author: BROWN, Judge.

text:
    Clifford and Judith Ann GARRETT, Appellants, v. Paul and Linda SPEAR, Appellees.
    No. 23A01-1303-PL-96.
    Court of Appeals of Indiana.
    Nov. 20, 2013.

      Jon P. McCarty, Covington, IN, Attorney for Appellants.
    Jill D. Wesch, Wallace Law Firm, Cov-ington, IN, Attorney for Appellees.
   OPINION

BROWN, Judge.

Clifford and Judith Ann Garrett (collectively, the "Garretts") appeal from the trial court's grant of summary judgment in favor of Paul and Linda Spear (collectively, the "Spears"). The Garretts raise two issues which we consolidate and restate as whether the court erred in granting summary judgment in favor of the Spears and denying their own summary judgment motion. We affirm.

FACTS AND PROCEDURAL HISTORY

As revealed by the designated evidence, the parties own adjacent parcels of land. The Spears own property known as 302 S. Range Street in Newtown, Indiana (the "Spear Property"), and the Garretts own property situated to the south of the Spear Property and known as 314 S. Range Street, Newtown, Indiana (the "Garrett Property"). The Spears purchased the Spear Property in December of 1978 and have occupied it since that time, and the Garretts purchased the Garrett Property from Georgia Gillis in 1986 pursuant to a contract for sale of real estate and took possession at that time. At the time Georgia was married to Don Gillis and had purchased the Garrett Property on March 21, 1983 from Ruth Pevier. Neither the Spears nor the Garretts had a survey performed at the time they purchased their respective properties.

At the time the Garretts purchased the Garrett Property from Georgia Gillis, there was fencing that existed separating the Garrett Property and the Spear Property, and at some point after the year 2000 the fencing was torn down by the Garretts. Also, in 1996 the Spears erected a garage and installed a driveway on what they believed to be their property. In or about 2010, the Garretts had a survey done of the Garrett Property. The survey revealed that the actual boundary between the Garrett Property and the Spear Property (the "Surveyed Boundary") was north of where the fence line had existed ("Fence Line Boundary"). The survey also showed that the garage erected by the Spears encroaches upon the Surveyed Boundary for the Garrett Property but is within the Spear Property based upon the Fence Line Boundary. Thereafter, the Garretts erected a cattle fence along the Surveyed Boundary which runs to the south edge of the Spears' garage.

On August 10, 2010, the Spears filed a complaint against the Garretts alleging Count I, quiet title by the doctrine of title by acquiescence; Count II, quiet title by adverse possession; Count III, prescriptive easement; and Count IV, trespass to land. In Count I, the Spears' complaint alleged that, in or around the spring of 1983, the Spears entered into an agreement with Georgia Gillis regarding the boundary between the Garrett Property and the Spear Property, specifically determining that such boundary would be one- and-a-half feet north of the then-existing fence that separated the two properties (ie., the Fence Line Boundary). The complaint stated that the Surveyed Boundary between the two properties is approximately twelve feet north of the Fence Line Boundary, and it alleged that the Spears, having "occupied, maintained and used the approximate twelve (12) foot strip as their property for over twenty seven (27) years by agreement and acquiescence of Gillis and her successor's [sic] in interest, the [Garretts]," are "entitled to quiet title to them with respect to that approximate twelve (12) foot strip of real estate...." Appellants' Appendix at 11-12. The complaint also indicated that in 1996 the Spears erected a garage and installed a driveway situated within the Fence Line Boundary, based upon the "implied understanding of the boundary between the two properties" and "in good faith and with full knowledge" of the Garretts. Id. at 10. On September 30, 2010, the Garretts filed their answer, affirmative defenses and counterclaims alleging five counts including Count I, to quiet title; Count II, trespass; Count III, ejectment; Count IV, trespass; and Count V, nuisance.

In the ensuing months, depositions were taken of Don Gillis, Clifford Garrett, Judith Garrett, and Paul Spear. Don Gillis testified in his deposition, given on October 29, 2010, that as far as maintaining the outside of the property, "[alnything outside[, Georgia] left it up to me." Id. at 65. When asked about the boundary between the Garrett Property and the Spear Property, Don testified that "there's a stake in the ground and we come straight down from the fence back there in the rear all the way straight down" and that the stake was "about a foot and a half over to [his] side of the fence ... where the fence used to be." Id. at 66. Specifically, Don stated that soon after he and Georgia moved onto the Garrett Property he installed a metal fence which he connected to another fence located at the western edge of both properties, which other fence had been installed prior to the Gillises living on the property. He also installed a second, wooden fence at the same time which "went right straight down the line" to the road from the same "fence that existed." Id. at 68. Don testified that the fence was "meant to be the separating point" between the two properties. Id.

Don testified that he mowed the south side of the fence and Linda Spear "put flowers ... and stuff" on the north side of it. Id. at 70. Don also indicated that after installing the fence neither he nor Georgia did "anything" or conducted any activity on the north side of the fence. Id. at 71. On eross-examination, Don admitted that he did not "really remember" where the fence had been located. Id. at 79. Don stated that around the time they purchased the Garrett Property Georgia "handled all the paperwork. I did the outside, the painting and everything else. She handled the paperwork. The bills and all." Id. at 90.

In his deposition Clifford Garrett testified that there had been a "redwood fence" between the two parcels, that it was on the Spear Property and the Spears maintained both sides of it, and that he did not recall a "wire fence." Id. at 105. Clifford stated that he removed the wooden redwood fence and that he did not recall when that occurred. He further testified that he installed a metal "cattle fence" at some point, that he did not recall when that occurred, and that he took it down at one point and similarly did not recall when, or why, he did so. Id. at 107.

Clifford also testified that he discussed the boundary of the Garrett Property with Georgia Gillis at the time of purchase. He indicated that Georgia told him the boundary was four to five feet north of the redwood fence, and that the fence was installed in such a way so that they could maintain the fence and paint it. Clifford testified that both his wife and Linda Spear tended to the flowers around the fence, and also that both the Garretts and the Spears would mow the grass on both sides of the fence. He also stated that Plaintiffs' Exhibit 3, a picture depicting vegetation where the flower beds had been, did not represent a line where the metal fence had been, and that the metal fence had been approximately four feet north of the line of vegetation. Regarding the garage built by the Spears, Clifford acknowledged that he did nothing to prevent them from erecting it at the time, noting that he believed that the garage may have encroached upon his land, but chose not to try to stop the construction because he didn't think he had "that kind of authority." Id. at 118.

Judith Garrett testified in her deposition that there were two fences in existence when they first moved onto the property, including a metal fence and a redwood fence. She testified that Georgia told them that the property line was north of the wooden fence because "she wanted to be able to maintain, paint. They even put brick on both sides for flower beds which were there so they had plenty of room to mow...." Id. at 126. She stated that Georgia and Don Gillis walked the Gar-retts around the property when it was purchased and pointed out "corner posts" and a "metal stake" as setting the border for the property, and she acknowledged that neither Georgia Gillis nor Don Gillis indicated in actual feet or inches where the border of the Garrett Property was in relation to the fence.

Judith testified that the old cattle fence existed down the line where vegetation is currently planted as depicted in Plaintiffs' Exhibit 3. She also testified that she planted flowers only on the south side of the fence and never did any landscaping on the north side. She stated that she and Clifford, with the help of a few others, removed both a metal fence and the wooden redwood fence at some point after the year 2000. She also indicated that she never tried to stop the Spears from constructing the garage because the Garretts and the Spears "were neighbors and friends at the time." Id. at 128.

Paul Spear testified in his deposition that, after Don erected the fencing in 1983, "the agreed upon line between me and Don Gillis was a foot and a half north of the fence." Id. at 1838. Paul indicated that he assisted Don in erecting the fence and, when they finished, Don told him "that they'd had it surveyed ... and that it was a foot and a half north of the fence...." Id. Paul also testified that there were only two fences that had been erected on the property-the one he and Don had put up in 1983 and the current cattle fence that runs up to the Spears' garage. Paul stated that Don wanted to leave a foot and a half north of the fence in order to maintain both sides of the fence, and that he never observed the Garretts maintaining property north of the vegetation until after they had a survey done in 2010. Paul indicated that he did not speak with Georgia about the property line but that she "didn't object to what we agreed on." Id. at 148. He also testified that the Garretts never mowed north of where the fence existed until after the 2010 survey and that the fence had been located down the line of vegetation as depicted in Plaintiffs' Exhibit 3.

On July 2012, the Spears filed a motion for summary judgment on their claims of title by acquiescence and adverse possession, and a memorandum in support and designation of evidence. On September 4, 2012 the Garretts filed their cross-motion partial for summary judgment, their response in opposition to the Spears' summary judgment motion, memorandum in support, and designation of evidence. As part of their designated evidence, the Gar-retts attached declarations of Clifford and Judith. In Clifford's declaration, he stated that Georgia Gillis had walked him around the property indicating that the northern boundary of the Garrett Property was where the southern edge of the Spears' driveway now exists.

Judith stated in her declaration that a telephone pole, which existed at the time they took possession of their property in 1986 and still exists, is situated north of and near the Fence Line Boundary. She stated that at some point in or around 1996, she spoke to Paul concerning a security light attached to the telephone pole, specifically concerning trees which were growing into the light and could potentially cause a fire. Judith stated that Paul told her that "the telephone pole and light were [the Garretts'] problem because they were on [the Garretts'] property." Id. at 199. She also stated that the Garretts thereafter had the security light removed from the telephone pole, and removed the trees from around the pole to prevent further problems. Paul had indicated in his deposition, however, that no such conversation ever took place.

On February 6, 2013, the trial court entered its order granting summary judgment in favor of the Spears and against the Garretts (the "Order"). The Order stated that "[the court's ruling is controlled by the doctrine of acquiescence and as such does not address the remaining theories of recovery espoused by [the Spears]." Id. at 8. The court ordered the Spears to "obtain and properly record a survey reflecting the boundary line that has been in existence since 1983 along the fence line by agreement between the Gil-lises' and Spears' property." Id. The court also ordered the Garretts to "remove any fence installed along said boundary that is now not compliant with this ruling" and gave the parties ninety days to comply. Id.

ISSUE / STANDARD OF REVIEW

When a trial court's ruling granting or denying summary judgment is challenged on appeal, the procedure and standard under Indiana law is clear. Our standard of review is the same as it is for the trial court. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind.2013) (citing Kroger Co. v. Plonski, 930 N.E.2d 1, 4 (Ind.2010)). The moving party "bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law." Id. (quoting Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind.2012)). Summary judgment is improper if the moving party fails to carry its burden, but if it succeeds, then the non-moving party must come forward with evidence establishing the existence of a genuine issue of material fact. Id. We construe all factual inferences in favor of the non-moving party and resolve all doubts as to the existence of a material issue against the moving party. Id. An appellate court reviewing a challenged trial court summary judgment ruling is limited to the designated evidence before the trial court, see Ind. Trial Rule 56(H), but is constrained to neither the claims and arguments presented at trial nor the rationale of the trial court ruling. Manley, 992 N.E.2d at 673.

The fact that the parties make cross-motions for summary judgment does not alter our standard of review. Huntington v. Riggs, 862 N.E.2d 1263, 1266 (Ind.Ct.App.2007), trams. denied. Instead, we must consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id.

DISCUSSION

The trial court granted summary judgment in favor of the Spears based upon the doctrine of title by acquiescence. This court has previously recognized that this doctrine is a theory of acquiring ownership over a disputed parcel of land which was popular at the turn of the twentieth century. Id. at 1267. The Indiana Supreme Court defined the doctrine as follows:

As a general rule, it is affirmed by the authorities that where owners of adjoining premises establish by agreement a boundary or dividing line between their lands, take and hold possession of their respective tracts, and improve the same in accordance with such division, each party, in the absence of fraud, will thereafter be estopped from asserting that the line so agreed upon and established is not the true boundary line, although the period of time which has elapsed since such line was established and possession taken is less than the statutory period of limitation. The general rule recognized by the authorities is that a boundary line located under such circumstances, in the absence of fraud, becomes binding on the owners establishing it, not on the principle that the title to the lands can be passed by parol, but for the reason that such owners have agreed permanently upon the limits of their respective premises and have acted in respect to such line, and have been controlled thereby, and therefore will not thereafter be permitted to repudiate their acts.... A valid agreement between owners of land locating a boundary line between them is binding upon each and all persons claiming under or through them, or either of them.

Id. (quoting Adams v. Betz, 167 Ind. 161, 169-170, 78 N.E. 649, 652 (1906) (internal citations omitted)).

This court further addressed the doctrine of title by acquiescence in Freiburger v. Fry, 489 N.E.2d 169 (Ind.Ct.App.1982), in which we held that "the Freiburgers were estopped from denying the Frys ownership over the land by reason of a boundary line agreement." Huntington, 862 N.E.2d at 1268 (citing Freiburger, 439 N.E.2d at 172). In so holding, this court clarified the doctrine as follows:

The line agreement need not be express and may be inferred from the parties' actions, but there must be evidence of some agreement as to the boundary line. Use and improvement of the land up to the alleged boundary line may be sufficient to satisfy the requirement of an agreement if the adjoining landowner acquiesces. Ownership of the land in this manner vests in the parties even though the property has not been held for the statutory period required under a theory of adverse possession.

Id. (quoting Freiburger, 439 N.E.2d at 172-173).

Judge Friedlander authored a concurring opinion in Huntington, which was joined by the other two judges on the panel, in order "to stress the limited and specific applicability of the concept of title by acquiescence, and to underscore the relationship, or lack thereof, of that doctrine to the law of adverse possession." Id. at 1271 (Friedlander, J., concurring). In his concurrence, Judge Friedlander discussed the case of Wingler v. Simpson, 93 Ind. 201 (1884), in which the Indiana Supreme Court invoked the doctrine of title by acquiescence, ruling "that the parties' actions proved that the original establishment of the boundary accurately reflected the intent of the parties in completing the transfer of property." Id. at 1272. In- so holding, the Wingler Court underscored the policy of the doctrine, stating:

Parol evidence is admissible to prove the former existence, identity and location of ancient monuments since removed, such as marked trees and stones, indicative of the location of lines and corners; and we see no reason why the acts of the interested parties, contemporaneous with the alleged existence of the monuments, as tending to prove their existence, should not be also admissible in evidence. If the possession and improvement up to a recognized line for twenty years should not be held conclusive upon the parties, they certainly would have a tendency to prove an implied agreement that should be acquiesced in after that time, or that that was the true line, and would in either event be admissible in evidence, and should be considered by the court or jury in determining whether the survey was correct.

Id. (quoting Wingler, 93 Ind. at 201). Based upon the Court's reasoning, Judge Friedlander observed that Wingler:

did not establish a new doctrine that would stand shoulder-to-shoulder with adverse possession as an alternate principle by which real property that is properly titled in one party may pass to another party merely through the latter party's actions. Rather, it merely established that if parties to a land transfer agree that a boundary is in a certain place and both parties use the land consistent with that agreement for a long enough period of time, they cannot later deny the existence of the agreed-upon boundary in lieu of a more favorable placement (from the complaining party's perspective).

Id. at 1272-1273.

After discussing another case from the Indiana Supreme Court, Ball v. Cox, 7 Ind. 453 (1856), which Judge Friedlander identified as "the oldest Indiana decision I can find on the subject," id. at 1273, he underscored that "acquiescence is not a separate theory for acquiring ownership of another person's real property not by providing compensation," and "[it does not stand with the doctrine of adverse possession as an alternate theory to be applied in the same circumstances as adverse possession." Id. at 1274. He then identified the following analysis and test:

Rather, acquiescence applies only when a specific set of cireumstances exists-circumstances in which adverse possession does not apply. That set of cireum-stances is this: Two adjoining property owners (1) share a good-faith belief concerning the location of the common boundary line that separates their properties and, (2) although the agreed-upon location is not in fact the actual boundary, (8) use their properties as if that boundary was the actual boundary (4) for a period of at least twenty years. It is the original agreement between the adjoining owners that takes this and all other "acquiescence" cases out of the realm of adverse possession.

Id.

The Garretts argue that the Spears failed to produce evidence of any agreement between them and Georgia Gil-lis, the owner of the Garrett Property pri- or to the Garretts, and instead "relied exclusively on the purported agreement between Mr. Spear and Mr. Gillis" Appellants' Brief at 10. The Garretts argue that "allowing agreements between non-owners to support a claim for acquiescence could potentially open the door for mere tenants to make such agreements that would bind unsuspecting purchasers...." Id. They contend that "[the undisputed record evidence also showed that three years after ... the alleged agreement ... the Garretts took possession of the property ... and thereafter routinely cared for and maintained the land the Spears seek to acquire by acquiescence, and removed the fence separating the properties." Id. at 11. Accordingly, they posit that summary judgment should have been entered in their favor, noting that "a claim for acquiescence requires ... use by said landowners ... as if that boundary was the actual boundary 'for a period of at least twenty years'" Id. (quoting Huntington, 862 N.E.2d at 1274). The Gar-retts also argue that "[alt a minimum, there existed disputed issues of material fact that precluded the entry of summary judgment in favor of the Spears," including the existence of an agreement between Mr. Gillis and the Spears and the location of "the alleged 'new' boundary." Id. at 12. Finally, the Garretts argue that the court erred in not granting their summary judgment motion on the Spears' adverse possession claim, noting that the record "contains no evidence ... that the Spears exercised or intended to exercise exclusive possession over the Garretts property" or that the Spears "paid, intended to pay, or believed that they were paying, the taxes on the disputed tract." Id. at 13-14.

The Spears argue that Don testified that "he was basically in charge of the decisions regarding the outside premises, including erecting a metal fence in 1983 ... with the help of Paul Spear," that Paul and Don "agreed that the metal fence they erected would be used to locate the boundary between the two tracts as being one and one half feet north of the metal fence," and that "title by acquiescence was complete at the time of the erection of the fence in 1983." Appellees Brief at 11-12. The Spears assert that a boundary line agreement pursuant to the doctrine of title by acquiescence may be inferred from the party's actions, and "[the use and improvement of the land by the Spears and the Gillises up to the metal fence line subsequent to the erection of the fence may be sufficient to satisfy the requirement of an agreement with Georgia ... if she is determined by her actions or inac-tions to acquiesce in the agreement," noting also that the Garretts failed to show any evidence that Georgia ever disagreed with this new boundary or acted in contravention of it. Id. at 12. The Spears also maintain that after the Garretts took possession of the property, they voluntarily left the metal fence up until sometime after the year 2000, and while they contend "that they believed the true boundary to be much farther north of the existing fence, they did nothing to assert their perceived rights to the real estate north of the fence until the filing of this action in 2010...." Id. at 18. The Spears highlight that "the Garretts did absolutely nothing to ascertain the location of the true boundary or to stop the construction [of the Spears' garage in 1996] and essentially acquiesced in the location of the garage until the survey and lawsuit in 2010." Id. at 14. Finally, the Spears quote that "equity aids the vigilant, not those who slumber on their rights." Id. (citing Citizens Nat. Bank v. Judy, 146 Ind. 322, 43 N.E. 259, 263 (1896)).

DECISION

Initially, we observe that to the extent the Garretts challenge the court's grant of summary judgment based upon the fact that it was Don Gillis who erected the fence in 1983 and discussed with Paul Spear that the boundary was one and a half feet north of such fence, we disagree with that challenge. Even assuming that Don Gillis, who was married to Georgia Gillis at the time Georgia became the title holder to the Garrett Property, is not considered a "property owner" for acquiescence purposes, it is undisputed that Georgia did not take issue with the installation of the fence by her husband. As noted above, acquiescence "need not be express and may be inferred from the parties' actions." Huntington, 862 N.E.2d at 1268. Under the cireumstances, in which Don, the member of the Gillis household who maintained the outdoor areas of the property and was married to Georgia, the title holder, constructed a fence and came to an agreement with Paul Spear as to where the boundary of between the parcels was, we find that such agreement was sufficient to invoke the doctrine of title by acquiescence.

We next find that the Fence Line Boundary has been established as the boundary between the Garrett Property and the Spear Property by the doctrine of title by acquiescence. It is undisputed that fencing was erected in 1983 and that, in the ensuing years, this fence operated as a boundary between the two parcels. The Spears, in 1996, built a garage and driveway based upon this boundary, and such was not challenged by the Garretts until 2010, or twenty-seven years following the installation of the fencing. Members of both households testified at their depositions that this fencing, which the Gar-retts removed sometime following the year 2000, existed down a line of vegetation which currently exists and is memorialized by photographs contained in the designated evidence, including Plaintiffs' Exhibit 3. Judith Garrett stated at her deposition that during the existence of the fence, she planted flowers only on the south side of the fence and never did any landscaping on the north side of the fence. Paul stated that the Garretts did not maintain the property north of the vegetation until after the 2010 survey. Despite the fact that Paul and Clifford disagree about whether the Garretts mowed the grass north of the fence during the fence's existence, we do not find that this fact alone establishes a genuine issue of material fact as to whether the Fence Line Boundary was accepted as the boundary between the parcels until 2010, in light of the totality of the designated evidence, including, notably, the placement of the Spears' garage and driveway.

As the Indiana Supreme Court held in Adams, "where owners of adjoining premises establish by agreement a boundary ... and improve the same in accordance with such division, each party, in the absence of fraud, will thereafter be estopped from asserting that the line so agreed upon and established is not the true boundary line...." 167 Ind. at 169-170, 78 N.E. at 652 (emphasis added). We find, based upon the designated evidence, that this is precisely what took place. Accordingly, we conclude that the court did not err in granting summary judgment to the Spears based upon the doctrine of title by acquiescence. See also Roberts v. Feitz, 933 N.E.2d 466, 484 (Ind.Ct.App.2010) (holding that "[the Feitzes acted in reliance on Papezynieski's acquiescence of the boundary line and as a result, they made improvements to the land," and that, accordingly, "[blecause Papezynieski agreed on the boundary line between his property and what would become the Feitzes property, that agreement is binding on the Roberts and all others who subsequently aequire the land from them").

CONCLUSION

For the foregoing reasons, we affirm the trial court's grant of summary judgment in favor of the Spears and against the Garretts.

Affirmed.

NAJAM, J., and MATHIAS, J., concur.

      . Specifically, the Garretts entered into a contract with Georgia Gillis to purchase the property on April 7, 1986. In December of 1994, Georgia filed a complaint to foreclose upon the Garrett Property, stating that the Garretts had not made payment since August of that year and still owed $43,000 on the contract. On February 8, 1995, the Fountain Circuit Court entered a finding and judgment foreclosing the Garretts' interest and claim in the Garrett Property. On March 23, 1995, the Garretts filed a notice of bankruptcy in the Fountain Circuit Court stating that Clifford had filed a Voluntary Petition for Relief under Chapter 13 of the Bankruptcy Code on March 6, 1995. On September 28, 1995, the bankruptcy court lifted the stay against Georgia's foreclosure action. On November 18, 1995, Georgia conveyed the Garrett Property by warranty deed to the Garretts for the sum of $1.00.

      . Georgia Gillis died in 2002. Don Gillis is not named on the warranty deeds conveying the Garrett Property from Ruth Pevler to Georgia Gillis or conveying the Garrett Property from Georgia Gillis to the Garretts. The Spears acknowledge that Don Gillis "was not a legal title holder to the Garrett Property at any time.'" Appellees' Brief at 11 n. 2.

      . When presented with a photograph depicting the disputed boundary area between the properties as it currently existed and asked to mark where the fence used to be, Don stated that "[the son-of-a-bitch tore it out is what he did," and later noted that he was referring to Clifford Garrett. Appellants' Appendix at 74. Don also stated that he did not like Clifford, that he would like to see the Spears win the case, that Clifford was not an honest person, and that "[if it was me [the] son-of-a-bitch would be dead." Id. at 92.

      . We have observed that by "the forties and fifties when the doctrine of adverse possession became slowly more developed, the doctrine of acquiescence became less frequently used until it disappeared out of the case law altogether in the sixties and seventies," until 1982 in the case of Freiburger v. Fry, 439 N.E.2d 169 (Ind.Ct.App.1982). Huntington, 862 N.E.2d at 1267-1268.

      . In the facts section of their brief, the Gar-retts note that Georgia Gillis "filed a complaint against the Garretts in the Fountain Circuit Court for non-payment on the Contract" and, in that filing, "made no allegations that the Garretts had purchased ... less than the entirety of the property described in the deed she provided the Garretts, or that she had entered into an agreement with the Spears concerning the Northern boundary of the property prior to selling it to the Gar-retts." Appellants' Brief at 4-5. The Gar-retts also note that the court ruled in favor of Georgia and, in so doing, found that the Gar-retts had purchased the entirety of the Garrett Property. They further note that the bankruptcy court, in lifting the stay in favor or Georgia, "described the entirety of the property described in the deed Ms. Gillis provided the Garretts" and "made no mention of an agreement between Ms. Gillis and the Spears, or that the Northern boundary of the Garrett Property was different from the property description in the deed Ms. Gillis provided the Garretts." Id. at 5. Based upon such facts, the Garretts argue that when Georgia filed suit to have the Garretts ejected for nonpayment and to foreclose, made no allegations that she sold the Garretts less [than] the entirety of said property" and "[slurely she would not have misrepresented the nature of the purchase to the circuit court, or to the Bankruptcy Court thereafter, if there existed an agreement regarding a 'new' boundary as the Spears claim." Id. at 11.
      We are not persuaded by the Garretts' argument. As noted above, the doctrine of title by acquiescence is invoked under circumstances in which two property owners share a good faith belief and agree on where the boundary between their parcels lies, which turns out to be inaccurate, for a period of at least twenty years, and that the property owners use that boundary as if it is the actual boundary. Thus, the agreed-upon boundary for acquiescence purposes is based upon a misunderstanding by the property owners, rather than an attempt by the property owners to change the boundary between the parcels by an agreement based upon full knowledge of where the true boundary lies.

      . We are not persuaded by the Garretts' argument that "allowing agreements between non-owners to support a claim for acquiescence could potentially open the door for mere tenants to make such agreements that would bind unsuspecting purchasers," Appellants' Brief at 10, under the circumstances presented by this case. Don Gillis was married to Georgia Gillis, the title holder, and Georgia lived on the property in which the fence was constructed. Also, following its construction, neither Don nor Georgia did "anything" or conduct any activity on the north side of the fence. Transcript at 71.

      . We note that the trial court ordered the Spears to "obtain and properly record a survey reflecting the boundary line that has been in existence since 1983 along the fence line installed by agreement...." Appellants' Appendix at 8. We wish to clarify that, based upon the designated evidence, such boundary shall be one-and-one-half feet to the north of the fence line.

      . We note that because we affirm the court's order on summary judgment, we need not address the Garretts' arguments regarding the Spears' adverse possession claim.


source: Caselaw Access Project

author: CRONE, Judge. BARNES, Judge,

license: Public Domain

text:
    Evan LEEDY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1303-CR-102.
    Court of Appeals of Indiana.
    Nov. 26, 2013.
    Rehearing Denied Jan. 28, 2014.

      Patricia Caress McMath, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

The State charged Evan Leedy with four felony counts of operating while intoxicated ("OWI") stemming from an automobile accident in which his girlfriend was killed and another motorist was seriously injured. The defense sought to have him declared incompetent to stand trial, and the trial court found him incompetent and committed him to the Division of Mental Health and Addiction ("DMHA") pursuant to Indiana Code Section 35-36-3-1. Leedy sought review via interlocutory appeal, and the trial court stayed his commitment pending our review. Finding that the trial court followed the statutory procedure and that the statute does not run afoul of Leedy's due process rights, we affirm.

Facts and Procedural History

Late one night in February 2012, Leedy was driving about eighty miles per hour with his girlfriend on an Indianapolis street. His blood alcohol content ("BAC") was .15, and he ran a red light, colliding with a pickup truck. Leedy's girlfriend died shortly thereafter, and the driver of the truck suffered serious injuries. Leedy suffered a brain injury and was comatose for about a month. The State charged him with class B felony OWI with a BAC of at least .15 causing death, class C felony OWI causing death, class D felony OWI causing serious bodily injury, and class D felony OWI with a BAC of at least .08 causing serious bodily injury.

In May 2012, Leedy filed a motion for competency and sanity evaluation to determine whether he was competent to stand trial. He underwent mental evaluations with court-appointed psychiatrist Dr. George Parker and court-appointed clinical psychologist Dr. Shelvy Keglar. The doctors submitted reports to the trial court, which conducted a series of competency hearings. At the hearings, both doctors testified that Leedy could not understand the nature of the charges and proceedings against him and could not assist his counsel in conducting his defense. The doctors testified concerning Leedy's need of physical and occupational therapy. They further testified concerning the various services available at the state psychiatric hospitals, with the Logansport State Hospital ("Logansport") focusing on competency evaluations for criminals awaiting trial and housing mostly patients with mental illness and disability rather than those with traumatic brain injuries. Dr. Parker testified that he was not optimistic about Leedy's chances of being restored to competency. Dr. Keglar testified that with a cognitive rehabilitation program, Leedy could possibly be restored to competency within one to two years. The trial court took the matter under advisement and set another hearing to hear testimony from representatives of DMHA.

At a November 2012 hearing, the medical director of Logansport, Dr. Danny Meadows, testified that although most of the patients at the facility suffer from mental illness or disability rather than from traumatic brain injury, he and his colleagues had treated patients similarly situated to Leedy. He also testified that while the success rate for competency restoration is lower for patients with Leedy's type of injury than for mental illness patients, Logansport would be capable of evaluating Leedy and attempting restoration services Additionally, he reported that any therapeutic services that Leedy would need that were not provided at Lo-gansport would be outsourced to area professionals. He stressed that it would be Logansport's responsibility to meet all of Leedy's clinical needs and that Logansport personnel would transport him for outsourced services. Finally, he testified that while the Larue D. Carter Memorial Hospital ("Larue Carter") in Indianapolis was more geared to handle brain injury patients in need of physical or speech therapy, Logansport was specifically geared toward treating patients awaiting trial on criminal charges and that the Logansport experts could possibly know within six months whether Leedy could be restored to competency.

DMHA chief counsel Katherine Gregory testified concerning the procedures for determining which of the state psychiatric facilities best meets the needs of a given patient. She stated that although Logans-port would be the most routine placement for Leedy, DMHA would make an effort to place him where his specific needs could best be met. She also referenced the ef-feet of DMHA's funding constraints on outpatient restoration services.

At the close of the hearing, the trial court determined that Leedy was incompetent to stand trial and committed him to DMHA pursuant to Indiana Code Section 35-36-3-1(b). The trial court stayed the commitment order so that the parties could submit briefs concerning Leedy's challenge to the constitutionality of the commitment statute. At a hearing on January 4, 2013, the trial court denied Leedy's motion to declare the statute unconstitutional. However, the court again stayed the commitment order pending Leedy's pursuit of an interlocutory appeal, which we accepted.

Discussion and Decision

Leedy contends that his commitment to DMHA pursuant to Indiana Code Section 35-36-3-1 violates his due process rights. Because it presents a question of law, we review a matter of statutory interpretation using a de novo standard. Sloan v. State, 947 N.E.2d 917, 921 (Ind.2011). When interpreting a statute, our goal is to determine and give effect to the legislature's intent in promulgating it. Ryan v. State, 900 N.E.2d 43, 44-45 (Ind.Ct.App.2009). Thus, we begin by examining the language of the statute, presuming that the words were selected to express their common and ordinary meanings. Id. at 45. Where the statute is unambiguous, we accord each word and phrase its plain, ordinary, and usual meaning, without having to resort to rules of construction to decipher meanings. Id.

Leedy essentially raises due process challenges to both the statute itself and the trial court's action in committing him pursuant to the statute. Indiana Code Section 35-86-3-1 provides a mechanism for determining whether a defendant is competent to stand trial, stating in pertinent part,

(a) If at any time before the final submission of any criminal case to the court or the jury trying the case, the court has reasonable grounds for believing that the defendant lacks the ability to understand the proceedings and assist in the preparation of a defense, the court shall immediately fix a time for a hearing to determine whether the defendant has that ability. The court shall appoint two (2) or three (8) competent, disinterested:
(1) psychiatrists;
(2) psychologists endorsed by the Indiana state board of examiners in psychology as health service providers in psychology; or
(8) physicians;
who have expertise in determining competency.
.... The individuals who are appointed shall examine the defendant and testify at the hearing as to whether the defendant can understand the proceedings and assist in the preparation of the defendant's defense.
(b) At the hearing, other evidence relevant to whether the defendant has the ability to understand the proceedings and assist in the preparation of the defendant's defense may be introduced. If the court finds that the defendant has the ability to understand the proceedings and assist in the preparation of the defendant's defense, the trial shall proceed. If the court finds that the defendant lacks this ability, it shall delay or continue the trial and order the defendant committed to [DMHA]J. [DMHA] shall provide competency restoration services or enter into a contract for the provision of competency restoration services by a third party in the:
(1) location where the defendant currently resides; or
(2) least restrictive setting appropriate to the needs of the defendant and the safety of the defendant and others.

(Emphasis added.)

Although Leedy acknowledges the mandatory language contained in subsection (b), he asserts that after the trial court made the incompetency finding, it nonetheless violated his due process rights by ordering his commitment to DMHA. In this vein, Leedy essentially asserts that the statute is unconstitutional as applied to him. f

Involuntary commitment is a clear deprivation of a defendant's liberty and can only be justified on the basis of legitimate state interests. Curtis v. State, 948 N.E.2d 1143, 1153 (Ind.2011).

The State has dual interests in committing an incompetent defendant: (1) to restore the accused to competency due to the right of the public and the defendant to the prompt disposition of erimi-nal charges pending against him and (2) to protect the defendant against being required to answer to charges that [he] lacks the capacity to understand or to assist [his] attorney in defending against [the charges].

Id. at 1154 (citation and internal quotation marks omitted). "Commitment of an accused thus focuses on the State's interest in the accused's restoration to competency and necessarily entails a finding of probability that the accused can be so restored." State v. Davis, 898 N.E.2d 281, 289 (Ind.2008).

The statute clearly states that the determination concerning the probability of restoring a defendant's competency is made by DMHA or contracted third party service provider. Indiana Code Section 35-36-3-38(a) gives the superintendent of the institution where the defendant is committed or the director of the third party contractor ninety days to certify to the trial court "whether the defendant has a substantial probability of attaining the ability to understand the proceedings and assist in the preparation of the defendant's defense within the foreseeable future." Subsection (b) outlines how DMHA or a third party contractor must proceed if a substantial probability does or does not exist. See Ind.Code § 35-36-3-3(b) (if substantial probability does not exist, initiate regular commitment proceedings; if substantial probability does exist, retain defendant until he attains competency or for six months, whichever occurs first).

Leedy essentially argues that Indiana Code Section 35-36-3-1 is unconstitutional as applied to him because it is specifically geared toward those with mental illness or disability and not to defendants who, like himself, are incompetent due to traumatic brain injury. At the outset, we note that there is nothing in the statutory language indicating such a distinction based on the source of a defendant's incompetency. To the extent that the source of his incompetency may affect his statistical probability of restoration, it is relevant in making that determination.

As support for his due process argument, Leedy relies on three cases. In the first, Davis, our supreme court held that it is a violation of due process not to dismiss criminal charges against an incompetent defendant where experts opined that the defendant could not be restored to competency due to her paranoid schizophrenia and where her accrued period of commitment had exceeded the maximum possible confinement in the event of an eventual conviction. 898 N.E.2d at 283-84. Here, Leedy does not seek to have the charges dismissed. Moreover, because the trial court stayed the commitment order pending the filing of this interlocutory appeal, Leedy is not in the custody of DMHA, but rather is living with his mother. Finally, as discussed below, the evidence is conflicting concerning Leedy's chances of being restored to competence. As such, Davis is factually distinguishable.

Leedy also relies on Curtis, which involved a fifty-nine-year-old developmentally disabled defendant seeking dismissal of charges of residential entry, battery, and criminal mischief. 948 N.E.2d at 1146. Although the trial court ordered a competency evaluation in which one of two experts determined that Curtis could never be restored to competency due to dementia and the other found restoration unlikely, the trial court never actually made an incompetency finding and never committed the defendant to DMHA. Id. at 1153. Curtis claimed that the failure to dismiss the charges pending against him violated his due process rights. Id. at 1151. Our supreme court dismissed Curtis's charges not on due process grounds, but on the basis of Indiana Criminal Rule 4(C). Id. at 1154. With respect to Curtis's due process argument, our supreme court specifically stated that our statutes control the appropriate way to determine incompetency to stand trial and probability of restoration and that the procedures outlined therein "establish a comprehensive method that balances the various interests at stake." Id. at 1158. "If the trial court finds a defendant incompetent, the trial court must commit the defendant to the DMHA, and the DMHA must provide competency services." Id. The Curtis court held that "(there is no viable fundamental-fairness argument when Curtis has not been involuntarily committed and there has been no appropriate finding [by DMHA] that he will never be restored to competency." Id. at 1154. Thus, despite the factual and procedural distinctions between Curtis and the present case, what we can glean from Curtis is that our supreme court requires adherence to the clear language of the statute concerning who shall make the determination concerning a defendant's probability of regaining competency: DMHA.

In support of his argument that the trial court is nevertheless not required to commit him to DMHA, Leedy cites a very recent decision by another panel of this Court, State v. Coats, 981 N.E.2d 1273 (Ind.Ct.App.2013), trans. granted. There, an elderly man with Alzheimer's disease was charged with the sexual battery of his granddaughter. The experts assigned to assess the defendant's competency to stand trial both testified that due to the progressive nature of his dementia, there was little chance of his ever being restored to competency. The trial court designated Coats incompetent and found that he "will not return to competency." Id. at 1275. The trial court did not commit him to DMHA and determined that he could continue to reside with his wife. The State did not dispute the finding of incompetence but challenged the trial court's decision not to commit Coats to a DMHA facility, arguing that the mandatory statutory language forecloses any discretion by the trial court to do anything except commit a defendant once it has made an incompetency finding. Id. at 1276. The Coats majority affirmed the trial court's denial of the State's motion to commit Coats, specifically noting the procedures outlined in the statute, but holding that "the purposes of the competency restoration process cannot be met by following those procedures here." Id. at 1278. In her dissent, Judge Riley focused on the delineation of duties outlined in the statute: "The trial court determines whether the defendant is incompetent in the first instance, but the statutory scheme entrusts the ultimate determination on competency to the [DMHA] superintendent, who has not only the skills to make such observations but also the time within which to do so." Id. at 1280 (Riley, J., dissenting).

Here, Leedy concedes that "there has not been a finding that [he] is not restora-ble." Appellant's Br. at 8, n.6. Rather, he asserts that he "must get therapies DMHA cannot provide if there is to be any hope of restoration." Id. With respect to the restoration issue, we note the following: (1) the trial court did not make any specific finding concerning Leedy's chances at restoration (assuming arguendo that such a finding would have had any legal effect, given the language of the statute); (2) the expert testimony presented at the competency hearing was conflicting concerning the probability of his restoration (with Dr. Parker stating that he was not optimistic about restoration and Dr. Keglar stating that with a cognitive rehabilitation program, Leedy had a possibility of restored competency within one to two years); (8) beyond the fact that there is no specific language in the statute distinguishing between the various sources of incompetency, ie., mental illness versus traumatic brain injury, the experts' testimony that the restoration success rate is statistically higher in mental illness patients did not preclude restoration in the eases involving traumatic brain injury; (4) because the trial court stayed its commitment order pending this interlocutory appeal, DMHA has not had Leedy in its care and custody, and as such, has not even had the statutory ninety days during which to evaluate his chances of restoration; and (5) the evidence was inconclusive regarding the effect of any DMHA funding constraints upon Leedy's receipt of therapeutic services necessary to restore his competency (at the competency hearing, Gregory briefly referenced DMHA funding constraints; however, both she and Dr. Meadows testified that it is the duty of DMHA and the assigned facility to ensure that all of Leedy's clinical needs will be met). Tr. at 142, 157.

Simply put, Leedy's due process arguments are based on speculation concerning both DMHA's ability to provide him with the necessary therapeutic services and his own cognitive responses to those services. Essentially, he has asked us to reweigh evidence and make a conclusion that the legislature has specifically delegated to experts in the field of mental competency, a determination that is made after a period of providing services and evaluating the patient/accused. This is precisely why the General Assembly outlined such specific procedures, recognizing the delicate balance that exists between the fundamental fairness owed to the accused and the interests of both the public and the accused in the prompt disposition of criminal charges. Based on the foregoing, we conclude that the commitment statute is not unconstitutional as applied to Leedy and that the trial court did not violate Leedy's due process rights in ordering his commitment to DMHA. Accordingly, we affirm.

Affirmed.

PYLE, J., concurs.

BARNES, J., concurs with separate opinion.

BARNES, Judge,

concurring.

I concur with the majority's analysis. However, I write separately to emphasize and highlight what I believe are inadequa-cles that our State's mental health system displays here. On the one hand, representatives from Logansport testified that that hospital was capable of providing the "restorative services" that Leedy requires, albeit it would likely require the use of third-party providers outside of the hospital itself. That is because Logansport is better-suited for treatment of mental illness, not traumatic brain injuries. On the other hand, the chief counsel for DMHA testified regarding the "constraints" her agency faces regarding outpatient restorative services. In other words, no or very limited money is available for these services.

All agree that the Larue Center in Indianapolis is better-suited to handle the specific type of brain injuries Leedy sustained. I would respectfully, but strongly, suggest that DMHA focus on securing the best and most appropriate treatment for Leedy-wherever that might be. Without providing the best possible services for competency treatment, evaluation, and restoration (if possible), DMHA and the State would possibly be delaying ultimate resolution of this case at the expense of Leedy, his family, the victims, and families of the victims of Leedy's alleged crimes.

      . During the pendency of the proceedings, Leedy was living at home with his mother.

      . Leedy does not challenge the procedure followed by the trial court in conducting the competency hearings under subsection (a).

      . As outlined in Indiana Code Article 12-26.

      . Notably, the trial court denied the State's motion to have Curtis committed to DMHA based on its determination that the State's interest in restoring Curtis could not be accomplished.

      . See Ind. Criminal Rule 4(C) (stating that no person shall be held to answer criminal charge for longer than one year from the date of charge or arrest).

      . Our supreme court heard oral argument on Coats on November 7, 2013.


author: FISHER, Senior Judge.

text:
    Virginia GARWOOD, Petitioner, v. INDIANA DEPARTMENT OF STATE REVENUE, Respondent.
    No. 82T10-1208-TA-46.
    Tax Court of Indiana.
    Oct. 31, 2013.

      Stacy K. Newton, Rudolph, Fine, Porter & Johnson, LLP, Evansville, IN, Attorney for Petitioner.
    Gregory F. Zoeller, Attorney General of Indiana, Thomas D. Cameron, Deputy Attorney General, Indianapolis, IN, Attorneys for Respondent.
   ORDER ON RESPONDENTS MOTION TO DISMISS

FISHER, Senior Judge.

Virginia Garwood has filed her second appeal with this Court. The Indiana Department of State Revenue has moved to dismiss her appeal, claiming that the Court lacks subject matter jurisdiction and that the same action is pending in the Harrison Cireuit Court. The Court, finding the subject matter jurisdiction issue dispositive, denies the Department's Motion to Dismiss.

FACTS AND PROCEDURAL HISTORY

The events giving rise to Garwood's see-ond appeal began on June 2, 2009, when the Department served Garwood and her daughter, Kristen, with several jeopardy tax assessments. The jeopardy tax assessments provided that Garwood and Kristen owed over $250,000 in sales tax, interest, and penalties on their sales of dogs for the January 1, 2007 through April 30, 2009 tax period. After Garwood and her daughter indicated that they could not immediately pay the liability, the Department seized all 240 dogs on their premises pursuant to jeopardy tax warrants.

On June 3, 2009, the Department sold all 240 of the seized dogs to the U.S. Humane Society for a total of $300.00. The Department subsequently applied $175.48 to Garwood's purported tax liability.

On June 29, 2009, after completing the administrative protest process, Garwood filed her first appeal with this Court. The Department moved to dismiss that appeal on the basis that the Court lacked subject matter jurisdiction and that the same action was pending in the Harrison Circuit Court. This Court denied that motion. See generally Garwood v. Indiana Dep't of State Revenue (Garwood I), 939 N.E.2d 1150 (Ind. Tax Ct.2010).

On May 16, 2011, Garwood filed with the Harrison Circuit Court a Verified Complaint for Damages alleging, among other things, that the Department had violated her constitutionally guaranteed due process and equal protection rights in issuing and administering the jeopardy tax assessments and warrants. (See Resp't Des'g Evid., Vol. 1, Ex. 2 ¶¶ 1-58.) Given the alleged harm, Garwood requested that a jury award her actual, general, special, compensatory, and punitive damages as well as court costs and attorney fees. (Resp't Des'g Evid., Vol. 1, Ex. 2 at 11, 12, 16.)

On August 19, 2011, this Court affirmed its holding in Garwood I and determined that the jeopardy assessments were void as a matter of law because they were not issued in accordance with Indiana Code § 6-8.1-5-3. See Garwood v. Indiana Dep't of State Revenue, 953 N.E.2d 682, 683 n. 3, 687-90 (Ind. Tax Ct.2011) (Garwood II), review denied. Nonetheless, the Court noted that the Department could still pursue other tax collection methods with respect to Garwood's purported tax liability. See id. at 690 n. 16.

On August 29, 2011, Garwood filed a one-page written document with the Department requesting a refund of $122,684.50. (See Pet'r Pet. ¶ 3, Ex. A at 3.) While that claim was pending, the Department filed with the Indiana Supreme Court a Petition for Review of Garwood II. (See generally Pet'r Resp. Resp't Mot. Dismiss ("Pet'r Resp. Br."), Ex. H.) The Indiana Supreme Court granted the Department's Petition for Review; five days after oral argument, however, the Supreme Court vacated its order granting review because it had been "improvidently" granted. Indiana Dep't of State Revenue v. Garwood, 966 N.E.2d 1258, 1258 (Ind.2012).

On May 29, 2012, the Department sent a letter to Garwood informing her that she would "be receiving a check from the Indiana Department of Revenue in the amount of $175.48" because she overpaid sales tax for the 2007 and a portion of the 2009 tax periods. (See Pet'r Pet., Ex. B at 1.) Garwood received the check at some point in June 2012. (Pet'r Pet. 19.) The next month, the Department issued several proposed assessments to Garwood, providing that she owed nearly $60,000 in sales tax, interest, and penalties for the January 1, 2007 through June 30, 2009 tax period. (See Resp't Des'g Evid., Vol. 2, Ex. 5 at 1-7, Ex. 6 at 1.) One of the proposed assessments, however, provided that the Department had already refunded $150 to Garwood for the 2007 tax period. (Resp't Des'g Evid., Vol. 2, Ex. 5 at 1.) Garwood protested the proposed assessments; although the Department has held an administrative hearing on her protest, it has not issued a final determination thereon. (See Resp't Des'g Evid., Vol.2, Ex. 6 at 1; Hr'g Tr. at 14.)

On August 27, 2012, Garwood filed her second appeal with this Court, claiming that the Department has failed to rule on the claim that she filed with the Department on August 29, 2011. (See Pet'r Pet. ¶¶ 3-4, 9.) On June 13, 2013, the Department filed a Motion to Dismiss, which this order addresses. The Court held a hearing on September 26, 2013. Additional facts will be supplied as necessary.

STANDARD OF REVIEW

When ruling on a motion to dismiss for lack of subject matter jurisdiction, this Court may consider the petition, the motion, and any supporting affidavits or evidence. See GKN Co. v. Magness, 744 N.E.2d 397, 400 (Ind.2001); Borgman v. State Farm Ins. Co., 713 N.E.2d 851, 854 (Ind.Ct.App.1999), trans. denied. Furthermore, the Court may weigh the evidence to determine the existence of requisite jurisdictional facts, resolve factual disputes, and devise procedures to ferret out the facts pertinent to jurisdiction. See GKN Co., 744 N.E.2d at 400; Borgman, 713 N.E.2d at 854.

LAW

Subject matter jurisdiction, the power of a court to hear and determine a particular class of cases, can only be conferred upon a court by the Indiana Constitution or by statute. See K.S. v. State, 849 N.E.2d 538, 540 (Ind.2006); State v. Sproles, 672 N.E.2d 1353, 1356 (Ind.1996). The Tax Court has exclusive subject matter jurisdiction over "original tax appeals" and its territorial jurisdiction spans the entire state. Inp.Copr §§ 83-26-3-1, -3 (2013); Ind. Tax Court Rule 13.

A case is an original tax appeal if it: 1) "arises under the tax laws of Indiana" and 2) "is an initial appeal of a final determination" made by the Department. I.C. § 83-26-3-1. With respect to the first requirement, a case arises under Indiana's tax laws "if (1) 'an Indiana tax statute creates the right of action," or (2) 'the case principally involves collection of a tax or defenses to that collection."" State ex rel. Zoeller v. Aisin USA Mfg., Inc., 946 N.E.2d 1148, 1152 (Ind.2011) (quoting Sproles, 672 N.E.2d at 1357). The second requirement, that a case be an initial appeal of the Department's final determination, embodies the exhaustion of administrative remedies requirement. See State Bd. of Tax Comm'rs v. Ispat Inland, Inc., 784 N.E.2d 477, 482 (Ind.2003). In certain instances, therefore, the lack of a final determination from the Department, which is equivalent to the failure to exhaust administrative remedies, deprives the Court of subject matter jurisdiction in a case. See State ex rel. Att'y Gen. v. Lake Super. Ct., 820 N.E.2d 1240, 1247 (Ind.2005) (citation omitted); Ispat Inland, 784 N.E.2d at 482.

ANALYSIS

I. The Arising Under Requirement

The Department contends that the Court does not have subject matter jurisdiction over Garwood's case because it does not satisfy the "arising under" requirement of Indiana Code § 83-26-3-1. More specifically, the Department contends that Garwood's case does not arise under Indiana's tax laws for two reasons. First, it claims that Garwood's case is not a "valid" refund claim under Indiana Code § 6-8.1-9-1. (See Confd'l Mem. Supp. Resp't Mot. Dismiss (hereinafter, "Resp't Br.") at 6-8.) The Department explains that Garwood's case, unlike a case involving a "valid" refund claim, is not based on what she actually paid toward her tax liability by using a method described in Indiana Code § 6-8.1-8-1 (i.e., $175.48), but is instead based on a purported tax payment derived from the appraised value of her animal inventory (i.e., $122,650). (See Resp't Br. at 7-8; Resp't Confd'l Reply Supp. Resp't Mot. Dismiss (hereinafter "Resp't Reply Br.") at 2-8, 5 (footnote added).) Second, the Department maintains that Garwood's case does not arise under Indiana's tax laws because it does not involve the collection of a tax or defenses to that collection pursuant to the Indiana Supreme Court's decision in Aisin, but rather seeks to recover monies that allegedly were not paid or credited to her by mistake. (See Resp't Br. at 8-9 (citing Aisin, 946 N.E.2d at 1155); Resp't Reply Br. at 4-5.) As such, the Department maintains that Garwood's case involves a claim for compensatory damages, not a refund of sales tax. The Court, however, is not persuaded by either of these arguments.

Indiana Code § 6-8.1-9-1 provides, in relevant part, "[if a person has paid more tax than the person determines is legally due for a particular taxable period, the person may file a claim for a refund with the department." § 6-8.1-9-1(a) (2012). The claim must be filed within three years of the date of payment and "must set forth the amount of the refund to which the person is entitled and the reasons that the person is entitled to the refund." IC. § 6-8.1-9-l(a). Here, the facts show that just over a week after the Court issued Garwood II, Garwood filed with the Department a completed Form GA-110L, its prescribed form for claims for refund. (See Pet'r Pet. ¶ 3, Ex. A at 3.) The document provided that Garwood made a tax payment on June 2, 2009, stated the amount of refund requested, and explained why she believed she was entitled to a refund:

Jeopardy assessments were issued against me for sales taxes purportedly owed. On June 2, 2009 my personal property (dogs and puppies) were seized from my home and farm. We followed the appeals process and the Indiana Tax Court has held that the jeopardy assessments are void and ordered the Indiana Dept. of Revenue to take all actions necessary to effect the order,. I am attaching an appraisal of the value of my property as well as the decision of the Indiana Tax Court. My dogs were appraised at $122,650.00. I calculate my actual sales tax due as $1217.00 for 2008 and $1333.50 for 2009. In addition to taking the dogs the Department took $1260 in cash and uncashed checks totaling $1325. Subtracting what I owed from what was seized I am owed a refund of $122,684.50.

(Pet'r Pet., Ex. A at 8.) Thus, Garwood's filing of the Form GA-~110L complied with the requirements of Indiana Code § 6-8.1-9-1.

Furthermore, and as acknowledged by the Department, Garwood did everything the Department indicated that she needed to do. Indeed, the facts reveal that during Garwood's first appeal, the Department repeatedly argued that she was required to file a refund claim under Indiana Code § 6-8.1-9-1 to obtain any relief whatsoeyer. For example, during the hearing on the Garwood I motion to dismiss, the Department asserted that because Indiana is a "pay-to-play" state, Garwood needed to pay the jeopardy assessments in their entirety and then file a refund claim to satisfy the exhaustion of administrative remedies requirement. (See Pet'r Resp. Br. Ex. G at 14-19.) Then, in moving for summary judgment in Garwood II, the Department stated: "The Petitioners can avail themselves of Ind.Code § 6-8.1-9-1 and file a claim for refund of amounts either seized by or paid to the Department." (See Pet'r Resp. Br. Ex. F at 24 (emphasis added).) Moreover, in petitioning the Indiana Supreme Court to review Garwood II, the Department acknowledged that Garwood had already filed a refund claim:

Indiana's refund remedy provides meaningful backward-looking relief to rectify any erroneous, unlawful, or unconstitutional tax collection. It does so by providing a fair opportunity to challenge the accuracy and legal validity of a tax obligation, both administratively and judicially. It provides the clear and certain remedy of a refund with interest if the taxes are found to have been collected erroneously, unlawfully, or unconstitutionally. This remedy has been available to the Garwoods since the day their inventory was levied. They have, until the past month, intentionally avoided this remedy.

(See Petr Resp. Br. Ex. H at 36 (emphasis added).) (See also Pet'r Pet. at 2, Ex. B at 1; Resp't Des'g Evid., Vol. 2, Ex. 5 at 1 (demonstrating that the Department issued a check to Garwood in June 2012 and, on two separate occasions, indicated the "refund" was for her overpayment of sales tax for the 2007 tax period).) Based on the totality of these jurisdictional facts, the Court finds that Garwood's case "arises under Indiana's tax laws": she filed a refund claim with the Department on August 29, 2011, pursuant to Indiana Code § 6-8.1-9-1 and now seeks to have the validity of her claim resolved by this Court.

Second, the General Assembly created this Court "to channel tax disputes into a single specialized tribunal, thereby ensuring the uniform interpretation and application of the tax laws." Aisin, 946 N.E.2d at 1152 (citation omitted). To that end, the Indiana Supreme Court has explained that the "arising under Indiana's tax law" requirement is to be broadly construed. See id. at 1153; Sproles, 672 N.E.2d at 1357. Indeed, "any case challenging the collection of a tax or assessment arises under the tax laws, whether the challenge is premised on constitutional, statutory, or other grounds." Aisin, 946 N.E.2d at 1153 (citations omitted). Moreover, the challenge need not directly involve the collection of a tax-challenges to earlier steps in the taxation or assessment process also arise under the tax laws. Id.

Here, the parties do not dispute that the Department employed the jeopardy assessment procedure under Indiana Code § 6-8.1-5-3 in seizing and selling Garwood's animal inventory. Thus, Garwood's case concerns the sale of seized property pursuant to jeopardy tax warrants, a tax matter. Moreover, the resolution of Garwood's appeal will require the Court to determine whether other tax statutes apply to the jeopardy tax collection process. (Compare Pet'r Resp. Br. at 3-4 (where Garwood argues that the procedures in Indiana Code § 6-8.1-8-8 apply to sales conducted pursuant to jeopardy tax warrants) with Resp't Br. at 4-5 (where the Department argues that Indiana Code § 6-8.1-8-1 provides the exclusive method by which a tax payment can be made).) See also supra note 3; 45 Inp. Apum. Cops 155-8 (2018) (see http:// www .in.gov/legislative/iac/) (the jeopardy tax statute and regulation do not shed any light on either position). Consequently, the Court finds that these factors also indicate that Garwood's case satisfies the "arising under Indiana tax law" requirement of Indiana Code § 33-26-3-1.

II. The Final Determination Requirement

With respect to the final determination requirement in Indiana Code § 33-26-3-1, Indiana Code § 6-8.1-9-1 accounts for the possibility that the Department may not rule on a claim for refund within 180 days of its filing by deeming such claims denied. See 1.C. § 6-8.1-9-1(c)(2) (barring the Court from hearing a refund appeal suit if it "is filed both before the [department's] decision is issued and before the one hundred eight-first day after the date the person files the claim for refund with the department"); Ziegler v. Indiana Dep't of State Revenue, 797 N.E.2d 881 n. 2 (Ind. Tax Ct.2003). Here, there is no dispute that Garwood filed her second appeal with this Court more than 180 days after she filed her refund claim with the Department. (See Resp't Reply Br. at 2 ("It is certainly true that the Department did not rule on Garwood's request for more than 181 days after it was filed").) As a result, Garwood has also satisfied the final determination or exhaustion of administrative remedies requirement of Indiana Code § 38-26-3-1.

ORDER

The Court, having found that Garwood's case satisfies the jurisdictional prerequisites of Indiana Code § 33-26-3-1, DENIES the Department's Motion to Dismiss in its entirety. Accordingly, the Court now LIFTS the stay granted on August 2, 2013.

SO ORDERED this 31st day of October 2018.

      . The Department has designated certain evidence as confidential; therefore, the Court's order will provide only that information necessary for the reader to understand its disposition of the issues presented. See generally Ind. Administrative Rule 9.

      . In addition, $1,260 in cash and un-cashed checks totaling $1,325 were seized pursuant to a search warrant issued by the Marion Superior Court.

      . Indiana Code § 6-8.1-5-3 authorizes the Department to issue jeopardy tax assessments if it "finds that a person owing taxes intends to quickly leave the state, remove his property from the state, conceal his property in the state, or do any other act that would jeopardize the collection of those taxes{.]" Inp.Cope § 6-8.1-5-3(a) (2013). The statute further states that the Department "may declare the person's tax period at an end, may immediately make an assessment for the taxes owing, and may demand immediate payment of the amount due, without providing the notice required in IC § 6-8.1-8-2." LC. § 6-8.1-5-3(a). Lastly, the statute provides that if the person fails to make immediate payment, the Department "may issue ... a jeopardy tax warrant against the person and, either without or with the assistance of the sheriffs of any counties in the state, may levy on and sell the person's property which is located in those counties." IC. § 6-8.1-5-3(c).

      . The Department has also asked the Court to strike an exhibit attached to Garwood's response brief, claiming the exhibit is improperly before the Court because Garwood intends to introduce it at trial, she has not laid a proper foundation for its admittance, and it constitutes hearsay. (See Resp't Mot. Strike Pet'r Exs. D & E at 1-2.) (See also Hr'g Tr. at 6-7 (withdrawing the Motion to Strike with respect to Exhibit E).) The Court, however, finds that the Department's Motion to Strike and Garwood's exhibit are moot because neither concerns matters that are germane to the issue at hand.

      . Indiana Code § 6-8.1-8-1 provides, in relevant part, that "[a person may make a tax payment: (1) in cash; (2) by bank draft; (3) by check; (4) by cashier's check; (5) by money order; (6) by credit card, debit card, charge card, or similar method; or (7) if approved by the [DJepartment, by an electronic fund transfer[.]" Inp.Cope § 6-8.1-8-1(a) (2013).

      . Furthermore, the Court notes that Garwood's sales tax liability for the January 1, 2007 through June 30, 2009 tax period remains unsettled. See supra at p. 4.

      . Even if the Court found the Department's May 29, 2012 letter was a final determination denying a portion of Garwood's refund claim, the Court would still have subject matter jurisdiction over her case. See Inp.Cope § 6-8.1-9-1(c)(1)(A) (2012) (stating that Garwood must appeal the denial of her refund claim within 90 days of May 29, 2012).


text:
    In the Matter of Bruce A. CARR, Respondent.
    No. 64S00-1301-DI-54.
    Supreme Court of Indiana.
    Dec. 5, 2013.
   PUBLISHED ORDER GRANTING REINSTATEMENT TO THE PRACTICE OF LAW

On April 19, 2013, this Court entered a "Published Order Imposing Reciprocal Discipline," suspending Respondent from the practice of law in this state based on Respondent's suspension from the practice of law in the state of Illinois. Respondent has been reinstated to practice law in the foreign jurisdiction, and Respondent's suspension in this state has been at least as long as the suspension in the foreign jurisdiction. Respondent filed a motion for reinstatement to the practice of law in Indiana on October 4, 2013. The Commission has no objection to reinstatement.

This Court, being duly advised, GRANTS the motion for reinstatement and REINSTATES Respondent as a member of the Indiana bar. The Court further VACATES as unnecessary its order appointing a hearing officer dated October 23, 2018.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 28(8)(d). The Clerk is further directed to post this order to the Court's website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions.

All Justices concur.


author: DAVID, Justice.

text:
    Demetrius WALKER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 49S02-1312-CR-804.
    Supreme Court of Indiana.
    Dec. 12, 2013.

      Suzy St. John, Ruth A. Johnson, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   DAVID, Justice.

Just because an individual refuses to comply with a police officer's order does not necessarily subject that individual to criminal liability under Indiana's resisting law enforcement statute. The individual must "forcibly" resist the officer's lawful execution of his or her duties. But in this case the defendant refused repeated orders to lay down on the ground and advanced aggressively, with his fists clenched, to within a few feet of the police officer issuing the orders before ultimately being tased. We find this conduct was sufficient to support his conviction for resisting law enforcement, and therefore affirm the trial court.

Facts and Procedural History

Early on the morning of March 25, 2012, Indianapolis Metropolitan Police Department Officer Jason Ehret was dispatched to a fight in progress. When he arrived on-scene, he saw two males standing in the middle of an intersection, yelling back and forth. Officer Ehret announced himself, but the men continued yelling. The men began walking towards each other and Officer Ehret told them to separate; instead they began throwing punches.

Officer Ehret continued yelling at them to stop, and to lay down on the ground; after ten or fifteen seconds of the men continuing to fight, he warned them that he would employ his taser if they did not comply. One man immediately dropped to the ground with his arms outstretched; the other-Demetrius Walker-turned toward Officer Ehret, who was at that point about ten feet away, and with fists clenched, stared at Officer Ehret and began to approach.

Officer Ehret ordered Walker to stop and get down on the ground several times, but Walker continued his advance with his arms and fists clenched "in an aggressive manner"-at one point raising his fists. When Walker got within three or four feet of Officer Ehret, Officer Ehret drew his taser and pointed it; Walker continued forward. Officer Ehret tased Walker, who immediately fell to the ground "and after that point was very cooperative." (Tr. at 12.) Officer Ehret was then able to handcuff and arrest Walker without any further struggle.

The State charged Walker with resisting law enforcement, as a class A misdemean- or, and disorderly conduct, as a class B misdemeanor. After a bench trial, the judge found Walker guilty of resisting law enforcement and sentenced him to ninety days in the Marion County jail, with eredit for fifty days of time served.

Walker appealed, arguing that the evidence was insufficient to sustain his conviction for resisting law enforcement. The Court of Appeals affirmed, Walker v. State, 984 N.E.2d 642 (Ind.Ct.App.2013), and Walker sought transfer to this Court. We heard oral argument on August 22, 2013, and now grant transfer, thereby vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A). We likewise affirm.

Standard of Review

We do not reweigh evidence or reassess the credibility of witnesses when reviewing a conviction for the sufficiency of the evidence. Bailey v. State, 979 N.E.2d 133, 135 (Ind.2012). We view all evidence and reasonable inferences drawn therefrom in a light most favorable to the conviction, and will affirm "if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." Davis v. State, 813 N.E.2d 1176, 1178 (Ind.2004); Batley, 979 N.E.2d at 135.

Discussion

A person commits the crime of resisting law enforcement when he or she "knowingly or intentionally ... forcibly resists, obstructs, or interferes with a law enforcement officer ... while the officer is lawfully engaged in the execution of the officer's duties." Ind.Code § 85-44.1-3-1(a)(1) (Supp.2013). Barring certain aggravating factors, the offense is a class A misdemeanor. Ind.Code § 35-44.1-3-1(a). Such a seemingly simple statute, however, has proven to be complex and nuanced in its application.

In Spangler v. State, we held that the word "forcibly" is an essential element of the crime and modifies the entire string of verbs-resists, obstructs, or interferes-such that the State must show forcible resistance, forcible obstruction, or forcible interference. 607 N.E.2d 720, 722-23 (Ind.1993). We also held that the word meant "something more than mere action." Id. at 724. "[One "forcibly resists law enforcement when strong, powerful, violent means are used to evade a law enforcement official's rightful exercise of his or her duties." Id. at 723. "[Alny action to resist must be done with force in order to violate this statute. It is error as a matter of law to conclude that 'forcibly resists' includes all actions that are not passive." Id. at 724.

But even so, "the statute does not demand complete passivity." K.W. v. State, 984 N.E.2d 610, 612 (Ind.2013). In Graham v. State, we clarified that "[the force involved need not rise to the level of mayhem." 903 N.E.2d 963, 965 (Ind.2009). In fact, even a very "modest level of resistance" might support the offense. Id. at 966 ("even 'stiffening' of one's arms when an officer grabs hold to position them for cuffing would suffice").

Furthermore, we have never held that actual physical contact between the defendant and the officer has been required to sustain a conviction for resisting law enforcement. In fact, from the beginning we have said just the opposite. See Spangler, 607 N.E.2d at 724 (noting "no movement or threatening gestwre made in the direction of the official" (emphasis added)); id. (defining "forcible" in part by comparison to statutory definition of "forcible felony" which included felonies involving "the use or threat of force against a human being" and those "in which there is imminent danger of bodily injury to a human being" (emphasis added) (citing Ind.Code § 35-41-1-11)); see also Price v. State, 622 N.E.2d 954, 963 n. 14 (Ind.1993) (citing Spangler for proposition that "an individual who directs strength, power or violence towards police officers or who makes a threatening gesture or movement in their direction," may be charged with resisting law enforcement (emphasis added)).

And this notion has been applied to affirm convictions when a defendant makes such a threatening gesture or movement, or otherwise presents an imminent danger of bodily injury. See Pogue v. State, 937 N.E.2d 1253, 1258 (Ind.Ct.App.2010) (display of box cutter and refusal to drop it "amounted to a visual showing of strength and a threat of violence" sufficient to sustain conviction), trams. demied; see also Stansberry v. State, 954 N.E.2d 507, 511-12 (Ind.Ct.App.2011) (vacating conviction for "attempted" resisting law enforcement when defendant charged at officer and had to be pepper-sprayed, but citing Pogue as holding that "merely showing strength and a threat of violence is sufficient to prove forcible resistance, obstruction, or interference").

So in summary, not every passive-or even active-response to a police officer constitutes the offense of resisting law enforcement, even when that response compels the officer to use force. Instead, a person "forcibly" resists, obstructs, or interferes with a police officer when he or she uses strong, powerful, violent means to impede an officer in the lawful execution of his or her duties. But this should not be understood as requiring an overwhelming or extreme level of foree. The element may be satisfied with even a modest exertion of strength, power, or violence. Moreover, the statute does not require commission of a battery on the officer or actual physical contact-whether initiated by the officer or the defendant. It also contemplates punishment for the active threat of such strength, power, or violence when that threat impedes the officer's ability to lawfully execute his or her duties.

Still, these cases are necessarily fact, sensitive, and since Spangler appellate courts have attempted to place them along a spectrum of force, though often with the facts varying only by slight degrees. A side-effect of this approach can be a degree of unpredictability in outcome, for both the defendant and the State.

For example, in KW., we held that the evidence was insufficient to sustain a juvenile adjudication for resisting law enforcement when the juvenile began to pull away and turn from a school resource officer attempting to cuff him, 984 N.E.2d at 612-13, and in A.C. v. State, the Court of Appeals similarly found that a juvenile did not act forcibly when he refused to stand when asked and leaned away from an officer, 929 N.E.2d 907, 911-12 (Ind.Ct.App.2010). But in Johnson v. State, the Court of Appeals found forcible resistance because that defendant turned and pushed away from officers as they attempted to search him, and stiffened up as they put him in a transport vehicle 833 N.E.2d 516, 518-19 (Ind.Ct.App.2005).

And in Pogue v. State, the Court of Appeals held that a defendant acted forcibly when he displayed a box cutter and refused to drop it when asked, but instead seemed to try to put it back in his pocket. 937 N.E.2d 1253, 1258-59 (Ind.Ct.App.2010), trans. denied. But in Colvin v. State, the Court of Appeals found that a defendant did not act forcibly just because he refused an order to remove his hands from his pockets but had to be taken physically to the ground by an officer. 916 N.E.2d 306, 309 (Ind.Ct.App.2009), trans. denied.

Nevertheless, we still remain unconvinced that there needs to be any strict bright-line test for whether a defendant acts "foreibly"-at least, not one with any more definitiveness than the language already in use by our case law. Some things are appropriately suited for such tests, see, e.g., Bailey v. State, 979 N.E.2d 133, 141-42 (Ind.2012) (identifying reasons that bright-line rule that any degree of physical pain may constitute bodily injury is preferred over "case-by-case comparison to determine whether a victim's pain is sufficiently significant"), and some things are not, see id. at 141 n. 17 (no bright-line rule dividing pain and extreme pain, but "extreme pain" is something well within common understanding of average fact-finder).

We think whether conduct is "forcible," such that it may support a conviction for resisting law enforcement, falls into the latter of these two camps. Given the definition we have articulated, we feel confident that triers of fact will make the proper determinations when confronted with the facts of the cases before them, and our body of case law provides ample guideposts for appellate review.

And here, when viewed in a light most favorable to the conviction, we believe the evidence is sufficient to sustain Walker's conviction. Officer Ehret's testimony indicates that he arrived as Walker and another man were arguing, and he ordered the two men to the ground several times-neither complied until Officer Eh-ret threatened to use his taser as the argument escalated to violence. At that point, one combatant dropped to the ground, but Walker turned towards Officer Ehret and began advancing on him. With his fists clenched-and at a point raised- and acting in an aggressive manner, Walker ignored repeated warnings and orders from Officer Ehret and advanced to near striking distance. At that point, Officer Ehret deployed his taser and was able to subdue Walker.

Walker argues that his refusal to lay down on the ground, and the fact that Officer Ehret had to use force to eventually get Walker on the ground, does not in and of itself, prove any forcible action on Walker's part. He also argues that simply walking toward Officer Ehret, in and of itself, does not constitute the use of strong, powerful means to resist law enforcement. He is correct on both points, and if those were the only actions Walker had taken {or refused to take), this might be a different case.

Where Walker's argument fails is in the attempt to distinguish his case factually from Pogue and Stansberry. He acknowledges that those cases are representative of the idea that the threat of violence can support a conviction for resisting law enforcement, but argues that unlike in Po-gue, he did not display a weapon in his encounter with Officer Ehret, and that unlike in Stansberry, there was no evidence of "purposefully aggressive behavior in defiance of arrest" directed at Officer Ehret. (Appellant's Br. at 9-10.)

For one thing, Walker did display a weapon-his fists-and while he appears to claim that his fists were simply still clenched as a result of a racially-charged fight, this is asking this Court to engage in speculation as to what Walker might have done had he closed the distance completely between he and Officer Ehret. There was no direct evidence presented as to who Walker's aggression was aimed at or why his fists were clenched. Given the totality of Walker's conduct, however, we think it is a reasonable inference to conclude that his aggression was at that point directed at Officer Ehret. We think this is sufficient to show an active threat of strength, violence, or power.

And as for his argument that he showed no evidence of "purposefully aggressive behavior in defiance of arrest," we note first the statute does not require his action to specifically be "in defiance of arrest," only a forcible resistance, obstruction, or interference with Officer Ehret's execution of his duties. And second, if advancing in an aggressive manner and with fists clenched to within three or four feet of the only police officer on the scene, who has been ordering you to the ground, is not at least "purposefully aggressive behavior," then we are not clear what conduct might ever merit such a label.

Conclusion

We therefore affirm Walker's conviction for resisting law enforcement.

DICKSON, C.J., MASSA, and RUSH, JJ., concur.

RUCKER, J., concurs in result.

      . The trial court, on Walker's motion, dismissed the disorderly conduct charge.

      . At the time of his arrest and trial, this offense was codified at Indiana Code § 35-44-3-3. There was no change to the substance of the statute when it was recodified to its current location.