, Anderson made four requests to the Commissioners’ Human Resources Director, Erika Devine, for email communications that fell under the APRA. More particularly, Anderson requested:

a. Emails that qualify as a public record that were sent to or from Erika Devine between September 1, 2011 & Jan 15, 2012.
b. Emails that qualify as a public record that were sent to or from Kathy Branham between Sept. 1, 2011 & Jan 15, 2012.
c. Emails that qualify as a public record that were sent TO or FROM Leon Hurlbert between September 1, 2011 And [sic] Jan 15, 2012.
d. Emails that qualify as a public record that were sent TO or FROM Tom Wall between September 1, 2011 and Jan 15, 2012.

Appellant’s App. 16-19 (emphases in original). '

On February 2, 2012, the Commissioners, through their attorney Robert Garrett, sent Anderson a letter, explaining that his request was denied because under Indiana Code section 5-14-3-8, Anderson’s request did not identify with “reasonable particularity” the records being requested. Nevertheless, the Commissioners assured Anderson that once he had described the requested public records with reasonable particularity, the appropriate records would be provided to him.

Anderson, however, did not send a second request. Instead, Anderson filed a formal complaint with the Office of the Public Access Counselor. In a March 15, 2012 opinion, the Public Access Counselor, Joseph Hoage, determined that “if the County denied your request for failure to identify with reasonable particularity the records that were sought, it violated the APRA. The County’s proper response to such a request would be to seek further clarification from you rather than simply denying the request.” Appellant’s App. p. 31.

Hoage further concluded that “[a]s to all other issues, it is my opinion that the County has not violated the APRA.” Id. at 34. Put another way, the Commissioners had not violated the APRA because they had not denied Anderson’s request outright but had requested that Anderson revise his request such that it was reasonably particular as required by the APRA.

In Hoage’s opinion, he referenced several previous opinions regarding email correspondence, pointing out that “e-mail is a method of communication and not a type of record; requests for records that only identify the records by method of communication only are not reasonably particular.” Id. at 33. Hoage gave examples to illustrate his reasoning and provide guidance. For instance, “a request for all email correspondence to and from Jane Doe for a range of dates is not reasonably particular.” Id. “However, a request for all e-mail correspondence from Jane Doe to Jim Smith for a range of dates would be reasonably particular.” Id.

Again, rather than clarifying his request, on March 27, 2012, Anderson filed a complaint to compel access to public records. In the complaint, Anderson sought a court order compelling the Commissioners to provide the records as he had originally requested. Additionally, Anderson sought to recover his attorney fees and costs.

Sometime in April, possibly even before the Commissioners had been served with Anderson’s complaint, the Commissioners informed Anderson that they intended to comply with his requests as he had originally written them. Tr. p. 42-43. Notwithstanding the Commissioners’ willingness to comply with Anderson’s requests, the trial court held a hearing on Anderson’s complaint on May 17, 2012. During the hearing, Anderson admitted that he had been told that he would receive the information that he had requested but that there would be a delay so that the Commissioners could redact certain non-public information like social security numbers and information protected by HI-PAA. Id. at 53. Still, Anderson defended the scope of his requests, maintaining that it was his right to look for “unknown unknowns” in his effort to obtain information. Id. at 83.

To comply with Anderson’s request, J. Ryan Wall, a Huntington County Information Technology (IT) employee, had to spend ten hours of his time and purchase new software. Wall compiled 9500 emails and provided them to the Human Resource Director on May 9, 2012, for further review and redacting. Anderson concedes that he received all the information as he originally requested, on July 12, 2012. Appellant’s Br. p. 14.

In the trial court’s June 28, 2012 order, it concluded that “the County did not improperly deny access to the records because Anderson was not ‘reasonably particular’ when he requested e-mails that qualify as public records that were sent to, or from Tom Wall, Leon Hurlburt, Kathy Branham, an[d] Erika Devine between September 1, 2011 and January 15, 2012.” Appellant’s App. p. 5. Thus, the trial court denied Anderson’s request for an order to compel the Commissioners to provide Anderson the requested emails and his request for attorney fees, court costs, and related expenses. Despite receiving the requested records, Anderson now appeals.

DISCUSSION AND DECISION

I. Mootness

As an initial matter, the Commissioners argue that insofar as Anderson concedes that he received the information he requested, the merits of this appeal are moot with the exception of Anderson’s request for attorney fees. An issue is considered moot when there is no live case or controversy, and the parties lack a legally cognizable interest in the outcome of its resolution or where no effective relief can be rendered to the parties. Poulard v. Laporte Cnty. Election Bd., 922 N.E.2d 734, 737 (Ind.Ct.App.2010). Nevertheless, even if an appeal is moot, we can still review it under the public interest exception, which may be invoked when the issue is a question of great public importance that is likely to recur. Id.

The Commissioners acknowledge that Anderson presents issues that are both novel and may arise again in other cases involving access to public records. Appel-lee’s Br. p. 7. However, the Commissioners point out that government agencies have the Public Access Counselor to assist them.

Anderson responds by emphasizing that this is an issue of first impression, involving important legal issues stemming from the APRA. This fact alone makes this issue a matter of “great public importance that is likely to recur.” Poulard, 922 N.E.2d at 737.

Anderson also contends that his appeal is not moot because there are still unresolved legal issues such as whether or not his request was “reasonably particular.” Indeed, Anderson argues that a definition of “reasonably particular” is of “upmost [sic] importance.” Reply Br. p. 6. Because Anderson has presented us with an issue of first impression, namely, whether his request was “reasonably particular” under the APRA, we will address the merits of Anderson’s appeal.

II. Reasonably Particular

Anderson argues that his requests to the Commissioners were “reasonably particular” as required by Indiana Code section 5-14-3-3(a) and, therefore, his requests should not have been denied, and the Commissioners should have been court ordered to produce the records exactly as he requested them. The Commissioners counter that they did not refuse to provide access to public records. Instead, they asked for more information so that they could better facilitate Anderson’s request without incurring unreasonable cost and expense.

Initially, we observe that the public policy behind the APRA is to provide the public with full and complete information regarding the affairs of the government. See I.C. § 5-14-3-1 (stating that “it is the public policy of the state that all persons are entitled to full and complete information regarding affairs of the government. ...”) However, to request access to a public record, it must be described with “reasonable particularity.” I.C. § 5-14-3-3(a)(1). The meaning of this phrase is the crux of the dispute between the Commissioners and Anderson.

“Reasonable particularity” is not defined within the APRA; however, Indiana Code section 5-14-3-1 states that “[t]his chapter shall be liberally construed to implement this policy and place the burden of proof for the nondisclosure of a public record on the public agency that would deny access to the record and not on the person seeking to inspect and copy the record.” Recently, in Jent v. Fort Wayne Police Department, 973 N.E.2d 30, 33 (Ind.Ct.App.2012), a case factually similar to the instant one, a panel of this Court likened the reasonable particularity requirement to the discovery rules, stating that “a requested item has been designated with ‘reasonable particularity1 if the request enables the subpoenaed party to identify what is sought and enables the trial court to determine whether there has been sufficient compliance with the request.”

It is noteworthy that while the Commissioners agree with Anderson that the Public Access Counselor’s decision is not binding on the trial court or this Court, in the absence of case law or adequate statutory authority, this Court should give considerable deference to the opinions of the Public Access Counselor. The Commissioners point out that in other areas of administrative law, “with respect to an agency’s interpretation of statutes and regulations that [it] is charged with enforcing, such interpretation is entitled to great weight.... ” Austin v. Ind. Family & Soc. Servs. Admin., 947 N.E.2d 979, 982 (Ind.Ct.App.2011). Nevertheless, the Commissioners concur with Anderson that unlike other cases under the Administrative Orders and Procedures Act, the trial court reviews an opinion of the Public Access Counselor de novo. I.C. § 5-14-3-9.

Here, Hoage, the Public Access Counsel- or, defined “[pjarticularity” as “the quality or state of being particular as distinguished from universal.” Appellant’s App. p. 32. For example, a request for emails sent and received by a person in the last one hundred days lacks the particularity required to satisfy the statute and is a “universal” request. Id. at 31-33. Hoage also noted that records broadly involving a method of communication such as email did not rise to the level of “reasonable particularity” so as to compel disclosure. Id. at 33.

In reaching his conclusion, Hoage relied on prior opinions, inasmuch as this was not the first time that a Public Access Counselor had addressed this issue. Additionally, Hoage suggested ways in which Anderson could modify his request noting that “a request for all e-mail correspondence from Jane Doe to Jim Smith for a range of dates would be reasonably particular,” whereas “a request for all e-mail correspondence to and from Jane Doe for a range of dates is not reasonably particular.” Id. Instead, Anderson chose to file suit.

The trial court again referenced Hoage’s opinion, approving the examples of what would and would not be considered reasonably particular. Additionally, the trial court stated that allowing requests such as Anderson’s would permit a “fishing expedition.” Appellant’s App. p. 4.

Moreover, Anderson’s requests required that the Commissioners determine which emails were truly public records and which were not. Consequently, even after the Commissioners compiled the emails, they had to undergo a process to ensure that they did not provide protected health information or other non-disclosable material. Tr. p. 53. This process involved turning over the 9500 emails to Human Resources to be redacted, after an IT employee had already spent ten hours and purchased new software for acquiring the emails. Id. at 95, 98.

Nevertheless, Anderson points out that the “reasonably particular” requirement exists so that the government agency knows what is being requested from the agency. Anderson asserts that the strongest evidence that his requests were reasonably particular is that the Commissioners provided the information that Anderson requested without Anderson modifying his initial requests.

Although the Commissioners ultimately spent the time and expense compiling and reviewing 9500 emails, they did not necessarily have a legal obligation to do so, and, as argued above, the Public Access Counselor’s opinions state the opposite. To be sure, the fact that the Commissioners provided the information exactly as Anderson requested it does not define the APRA. Indeed, we agree with the Public Access Counselor’s opinion that Anderson’s requests were not reasonably particular under the APRA, and the Commissioners were under no legal obligation to provide to him the information as he requested. Consequently, this argument fails.

III. Costs and Attorney Fees

Anderson maintains that he has substantially prevailed and that awarding him attorney fees, court costs, and all other reasonable costs of litigation is mandatory. Indiana Code section 5 — 14—8—9(i) provides that “[i]n any action filed under this section, a court shall award reasonable attorney’s fees, court costs, and other reasonable expenses of litigation to the prevailing party if ... the plaintiff substantially prevails; or [] the defendant substantially prevails and the court finds the action was frivolous or vexatious.” When the requirements of the statute have been met, the award of attorney fees is mandatory. Indianapolis Newspapers v. Ind. State Lottery Comm’n, 739 N.E.2d 144, 156 (Ind.Ct.App.2000).

Although the statute fails to define “substantially prevails,” it is unmistakable that Anderson did not substantially prevail in the instant case. As we concluded above, Anderson’s requests for information from the Commissioners were not reasonably particular. Furthermore, Anderson received all of the information as he requested it in what must have been a reasonable time frame because he did not allege that it was unreasonable. Anderson was given notice that he would receive the information he requested before the trial court’s hearing on the matter. Accordingly, we cannot say that Anderson substantially prevailed “[i]n an action filed under this section.” I.C. § 5 — 14—3—9(i). Consequently, this argument also fails.

The judgment of the trial court is affirmed.

BARNES, J., and BROWN, J., concur.

      . Ind.Code chapter 5-14-3 et seq.

      . We heard oral argument on December 18, 2012, in Indianapolis. We thank counsel for their informative oral and written presentations.

      . Anderson includes in his Appendix, Defendant's Exhibit A. Appellant's App. p. 37. From this exhibit, it appears that the Commissioners intended to comply with Anderson's requests, as written, on April 2, 2012. Id. However, the trial court excluded Exhibit A as evidence, and the Commissioners do not challenge this evidentiary ruling on appeal. Tr. p. 86.

      . Anderson’s first argument is actually that email correspondence is a public record within the definition of the Indiana Code. Inasmuch as the Commissioners "assume for the sake of argument that the e-mails in question are individually ‘public records' under Ind. Code § 5-14-3-2(n),” we need not address this issue. Appellee’s Br. p. 8.

      . Anderson argues that he is entitled to both trial attorney fees and costs and appellate attorney fees and costs. In the Commissioners’ brief, they state that "[f]or purposes of this appeal only, the Commissioners assume for the sake of argument that a prevailing party may obtain an award for appellate attorney fees as well.” Appellee’s Br. p. 17 n.9. However, the Commissioners point out that if this Court reverses the trial court’s denial of attorney fees and costs, remand is appropriate so that the trial court can recalculate attorney fees for Anderson's appeal.


author: MAY, Judge.

text:
    In re the MARRIAGE Of Paul D. EDWARDS AND Zobeida E. BONILLA-VEGA, Paul D. Edwards, Appellant-Petitioner, v. Zobeida E. Bonilla-Vega, Appellee-Respondent.
    No. 53A05-1203-DR-163.
    Court of Appeals of Indiana.
    Jan. 31, 2013.

      Karen A. Wyle, Bloomington, IN, Attorney for Appellant.
    Benjamin L. Niehoff, Andrews, Harrell, Mann, Carmín & Parker, P.C., Blooming-ton, IN, Attorney for Appellee.
   OPINION

MAY, Judge.

Paul Edwards (Husband) appeals the distribution of marital assets as part of the dissolution of his marriage to Zobeida E. Bonilla-Vega (Wife). He presents three issues for our review, one of which we find dispositive: Whether the settlement proceeds from Husband’s action against his former employer, which commenced prior to the dissolution proceedings and was finalized before the dissolution was final, were properly included and valued as a marital asset. We affirm.

FACTS AND PROCEDURAL HISTORY

Husband and Wife married in 1999. Two children were born of the marriage. In 2006, Husband sued a former employer alleging damages to his career from the non-renewal of his contract. Husband filed a petition for legal separation on July 1, 2010, and Wife filed a petition for dissolution of marriage on July 26. Husband’s lawsuit against his former employer was pending when Wife filed for dissolution, but it was settled in October 2010.

Then, on November 14, 2011, the trial court entered the decree dissolving the marriage of Husband and Wife. The court included in the marital pot, and divided between the parties, the settlement proceeds of Husband’s claim against his former employer. Believing the settlement proceeds should not be included in the marital pot, Husband filed a motion to correct error, which the trial court denied.

DISCUSSION AND DECISION

A trial court has broad discretion in ruling on a motion to correct error. Volunteers of Am. v. Premier Auto Acceptance Corp., 755 N.E.2d 656, 658 (Ind.Ct.App.2001). We will reverse only for an abuse of that discretion. Id. An abuse of discretion occurs if the decision was against the logic and effect of the facts and circumstances before the court or if the court misapplied the law. Id.

Indiana subscribes to the “one-pot” theory of marital possessions, Fobar v. Vonderahe, 771 N.E.2d 57, 58 (Ind.2002), and thus the marital estate is presumed to include all property owned by either spouse prior to marriage, acquired by either spouse in his or her own right after the marriage and prior to final separation of the parties, or acquired by their joint efforts. Ind.Code § Sl-15-7-4(a). Because of those presumptions, the marital pot generally closes on the date a dissolution petition is filed. Alexander v. Alexander, 927 N.E.2d 926, 940 (Ind.Ct.App.2010), trans. denied.

Husband and Wife agree that Husband’s action against his former employer was a chose in action, in that it was a claim for damages stemming from an alleged tort. See Black’s Law Dictionary 284 (7th ed. 1999) (Defining chose in action as “1. A proprietary right in person-am, such as a debt owed by another person, a share in a joint-stock company, or a claim for damages in tort. 2. The right to bring an action to recover a debt, money, or thing.”).

They disagree, however, about the implications of that characterization. Husband claims the settlement proceeds from the chose in action is not subject to distribution in the marital estate because the exact amount of damages, if any, were not known at the time Wife filed for dissolution. Wife asserts the settlement proceeds should be included in the distribution of assets because the chose in action was a property right that existed before she filed for dissolution.

Husband cites case law indicating a chose in action is not divisible as marital property. However, all of those decisions are distinguishable factually from the instant matter because in none of those cases had the value of the chose in action been established prior to the final hearing. See McNevin v. McNevin, 447 N.E.2d 611, 616 (Ind.Ct.App.1983) (chose in action not subject to division as marital asset when wife had not filed lawsuit at time of final separation); Neffle v. Neffle, 483 N.E.2d 767, 771-72 (Ind.Ct.App.1985) (chose in action not included as marital asset because the “contingent and speculative nature and value of a chose in action is what makes it incapable of division,” and wife’s action had not been filed at the time the trial court entered its final order of dissolution), reh’g denied; Murphy v. Murphy, 510 N.E.2d 235, 238 (Ind.Ct.App.1987) (settlement money not marital asset because chose in action was filed prior to final separation but not settled until after final decree); Mullins v. Matlock, 638 N.E.2d 854, 856 (Ind.Ct.App.1994) (settlement money not marital asset because chose in action was filed prior to final separation but not settled until after final decree), trans. denied.

The fact remains a chose in action is a property right that comes into existence when the tort occurs. See Kuhn v. Kuhn, 273 Ind. 67, 70, 402 N.E.2d 989, 991 (1980) (chose in action comes into existence when right to sue occurs, and is subject to applicable statute of limitations). Pursuant to statute, a property right acquired during the marriage is subject to division as part of the dissolution. Ind. Code § 31-15-7-4(a). Here, there is no dispute that Husband’s chose in action against his employer came into existence in 2006, which was during the marriage. Thus, Husband’s chose in action was marital property that the court did not have discretion to exclude from the marital estate.

The only question is whether the value of that marital property was speculative or could be known. See Neffle, 483 N.E.2d at 771-72 (“contingent and speculative nature and value of a chose in action is what makes it incapable of division”). A trial court has discretion to value a marital asset at any time during the proceedings. See Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind.1996) (“[T]he trial court has discretion when valuing the marital assets to set any date between the date of filing the dissolution petition and the date of the hearing.”). Herein, Husband settled his in chose in action with his former employer in November 2010, which was between the filing of the dissolution petition and the date of the final hearing on August 22-24, 2011. Therefore, the decision whether to include the property settlement monies in the marital estate was entrusted to the sound discretion of the trial court, and we cannot say the trial court abused its discretion when it included Husband’s tort claim settlement monies in the marital pot and divided them accordingly. See, e.g., Adams v. Adams, 535 N.E.2d 124, 126 (Ind.1989) (unvested pension is too speculative to include in marital assets, but if pension vests during dissolution proceedings, such that its value is established, then it is to be included in division of assets).

CONCLUSION

Because a chose in action is a property right, the trial court did not abuse its discretion when it included it in the marital pot. Therefore, we affirm.

Affirmed.

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

      . We note the trial court did not consider which parts of Husband's settlement were for lost wages, future wages, or other damages from the tort. In Beckley v. Beckley, 822 N.E.2d 158 (Ind.2005), our Indiana Supreme Court held the portion of Husband's settlement under the Federal Employers' Liability Act representing future wages was not subject to distribution as part of the dissolution proceedings. Id. at 162. The Court held, however, that the trial court did not abuse its discretion when it included Husband's entire settlement as part of the marital pot because Husband did not present evidence to rebut the presumption that “all the assets of either party or both parties” are property subject to division pursuant to Ind. Code § 31-9-2-98(b).
      The same is true in the instant case. Husband’s settlement is vague regarding the nature of any compensatory damages paid to Husband. Husband ignored Wife’s discovery request to produce a copy of the original complaint, see Appellee's App. at 44-45, which may have been useful in determining which portion of the settlement might be excluded. Therefore, as in Beckley, we decline to hold the trial court abused its discretion when it included all of the settlement, minus $5,000 for Husband's moving expenses, as part of the marital pot.


text:
    In re the Matter of David Woodward COOK, Appellant-Respondent, v. Beth Ann COOK, Appellee-Petitioner.
    No. 49A04-1207-PO-370.
    Court of Appeals of Indiana.
    Feb. 20, 2013.

      Brent C. Embrey, Embrey Law Office, Fishers, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Stephen R. Creason, Chief Counsel, Criminal Appeals, Office of the Attorney General, Indianapolis, IN, Attorney for Intervenor.
   OPINION

BAILEY, Judge.

Case Summary

David Woodward Cook (“Cook”) appeals the denial of his motion to correct error, wherein he challenged an order for protection and requested the deletion of his name and information from the Judicial Technology and Automatic Committee (“JTAC”) website and law enforcement databases. We reverse and remand for a hearing on the merits of Cook’s motion to correct error.

Issue

Cook articulates three issues, which we consolidate and restate as a single issue: whether the trial court abused its discretion in denying the motion to correct error.

Facts and Procedural History

On May 17, 2012, in Marion Superior Court, Criminal Division 21 (“the criminal court”), Cook’s wife (“Wife”) obtained an ex parte order for protection from Cook, pursuant to the Indiana Civil Protection Order Act (“the Act”). Wife’s description of the “incident” prompting the request was that the couple’s marital counselor had telephoned Wife to report that he had felt “unsafe” in a conversation with Cook and felt responsible to verify that Wife “felt safe.” (App. 3.)

A hearing was set for June 15, 2012 in the criminal court. However, before the hearing could take place, Wife filed a motion to transfer the matter to Marion Superior Court, Civil Division 12 (“the civil court”), which had jurisdiction over the parties’ divorce and custody proceedings. The motion to transfer was granted on June 11, 2012. According to Cook, a second protective order was issued on June 11, 2012, again without a hearing.

On June 15, 2012, Cook filed in the civil court a motion to correct error and a motion for a hearing. He requested vacation of any protective order and removal of public postings from electronic databases. The court denied the motion, opining that the matter should be addressed by the criminal court that issued the protective order. On July 18, 2012, the criminal court issued an order denying relief and transferring the cause back to the civil court. The order provided in relevant part:

The Court followed the procedure outlined in the Act in this case.
To protect the due process rights of the Respondent, a hearing may be requested within thirty days of receipt of the order to challenge the issuance of the ex parte order. That hearing should be held in the court where the pending matter is docketed.
Respondent has apparently requested such a hearing in compliance with the statute.

(App. 37.) Cook filed a notice of appeal on July 23, 2012. Four days later, Wife filed a motion to dismiss the petition for a protective order, pursuant to Indiana Code Section 34-26-5-12, and the civil court “terminated the Order for Protection issued on May 17, 2012.” (App. 50.)

Because Cook alleged on appeal that electronic posting of a protective order without a hearing violated his due process rights under the Indiana Constitution, this Court ordered the Indiana Attorney General to enter an appearance and provide briefing on the matter.

Discussion and Decision

I. Standard of Review

A trial court is vested with broad discretion to determine whether it will grant or deny a motion to correct error. Williamson v. Williamson, 825 N.E.2d 33, 44 (Ind.Ct.App.2005). When a statute is challenged under the Indiana Constitution, it stands “clothed with the presumption of constitutionality until clearly overcome by a contrary showing.” Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind.1996). The party challenging the constitutionality bears the burden of proof, and all doubts will be resolved against that party. Wallace v. State, 905 N.E.2d 371, 378 (Ind.2009).

II. Analysis

We take judicial notice that the JTAC website discloses that Cook was subject to a May 2012 protective order and that the protective order has been dismissed. Cook claims, and the State agrees, that he was denied due process because he received no statutory hearing pursuant to his request. Cook further claims that having his name publicly posted causes him to face “severe consequences with employers and peers” and jeopardizes his liberty interests under the Fourteenth Amendment to the United States Constitution and his reputation interests under Article 1, § 12 of the Indiana Constitution. Appellant’s Br. at 6.

The State observes that Cook did not, in the proceedings below, allege that the Act is facially unconstitutional or notify the Attorney general of a constitutional challenge; in response, Cook clarifies that he does not intend to “raise any questions regarding the constitutionality of ex parte orders generally.” Reply brief at 3. It appears that, although Cook may have implicitly alleged that the Act is unconstitutional as applied to him, his actual objective is to secure removal of his name from databases accessible by either the public or law enforcement officers.

The State agrees with Cook that he was wrongfully deprived of a hearing and maintains that the appropriate avenue for obtaining his requested relief is a hearing in the civil court. The State contends that Cook has failed to develop an as-applied constitutional challenge, at best having alleged a generic injury:

because [Cook] has never clearly developed his specific allegations, it is unnecessary — even impossible — for this [appellate] Court to decide what test might best resolve his claim. It is best left to the trial court to receive [Cook]’s evidence, if there is any, identify his actual claim with more clarity, and then look to what test is appropriate to determine what process was due to protect [Cook]’s reputational rights, whatever they are.

State’s Br. at 10.

Nonetheless, Cook no longer seeks an evidentiary hearing, but instead asks this Court to directly order removal of his name from the JTAC website and law enforcement databases. He provides no authority to support our issuance of such an order. Essentially, his complaint is that the Act contains no expungement provision and that this court should sua sponte correct the omission.

We are not in a position to afford Cook the immediate relief he seeks. We agree with the State that Cook was entitled to a hearing in the civil court and was, by the sequence of transfers, conflicting orders, and dismissal, denied his statutory right. However, if Cook wishes to assert that the Act is unconstitutional as applied to him because of its injury to his reputation and negative impact upon his employ-ability, it is incumbent upon him to develop a factual record.

Therefore, we reverse the denial of Cook’s motion to correct error and remand for a hearing.

Reversed and remanded.

VAIDIK, and BROWN, JJ., concur.

      . Ind.Code § 34-26-5-1, et seq.

      . The appellate record contains no signed order or CCS entry indicating that the second order was in fact issued. However, the CCS indicates that, on June 13, 2012 protective orders were served by leaving them "at the home (on the door).” (App. 40.)

      . Indiana Code Section 34-26-5-10(a) provides in pertinent part: "if a court issues an order for protection ex parte ... and provides relief under section 9(b) of this chapter, upon a request by either party not more than thirty (30) days after service of the order or modification, the court shall set a date for a hearing on the petition.”

      .Indiana Code Section 34-26-5-18(7) requires that an order for protection "issued under this chapter” be entered into the Indiana data and communication system by a county sheriff or local law enforcement agency. According to Cook, the information appears on multiple websites.

      . Article 1, § 12, Indiana’s due course of law provision, states: "All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.”


author: PYLE, Judge.

text:
    Pedro ALVAREZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 09A02-1203-CR-241.
    Court of Appeals of Indiana.
    Feb. 26, 2013.

      Lisa M. Traylor-Wolff, Logansport, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Andrew R. Falk, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

Pedro Alvarez (“Alvarez”) appeals his convictions and sentence for two counts of Class B felony dealing in cocaine.

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

ISSUES

1. Whether the trial court erred in admitting a mug shot of Alvarez.
2. Whether the trial court’s order of consecutive sentences for his convictions is appropriate.

FACTS

In October of 2003, Kendall Kerschner (“Kerschner”) contacted Detective Jeff Schnepp (“Detective Schnepp”) of the Cass County Drug Task Force regarding the sale of crack cocaine by Alvarez. On February 25, 2004, Kerschner, acting as a confidential informant, along with other officers on the task force, conducted a controlled drug buy from Alvarez. Ker-schner called Alvarez and arranged a meeting at Alvarez’s apartment. Before leaving task force headquarters, Detective Schnepp searched Kerschner for any contraband and found none. Kerschner received buy money and was outfitted with an audio transmitter.

Detective Schnepp drove Kerschner to the area of Alvarez’s apartment and dropped him off. Detective Schnepp then parked his vehicle in a spot where he was able to watch Kerschner enter and exit Alvarez’s apartment. Kerschner gave Alvarez $150; in exchange, Alvarez gave Kerschner three rocks of crack cocaine. Kerschner returned to Detective Schnepp’s vehicle and gave him the cocaine.

On February 26, 2004, Detective Schnepp used Kerschner again as a confidential informant and conducted another controlled drug buy using the same procedures. Kerschner again gave Alvarez $80, and Alvarez gave Kerschner crack cocaine.

On March 1, 2004, the State charged Alvarez with two counts of dealing in cocaine, as Class B felonies. On May 10, 2006, a jury trial was held. Having received notice of the trial date, Alvarez failed to appear. In place of in-court identification, the State used a redacted mug shot of Alvarez. The jury found Alvarez guilty of both counts of dealing in cocaine.

Eventually, Alvarez was arrested in Mississippi and a sentencing hearing was held on February 27, 2012. Finding that the aggravating circumstances outweighed the mitigating circumstances, the trial court sentenced Alvarez to twenty (20) years executed on both counts, to be served consecutively in the Department of Correction.

DECISION

1. Admissibility of Mug Shot

Alvarez argues that the trial court erred in allowing the State to introduce his mug shot into evidence. Alvarez asserts that the manner in which the State admitted the photograph caused him undue prejudice. We disagree.

“Appellate review of admissibility determinations by the trial court is for abuse of discretion, and reversal is appropriate only where the decision is clearly against the logic and effect of the facts and circumstances.” Joyner v. State, 678 N.E.2d 386, 390 (Ind.1997). “Generally, evidence of a defendant’s prior criminal history is highly prejudicial and is not admissible.” Boatright v. State, 759 N.E.2d 1038, 1042 (Ind.2001). “The admission of a photo array or fingerprint evidence can lead jurors to conclude that a defendant has previously been arrested.” Id. But, our Indiana Supreme Court has held that mug shots are admissible if they are not (1) unduly prejudicial and (2) if they have substantial independent probative value. Wisehart v. State, 693 N.E.2d 23, 47 (Ind.1998). Further, we have held that where a defendant fails to appear at trial, the defendant’s mug shot has substantial probative value for the purpose of proving identity. See McHenry v. State, 401 N.E.2d 745, 749 (Ind.Ct.App.1980), trans. denied.

Here, the State introduced the mug shot so that witnesses could identify Alvarez as the person who sold cocaine to the confidential informant. However, the Cass County Sheriffs Department only possessed a photograph of Alvarez from a prior arrest and not his current case. The mug shot was redacted to remove references to the prior arrest. We also note that neither the State nor its witnesses referred to the origin of the mug shot. In fact, the only implication that the photo came from a prior arrest arose through the questioning and argument of Alvarez’s defense counsel. (Tr. 185, 227). Finally, had Alvarez simply appeared for his trial, there would have been no reason to admit the mug shot. With these facts and circumstances, we find no abuse of discretion with the trial court’s admission of the mug shot.

2. Inappropriate Sentence

Alvarez also argues that his sentence was inappropriate. Here, we agree, and the State concedes, that Alvarez’s sentence was inappropriate. In Beño v. State, 581 N.E.2d 922 (Ind.1991), our Supreme Court held that where a defendant is convicted of multiple acts of dealing narcotics arising from sting operations contained in the same investigation, maximum and consecutive sentences were not appropriate for each act. In these types of investigations, the State controls the number of opportunities presented to a defendant to engage in criminal conduct. As a result, “stacking” the individual counts has been deemed inappropriate. We held the same in Rios v. State, 930 N.E.2d 664 (Ind.Ct.App.2010) (holding that consecutive sentences for two counts based on almost identical police-sponsored buys was inappropriate), and Bell v. State, 881 N.E.2d 1080 (Ind.Ct.App.2008), trans. denied (holding that maximum consecutive sentences for three controlled buys in the same investigation was inappropriate).

“When we find an irregularity in the trial court’s sentencing decision, we may remand to the trial court for a clarification or a new sentencing determination, or affirm the sentence if the error is harmless, or impose a proper sentence.” Rios, 930 N.E.2d at 669. We elect to impose a proper sentence pursuant to Beno; Alvarez’s sentences shall run concurrently and not consecutively. All other aspects of the sentence are affirmed. We remand to the trial court with instructions to enter a new sentencing order and abstract of judgment consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

FRIEDLANDER, J., and BROWN, J., concur.

      . Ind.Code§ 35-48-4-1.


author: MATHIAS, Judge.

text:
    CURVES FOR WOMEN ANGOLA an Indiana Partnership, Dan Cole, and Lori Cole, Appellants-Defendants, v. FLYING CAT, LLC, Appellee-Plaintiff.
    No. 76A04-1206-PL-312.
    Court of Appeals of Indiana.
    Feb. 26, 2013.

      Kevin L. Likes, Likes Law Office, Auburn, IN, Attorney for Appellant.
    Jeremy N. Gayed, Mark H. Bains, Fort Wayne, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

Dan Cole (“Dan”) appeals the judgment of the Steuben Circuit Court in favor of Flying Cat, LLC (“Flying Cat”), in Flying Cat’s breach-of-contract claim against Dan and his ex-wife Lori Atkison f/k/a. Lori Cole (“Lori”) arising out of a lease agreement between the Coles and Flying Cat for the operation of a business owned and operated by the Coles. On appeal, Dan presents three issues, which we consolidate and restate as: (1) whether the trial court clearly erred in finding that Dan and Lori were in a business partnership, and (2) whether the trial court clearly erred in finding that a lease extension signed by Lori could bind Dan and make him liable for a breach of the lease.

We affirm.

Facts and Procedural History

On December 5, 2001, Dan and his then-wife Lori entered into a Franchise Agreement with Curves International, Inc., so that they could operate a Curves exercise facility in Angola, Indiana. Dan and Lori each signed the Franchise Agreement individually as a “Franchisee.” Appellee’s App. p. 35. An affirmation clause in the Franchise Agreement provided:

We the undersigned principals of the corporate or partnership franchisee, do as individuals jointly and severally, with the corporation or partnership and amongst ourselves, accept and agree to all of the provisions, covenants and conditions of this agreement[.]

Id. at 36. Although the Franchise Agreement did not specify which type of entity the Coles would be operating their franchise under, the Coles never incorporated their Curves franchise, which did business as Curves for Women of Angola (“Curves of Angola”).

At approximately the same time, the Coles negotiated with Rosalie Dellinger, the predecessor in interest to Flying Cat (“the Landlord”), to lease space in Angola to operate Curves of Angola, with Dan acting as the principal negotiator of the terms of the lease. As a result of these negotiations, the Coles executed a commercial lease (“the Lease”) with the Landlord on December 11, 2001. Both Dan and Lori signed the Lease in the capacity of “Owner.” Appellant’s App. p. 55. Dan then made an initial payment of six months of rent to secure the Lease. The Lease was for an initial term of three years, with an option for two additional terms of three years.

After the Lease was executed, Lori managed the day-to-day operations of Curves of Angola, and Dan handled the accounting responsibilities and maintenance of the equipment. Dan and Lori operated Curves of Angola for profit and treated the profits of the business as marital property that they were both entitled to use.

On September 7, 2004, the Coles exercised the option for the first three-year extension to the Lease. The timing of this extension did not technically comply with the provisions of the original Lease, which required a sixth-month notice of the extension. However, the Landlord overlooked this deficiency and agreed to the extension. Both Dan and Lori signed the letter memorializing the extension agreement. Appellant’s App. p. 58.

Almost one year later, in July 2005, Dan and Lori separated, but they made several attempts at reconciliation. During one of these periods of reconciliation, Dan and Lori entered into another franchise agreement to operate another Curves franchise in Ohio. However, on May 4, 2007, Lori filed a petition for dissolution of her marriage with Dan. By the end of 2007, the Coles were in default under the terms of the Lease in an amount of $21,641.55.

Despite this default, on January 1, 2008, Lori and the Landlord executed the second option to renew the Lease. This second extension, like the first, was memorialized on behalf of “Curves for Women of Angola.” Appellant’s App. p. 59. Although Dan did not sign the renewal petition, neither he nor Lori informed the Landlord of the pending divorce. Nor did Dan otherwise inform the Landlord that he was no longer in a partnership with Lori. Thus, the Landlord believed that Lori was signing on behalf of both her and Dan as a partnership. And a representative of Flying Cat explained at trial that it routinely allows fewer than all partners to sign lease agreements on behalf of a partnership.

In August 2008, Curves had still not paid its overdue rental obligations. The Landlord presented Lori with a repayment schedule under which Curves of Angola could repay its back rent over time. Curves of Angola then repaid a small amount of its overdue rent, but soon fell behind again, and by the end of the term of the second extension in 2010, it was behind in rent and maintenance fees in the amount of $44,647.39. In 2011, Lori decided to sell Curves of Angola. Dan, as a franchisee under the Franchise Agreement, signed an “intent to sell” document authorizing the sale of the Curves for Angola franchise.

In the meantime, on March 2, 2010, Flying Cat had filed suit against the Coles, seeking damages for the unpaid rental and maintenance fees. Dan filed an answer, but Flying Cat obtained a default judgment against Lori and Curves of Angola in the amount of $49,945.03. On October 21, 2010, the trial court entered partial summary judgment in favor of Flying Cat and against Dan for the amounts due and unpaid under the Lease through December 31, 2007. At a bench trial held on May 1, 2012, the issue was whether Dan was liable for the amounts due and unpaid under the Lease through December 31, 2010. On May 21, 2012, the trial court entered findings of fact and conclusions of law in favor of Flying Cat. Dan now appeals.

Standard of Review

The trial court entered findings of fact and conclusions of law pursuant to Indiana Trial Rule 52(A). We therefore apply a two-tiered standard of review: we first determine whether the evidence supports the trial court’s findings, and second we determine whether the trial court’s findings support the judgment. Anderson v. Ivy, 955 N.E.2d 795, 800 (Ind.Ct.App.2011), trans. denied. The trial court’s findings and conclusions will be set aside only if they are clearly erroneous, i.e., if the record contains no facts or inferences supporting them. Redd v. Redd, 901 N.E.2d 545, 549 (Ind.Ct.App.2009). The party appealing the trial court’s judgment must establish that the findings are clearly erroneous. Anderson, 955 N.E.2d at 800. The trial court’s findings are clearly erroneous only when a review of the record leaves us firmly convinced that a mistake has been made. Id. In reviewing the trial court’s findings, we neither reweigh the evidence nor assess the credibility of witnesses, but consider only the evidence most favorable to the judgment. Redd, 901 N.E.2d at 549. We do not, however, defer to the trial court’s conclusions of law, which we review de novo. Anderson, 955 N.E.2d at 800; Redd, 901 N.E.2d at 549.

I. The Existence of a Partnership

Dan first claims that the trial court erred in concluding that he and Lori were in a partnership when they established Curves of Angola. “A partnership is an association of two (2) or more persons to carry on as co-owners a business for profit and includes for all purposes of the laws of this state a limited liability partnership.” Ind.Code § 23-4-1-6(1). The existence of a partnership is generally a question of fact. Copenhaver v. Lister, 852 N.E.2d 50, 58 (Ind.Ct.App.2006).

For a partnership to exist, the parties must have joined together to carry on a trade or venture for their common benefit, each contributing property or services, and having a community of interest in the profits. Id. at 58-59. Put another way, to establish a partnership relation between parties there must be: (1) a voluntary contract of association for the purpose of sharing profits and losses, which may arise from the use of capital, labor, or skill in a common enterprise; and (2) an intention on the part of the parties to form a partnership. Id. at 59. The intention that controls in determining the existence of a relationship is “the legal intention deducible from the acts of the parties.” See id. Thus, the intention to form a partnership must be determined by examining all the facts of the ease, and the conduct of the parties reveals their true intentions and the construction they placed upon their own agreement. Id.

Indiana Code section 23-4-1-7 sets forth rules for determining whether a partnership exists, specifically:

(1) Except as provided by section 16[] of this chapter, persons who are not partners as to each other are not partners as to third persons.
(2) Joint tenancy, tenancy in common, tenancy by the entireties, joint property, common property, or part ownership does not of itself establish a partnership, whether such co-owners do or do not share any profits made by the use of the property.
(3) The sharing of gross returns does not of itself establish a partnership, whether or not the persons sharing them have a joint or common right or interest in any property from which the returns are derived.
(4) The receipt by a person of a share of the profits of a business is prima facie evidence that the person is a partner in the business, but no such inference shall be drawn if such profits were received in payment for the following:
(a) As a debt by installments or otherwise.
(b) As wages of an employee or rent to a landlord.
(c) As an annuity to a widow or representative of a deceased partner.
(d) As interest on a loan though the amount of payment varies with the profits of the business.
(e) As the consideration for the sale of a goodwill of a business or other property by installments or otherwise.
(5)The existence of a partnership is not affected by the following:
(a) The filing or failure or omission to file an original or renewal registration as a limited liability partnership under section 45 of this chapter.
(b) The expiration of a partnership’s status as a limited liability partnership.
(c) The filing of a notice of -withdrawal under section 45 of this chapter.

(emphasis added).

Dan claims that the trial court clearly erred in finding that he and Lori were in a partnership because they did not share profits. In so doing, he refers to evidence that does not favor the trial court’s findings, a reference we are not permitted to make on appeal. See Redd, 901 N.E.2d at 549. Dan also notes that it was Lori who ran Curves of Angola on a day-to-day basis. However, the lack of daily involvement by one party is not per se indicative of an absence of a partnership. J.M. Schultz Seed Co. v. Robertson, 451 N.E.2d 62, 64 (Ind.Ct.App.1983). And there was evidence that Dan did participate in the Curves business by discharging the responsibility for maintenance and accounting.

Dan also claims that he and Lori did not share profits “under any set formulaf.]” Appellant’s Br. p. 11. But there is no requirement in Indiana Code section 23-4-1-7(4) that the profits be shared under any specific formula. Instead, there was evidence that both Lori and Dan shared in the profits as a general marital asset and that such profits were used for their common benefit by being spent on items such as joint vacations and household appliances.

Still, Dan claims, without citation to authority, that a partnership cannot be found based solely on a “community of interest.” Appellant’s Br. p. 11. Indiana Code section 28 — 4—1—7(2) does provide that “[j]oint tenancy, tenancy in common, tenancy by the entireties, joint property, common property, or part ownership does not of itself establish a partnership, whether such co-owners do or do not share any profits made by the use of the property.” But in Copenhaver, we specifically noted that, for a partnership to exist, the parties must have joined together to carry on a trade for their common benefit, each contributing property or services, and having a community of interest in the profits. Id. at 58-59 (emphasis added). And here, there was more than simple, joint ownership of the property.

Dan and Lori signed the Franchise Agreement, which referred to the signers as “principals of the corporate or partnership franchisee.” Appellant’s App. p. 36. Dan and Lori signed the initial Lease as “owners.” Id. at 7, 55. Dan also paid the first six months of rent for the Curves business. Dan provided maintenance and accounting services for Curves of Angola, and he shared in the profits of the business. From this evidence, the trial court could reasonably find that Dan and Lori operated Curves of Angola as a partnership.

II. Liability Under Lease Extensions

Dan next argues that, even if he had been in a partnership with Lori to operate the Curves franchise, his liability should be limited to the terms of the initial Lease, and to the lease extension that Dan signed, but not extended to the subsequent lease extension signed by Lori alone. Thus, Dan claims that the trial court erred in holding him liable for any damages after the end of the term of the first lease extension, i.e. December 31, 2007.

The trial court specifically found that Dan and Lori’s partnership was dissolved on May 4, 2007, when Lori filed for divorce. See Appellant’s App. p. 12 (“By filing the divorce petition on May 4, 2007, Lori clearly manifested her intention that her personal and business relationship with [Dan] had come to an end.”). Still, the trial court rejected Dan’s argument that he could not be held liable for Lori’s act of signing the subsequent lease extension on January 1, 2008, after the dissolution of the partnership.

The trial court correctly noted that, under certain circumstances, a partner can still bind the partnership even after a partnership has been dissolved. Indiana Code section 23-4-1-35 provides:

(1) After dissolution a partner can bind the partnership except as provided in paragraph (3):
(a) By any act appropriate for winding up partnership affairs or completing transactions unfinished at dissolution.
(b) By any transaction which would bind the partnership if dissolution had not taken place, provided the other party to the transaction:
(I) had extended credit to the partnership prior to dissolution and had no knowledge or notice of the dissolution; or
(II) though he had not so extended credit, had nevertheless known of the partnership prior to dissolution, and, having no knowledge or notice of dissolution, the fact of dissolution had not been advertised in a newspaper of general circulation in the place (or in each place if more than one) at which the partnership business was regularly carried on.
(2) The liability of a partner under paragraph (l)(b) shall be satisfied out of partnership assets alone when such partner had been prior to dissolution:
(a) unknown as a partner to the person with whom the contract is made; and
(b) so far unknown and inactive in partnership affairs that the business reputation of the partnership could not be said to have been in any degree due to his connection with it.
(3) The partnership is in no case bound by any act of a partner after dissolution:
(a) where the partnership is dissolved because it is unlawful to carry on the business, unless the act is appropriate for winding up partnership affairs; or
(b) where the partner has become bankrupt; or
(c) where the partner has no authority to wind up partnership affairs; except by a transaction with one who:
(I) had an extended credit to the partnership prior to dissolution and had no knowledge or notice of his want of authority; or
(II) had not extended credit to the partnership prior to dissolution, and, having no knowledge or notice of his want of authority, the fact of his want of authority has not been advertised in the manner provided for advertising the fact of dissolution in paragraph (l)(b)(II).
(4)Nothing in this section shall affect the liability under section 16 of this chapter of any person who after dissolution represents himself or consents to another representing him as a partner in a partnership engaged in carrying on business.

I.C. § 23-4-1-35 (emphasis added).

As the emphasized portion of this statute explains, even after a partnership has been dissolved, a partner may still bind the partnership by engaging in a transaction that would bind the partnership had it not been dissolved, if the other party to the transaction had known of the partnership prior to dissolution but had no knowledge or notice of the dissolution because “the fact of dissolution had not been advertised in a newspaper of general circulation in the place (or in each place if more than one) at which the partnership business was regularly carried on.” I.C. § 23-4-1-35(l)(b)(II).

Here, Lori’s execution of the second lease extension was continuing the business affairs of Curves of Angola and her execution of the second lease was done with authority that would have bound the partnership had it not been dissolved. See Life v. F.C. Tucker Co., Inc., 948 N.E.2d 346, 351 (Ind.Ct.App.2011) (noting the well-settled rule that partners are bound by the contracts of each other when made in the scope of the firm’s business). Nor did Dan ever inform Lori that she could not sign the second extension. Further, Dan and Lori held themselves out to the Landlord as partners operating Curves of Angola, and the Landlord had no notice of the dissolution until after Lori signed the second extension, because the fact of the dissolution had not been advertised in an appropriate newspaper and the record shows no other, actual knowledge by the Landlord.

Thus, the facts of this case fall precisely within the scope of Indiana Code section 23-4 — 1—35(l)(b)(II), and Lori could still act to bind Dan despite the fact that the partnership had been dissolved. And Dan admits that all partners are jointly and severally liable for everything chargeable to the partnership and jointly for all other debts and obligations of the partnership. See Ind.Code § 23-4-1-15(1). Therefore, the trial court did not clearly err in determining that Dan was liable for the amounts incurred under the second lease extension even though it was signed only by Lori.

Conclusion

The trial court did not clearly err in finding that Dan and Lori were in a partnership to operate Curves of Angola. Nor did the trial court clearly err in concluding that Dan was liable for damages under the second lease extension that was signed by Lori.

Affirmed.

KIRSCH, J., and CRONE, J., concur.

      . Indiana Code section 23-4-1-16 governs partnership by estoppel.

      . Dan also claims that he cannot be held liable for Lori's act of signing the second lease extension because the second lease extension materially altered the terms of the first lease and the first lease extension, that he did sign. However, Lori, as a partner, had the authority to enter into contracts and bind the partnership on her own. Again, it is well settled that partners are bound by the contracts of each other when made in the scope of the firm’s business. Life, 948 N.E.2d at 351. The fact that the second lease extension Lori signed was different than the lease and extension signed by Dan is irrelevant to the fact that Lori still had authority to bind the partnership.