source: Caselaw Access Project

author: PYLE, Judge.

license: Public Domain

text:
    Betty J. ANGEL, Appellant-Plaintiff, v. Kent H. POWELSON and Marjorie A. Powelson, Appellee-Defendant.
    No. 82A04-1205-PL-292.
    Court of Appeals of Indiana.
    Oct. 29, 2012.

      Robert R. Faulkner, Evansville, IN, Attorney for Appellant.
    Thomas P. Norton, Evansville, IN, Attorney for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

This case involves a dispute between neighbors — Betty J. Angel (“Angel”) and Kent H. Powelson (“Kent”) and Marjorie A. Powelson (“Marjorie”) (collectively, “the Powelsons”) — regarding two pieces of property in Vanderburgh County: (1) an 80-acre parcel of land, which was owned by Kent’s grandmother, divided in 1964, and conveyed to the parties at different periods in time; and (2) a 20-foot wide strip of land that passes over a 60-acre tract of land (“the Roadway”) that serves as a roadway to access the divided parcels. Angel received a deed to 73 acres “more or less” of the 80-acre parcel and an easement to use the Roadway in 1964, and Kent received a deed to 7 acres “more or less” of the 80-acre parcel and an easement to use the Roadway in 1978.

The parties used the Roadway and appear to have lived without major problems on their respective parcels until Kent gave a cell phone company a public utility easement, allowing it permission to come onto and put a cell phone tower on Kent’s parcel. Forty-six years after Angel received the deed to her parcel, Angel sued Kent, claiming that the legal description of the property boundaries in her 1964 deed should be changed or reformed because Kent’s grandmother misinformed Angel that she was receiving 73 acres and claiming that she had established ownership to the Roadway through adverse possession.

After the parties filed cross-motions for summary judgment, the trial court denied Angel’s partial motion for summary judgment and granted part of the Powelsons’ motion for summary judgment on Angel’s claims of reformation of a deed and adverse possession. Angel now appeals the trial court’s order granting part of the Powelsons’ summary judgment motion.

We affirm.

ISSUE

Whether the trial court erred by granting part of the Powelsons’ motion for summary judgment on Angel’s claims of reformation of a deed and adverse possession.

FACTS

Nora Powelson (“Nora”), Kent’s grandmother who died in 1980, owned the property at issue. On April 29, 1964, Nora executed a warranty deed (“1964 Warranty Deed”), in which she conveyed and warranted a portion of the eighty-acre parcel to Angel and her husband Samuel Angel. Specifically, the 1964 Warranty Deed provided:

THIS INDENTURE WITNESSTH THAT NORA C. POWELSON, widow and unmarried, Grantor of Los Angeles County and State of California, CONVEYS AND WARRANTS to SAMUEL M. ANGEL and BETTY JUNE ANGEL husband and wife, Grantees of Vanderburgh County and State of Indiana, for the sum of One Dollar ($1.00) and other good and valuable considerations, the following described real estate in Vanderburgh County in the State of Indiana, to-wit:
Part of the East half of the Northwest Quarter of Section Twenty-three (23), Township Five (5) South, Range Eleven (11) West, described as follows, to wit:
Commencing at the Northwest corner of said half quarter section, thence East along the North line thereof a distance of Seven Hundred Ninety-eight (798) feet to a point, which point is also on the center line of an existing twenty (20) foot roadway, thence South and parallel with the West line of said half quarter section of a distance of seventy-five (75) feet to a point, thence East and parallel with the North line of said half quarter section a distance of eighty-six (86) feet to a point, thence South and parallel with the West line of said half quarter section a distance of seven hundred fifty (750) feet to a point, thence East and parallel with the North line of said half quarter section a distance of four hundred thirty-six (436) feet, more or less, to a point on the East line of said half quarter section, which point is eight hundred twenty-five (825) feet South of the North line thereof; thence South along the East line of said half quarter section a distance of one thousand, eight hundred and fifteen (1,815) feet, more or less, to the Southeast corner of said half quarter section, thence West along the South line of said half quarter section a distance of one thousand, three hundred and twenty (1,820) feet, more or less, to the Southwest corner thereof, thence North along the West line of said half quarter section a distance of two thousand, six hundred and forty (2,640) feet, more or less, to the place beginning and containing seventy-three (73) acres, more or less.
ALSO: An easement for roadway purposes across the following described real estate, to-wit:
A strip of land twenty (20) feet in width through and over a tract of sixty (60) acres off the South side of the East half of the Southwest quarter of Section Fourteen (14), Township Five (5) South, Range Eleven (11) West, the center line of which strip of land is as follows:
Commencing on the South line of the East half of the Southwest quarter of said Section Fourteen (14), seven hundred ninety-eight (798) feet East of the Southwest corner thereof; thence North 31 degrees 5 minutes West 134.1 feet; thence North 26 degrees 53 minutes West 109.4 feet; thence North 23 degrees 39 minutes West 82.7 feet; thence North 21 degrees 41 minutes West 134 feet; thence North 23 degrees 50 minutes West 135.8 feet; thence North 11 degrees West 36.1 feet to the center of the road known as the Orchard Road.
By accepting this Deed the Grantees agree that they will maintain the said roadway until another dwelling house is erected on any part of the said East half of the Northwest quarter of Section Twenty-three (23), Township Five (5) South, Range Eleven (11) West, at which time the Grantees agree to share the maintenance of said roadway with the owners of such other tract containing a dwelling house, or such other tracts containing dwelling houses, which may hereafter be sold off from the said half quarter section, or which may be constructed on any sub-divided part of said half quarter section. It being the intention of the Grantor and Grantees that the costs of the maintenance of said roadway shall initially be borne by the Grantees, and shall ultimately be borne by all successors of the Grantees and the Grantor whose places of residence or places or dwelling shall be served by the said roadway.
Grantor reserves to herself, her successors and assigns, an undivided one-half (1/2) interest in the oil, gas and mineral rights in the above described real estate.

(App. 22-23) (emphasis added). Thus, Nora conveyed seventy-three acres “more or less” to Angel (“Angel’s Parcel”) as well as an easement to use the Roadway. (App. 22). This 1964 Warranty Deed was recorded on August 17,1964.

On April 13, 1974, Nora executed a warranty deed (“1974 Warranty Deed”), in which she conveyed and warranted the remainder of the eighty-acre parcel to Kent’s parents, Charles W. Powelson and Magdelena E. Powelson (“Kent’s parents”). Specifically, the 1974 Warranty Deed provided that Kent’s parents were receiving “Seven (7) acres, more or less.” (App. 156). Nora also conveyed to Kent’s parents an easement to use the Roadway “for roadway purposes[.]” (App. 156). The 1974 Warranty Deed was recorded on April 18,1974.

On December 14, 1978, Kent’s parents executed a warranty deed (“1978 Warranty Deed”), in which they conveyed the same “7 acres, more or less” to Kent (Kent’s Parcel”) as well as an easement to use the Roadway “for roadway purposes[.]” (App. 158). The 1978 Warranty Deed was recorded on December 15, 1978. In 1998, Kent executed a warranty deed, in which he conveyed his parcel to himself and his wife as tenants by the entireties.

In the 1980s, Angel bought additional parcels of land, which were situated to the north of her parcel and to the east and west of the Roadway (“Northeast Parcel” and “Northwest Parcel”). At some point prior to 2006, Angel sold a portion of Angel’s Parcel at issue to a third party.

In December 2008, the Powelsons granted a public utility easement to Power-tel/Memphis, Inc. d/b/a T-Mobile USA, Inc. (“T-Mobile”) for the placement of a cell phone tower on their property. While the details are unclear, due to the fact that this case is before us on a partial entry of summary judgment, it appears that this easement for the cell phone tower and the parties’ use of the Roadway became a bone of contention between the neighbors and ultimately led to this lawsuit between them.

In June 2010, Angel filed a complaint against the Powelsons. In Count I, Angel sought reformation of the 1964 Warranty Deed, alleging that the deed should be reformed because Angel had just discovered in 2009 that: (1) the property boundaries contained in the 1964 Warranty Deed actually describe 71.6 acres instead of 73 acres; and (2) one of the property boundaries described in the 1964 Warranty Deed would have bisected a “dwelling house” that no longer existed but that Angel used to have on Angel’s Parcel in 1964. (App. 16). In Count II, she sought a declaratory judgment that she had title to the Roadway by adverse possession. She also alleged that she had established a prescriptive easement to the Roadway in relation to her Northwest Parcel and Northeast Parcel due to her use of the Roadway to access those two parcels. In Count III, she alleged slander of title, arguing that Kent had “placed a cloud on the title to [her] real estate” by recording a warranty deed and a quit claim deed, in February 2009 and May 2010 respectively, to an eighty-acre tract of land that included her property, and she sought to quiet title and recover damages. (App. 19). Finally, in Count IV, she raised a claim of trespass and alleged the Powelsons’ grant of a public utility easement to T-Mobile allowed the cell phone company to place utility lines that encroached and trespassed on her property.

The Powelsons filed an answer, asserting various affirmative defenses including laches. They also filed a counterclaim, alleging claims, among others, of trespass as well as encroachment and violation of the Roadway easement.

In April 2011, Angel filed a motion for partial summary judgment, arguing that she was entitled to summary judgment on her claim of slander of title as contained in Count III of her complaint. Thereafter, the Powelsons filed a response to Angel’s motion and a cross-motion for summary judgment on Count III. The Powelsons argued, in part, that Angel had failed to show that there was a cloud of title on Angel’s Parcel because she had conveyed a portion of that parcel to third parties. Angel then filed a reply, acknowledging that she had conveyed part of Angel’s Parcel but arguing, in part, that the Powelsons’ designation of evidence failed to comply with Trial Rule 56’s specificity requirement and that the Powelsons’ answer, affirmative defenses, and counterclaim were not properly designated evidence because they were not verified.

In August 2011, the Powelsons filed a motion for summary judgment, alleging they were entitled to summary judgment on all four claims raised by Angel in her complaint. In relevant part, the Powel-sons argued that they were entitled to summary judgment on Angel’s claim for reformation of the deed because there was no fraud in the deed. They also argued that the reformation claim was otherwise barred by the doctrine of laches. Specifically, the Powelsons assert that Angel would have been aware of the total amount of actual acreage conveyed to her in the 1964 Warranty Deed long before 2009 because she had (1) conveyed a large portion of Angel’s Parcel to third parties, and (2) acquired the Northeast Parcel and Northwest Parcel that were contiguous to Angel’s Parcel. The Powelsons also argued that they were entitled to summary judgment on Angel’s adverse possession claim because Angel could not satisfy all the elements of such a claim, such as exclusive use and control of the Roadway.

Thereafter, Angel filed a response in opposition to the Powelsons’ summary judgment motion. She again argued, in part, that the Powelsons’ designated evidence was not specific enough and that their unverified answer, affirmative defenses, and counterclaim were improper designated evidence for summary judgment. As part of her response, she designated a letter — which was handwritten by Kent’s father to Kent’s grandmother Nora in June 1964 — that Angel contended showed that there was a genuine issue of fact regarding whether Kent’s grandmother had committed fraud when representing the boundary lines of Angel’s parcel, thereby requiring reformation of the 1964 Warranty Deed.

The trial court held a hearing on the motions in November 2011. Upon a request from the trial court, the Powelsons filed a supplemental brief with additional legal authority in support of their summary judgment motion on Angel’s claims of reformation of a deed and adverse possession (Count I and Count II of her complaint). Thereafter, Angel filed a reply to the Powelsons’ supplemental brief, and the trial court allowed Angel to designate additional evidence.

On March 21, 2012, the trial court entered an order, denying Angel’s partial motion for summary judgment and granting the Powelsons’ motion for summary judgment on Angel’s reformation of a deed and adverse possession claims. Specifically, on these two claims, the trial court’s order provided:

COUNT I OF PLAINTIFF’S COMPLAINT

Count I of plaintiffs complaint alleges she received only 71.6 acres of land instead of the 73 acres more or less contemplated by the parties. The original guarantor [sic], Nora C. Powelson, who died July 13, 1980, was the grandmother of the defendant, Kent H. Powelson. The Court agrees with the authorities cited by the defendant which hold that the general descriptive statement on the deed, “73 acres, more or less” must yield to the specific metes and bounds description. Additionally, as a practical matter, the transaction occurred 46 years before the filing of the complaint. The complaint was filed nearly 30 years after the guarantor [sic] passed away. The Court agrees with the defendants that Count I is barred by the Doctrine of Laches.

COUNT II

The Court also agrees with the defendants that the plaintiffs complaint for adverse possession of the 20 foot roadway fails on the facts before the Court. The plaintiffs’ [sic] use of the roadway was not exclusive and most importantly, was not hostile and visible since she was granted an easement to use the roadway for ingress and egress. However, the Court agrees with the plaintiff that her added use of the roadway for ingress and egress to the three adjoining parcels of real estate she purchased at least creates an issue of fact regarding the issue of establishing a prescriptive easement. The Court would note, however, that as the Court understands the facts, it will be difficult to prove Ms. Angel has more than a continued right to use the roadway consistent with her easement.

(App. 11-12).

Thereafter, on March 28, 2012, Angel filed a motion to amend the summary judgment order so that it reflected that the entry of summary judgment was a final order pursuant to Indiana Trial Rule 54(B). That same day, the trial court granted Angel’s motion and entered an order specifying that “there [was] no just reason for delay” and “expressly directing] entry of partial summary judgment” in favor of the Powelsons. (App. 14). On May 1, 2012, Angel filed a motion for extension of time to file her notice of appeal pursuant to Trial Rule 72(E), which the trial court granted on May 7, 2012. Angel now appeals the trial court’s order granting part of the Powelsons’ motion for summary judgment. Additional facts will be discussed as necessary.

DECISION

Angel argues that the trial court erred by granting part of the Powelsons’ motion for summary judgment. Specifically, Angel argues that: (a) the trial court erred by considering the Powelsons’ designated evidence; (b) the trial court erred by granting summary judgment to the Powel-sons on Angel’s claim for reformation of a deed; and (c) the trial court erred by granting summary judgment to the Powel-sons on Angel’s claim for adverse possession.

When reviewing a trial court’s order granting summary judgment, we apply the same standard as that used in the trial court. Kopczynski v. Barger, 887 N.E.2d 928, 930 (Ind.2008). Summary judgment is appropriate only where the designated evidence shows “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Ind. Trial Rule 56(C). “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth ..., or if the undisputed facts support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009) (internal citations omitted). When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiffs cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiffs claim. Dible v. City of Lafayette, 713 N.E.2d 269, 272 (Ind.1999).

Where a trial court enters conclusions of law in granting a motion for summary judgment, as the trial court did in this case, the entry of specific conclusions do not alter the nature of our review. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind.1996). We are not bound by the trial court’s specific conclusions of law. Id. They merely aid our review by providing us with a statement of reasons for the trial court’s actions. Id.

A trial court’s grant of summary judgment is “ ‘clothed with a presumption of validity,’ ” and an appellant has the burden of demonstrating that the grant of summary judgment was erroneous. Williams, 914 N.E.2d at 762 (quoting Rosi v. Bus. Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993)). In reviewing a trial court’s ruling on a motion for summary judgment, we may affirm on any grounds supported by the designated evidence. SMDfund, Inc. v. Fort Wayne-Allen Cnty. Airport Authority, 831 N.E.2d 725, 728 (Ind.2005), cert. denied.

A. Designated Evidence

Angel first contends that the trial court erred by considering the Powelsons’ designated evidence. Specifically, Angel bases her allegation of trial court error on her argument that the Powelsons failed to comply with Trial Rule 56 by failing to provide a specific reference to their designated evidence and by including unverified pleadings, such as their answer and counterclaim, in their designated evidence.

“Trial Rule 56(C) requires that ‘[a]t the time of filing the motion [for summary judgment] or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion.’ ” Filip v. Block, 879 N.E.2d 1076, 1080 (Ind.2008) (quoting Trial Rule 56(C)), reh’g denied. “Trial Rule 56(C) does not mandate either the form of designation, i.e., the degree of specificity required or its placement, i.e., the filing in which the designation is to be made.” Id. at 1081. Nevertheless, a party should designate materials with “sufficient specificity to identify the relevant portions of a document[,]” and [t]he only requirement as to placement is that the designation clearly identify listed materials as designated evidence in support or opposition to the motion for summary judgment.” Id. “ ‘[A]s long as the trial court is apprised of the specific material upon which the parties rely in support of or in opposition to a motion for summary judgment, then the material may be considered.’ ” Ling v. Stillwell, 732 N.E.2d 1270, 1276 (Ind.Ct.App.2000) (quoting National Bd. of Exam’rs for Osteopathic Physicians and Surgeons, Inc. v. American Osteopathic Ass’n, 645 N.E.2d 608, 615 (Ind.Ct.App.1994)), trans. denied.

Angel contends that the trial court erred by considering the Powelsons’ designated evidence. During the summary judgment proceedings, Angel did not file a formal motion to strike the Powelsons’ designated evidence; instead, she challenged their designated evidence in her summary judgment response. However, on appeal, Angel fails to provide a citation to the record on appeal showing where the trial court entered an order denying her request to strike or disregard the designated evidence or otherwise making a ruling on Angel’s objection to the designated evidence. Because the record before us contains no order or ruling upon which Angel now bases her allegation of error, we conclude that Angel has waived review of her argument that the trial court erred by considering the Powelsons’ designated evidence. See Chustak v. N. Ind. Pub. Serv. Co., 259 Ind. 390, 394, 288 N.E.2d 149, 152 (1972) (explaining that, where no ruling on party’s motion to produce appeared in the record, court on appeal could not assume trial court overruled party’s motion and party waived review of alleged error); see also Smith v. State, 439 N.E.2d 634, 637 (Ind.1982) (“Error alleged but not disclosed by the record is not a proper subject for appellate review.”).

Waiver notwithstanding, because the Powelsons’ designated evidence was specific enough to inform the trial court of the material upon which the Powelsons relied in support of their motion for summary judgment, it may be considered. See Ling, 732 N.E.2d at 1276; see also Wells Fargo Ins., Inc. v. Land, 932 N.E.2d 195, 201 (Ind.Ct.App.2010) (considering a party’s summary judgment evidence that was not formally designated but was included in material submitted by party in support of party’s summary judgment motion because the trial court was “apprised of the specific material”). The Powelsons designated their evidence by means of a separate filing of designation in which they identified the evidence upon which they were relying in support of their summary judgment motion. While the items designated, such as multiple deeds, drawings, maps, and affidavits, were referred to in their entirety, we have explained that there are occasions on summary judgment when “including documents in their entirety may be necessary.” Id. (holding that a party’s designation of evidence, including affidavits in their entirety, was appropriate).

B. Reformation of Deed

Angel contends that the trial court erred by granting summary judgment to the Powelsons on her claim of reformation of a deed. “Reformation is ‘an extreme equitable remedy to relieve the parties of mutual mistake or fraud.’ ” Meyer v. Marine Builders, Inc., 797 N.E.2d 760, 772 (Ind.Ct.App.2003) (quoting Estate of Reasor v. Putnam Cnty., 635 N.E.2d 153, 158 (Ind.1994), reh’g denied). “The remedy of reformation is extreme because written instruments are presumed to reflect the intentions of the parties to the instruments.” Id. Therefore, courts in Indiana may reform written instruments only if: (1) there has been a mutual mistake; or (2) one party makes a mistake accompanied by fraud or inequitable conduct by the other party. Monroe Guar. Ins. Co. v. Langreck, 816 N.E.2d 485, 490 (Ind.Ct.App.2004). “Equity should not intervene ‘where the complaining party failed to read the instrument, or, if he read it, failed to give heed to its plain terms.’ ” Mid-States General & Mechanical Contracting Corp. v. Town of Goodland, 811 N.E.2d 425, 435 (Ind.Ct.App.2004) (quoting Gierhart v. Consol. Rail Corp.-Conrail, 656 N.E.2d 285, 287 (Ind.Ct.App.1995)).

In Angel’s complaint filed against the Powelsons, she included a claim for reformation of her 1964 Warranty Deed based on her contention that she made a mistake (as to the actual amount of acres on her parcel and the actual location of one of the boundary lines) accompanied by fraud on the part of Kent’s grandmother, Nora, who died in 1980. Specifically, Angel contends that Nora represented to Angel that Nora was conveying 73 acres to Angel and that one of the boundary lines for the parcel would be east of Angel’s “dwelling house” that existed in 1964. Angel asserts that the actual property boundary lines contained in her 1964 Warranty Deed describe 71.6 acres and that one of the property boundary lines in that deed describes a boundary line that would have bisected the “dwelling house” that no longer exists on her parcel.

“A party seeking reformation on the grounds of fraud coupled with his unilateral mistake has the burden of proving the alleged fraud and his resultant mistake.” Ruff v. Charter Behavioral Health Sys. of Nw. Indiana, Inc., 699 N.E.2d 1171, 1173 (Ind.Ct.App.1998), reh’g denied, trans. denied. To prove fraud, a plaintiff must establish the following elements: (1) a material misrepresentation of past or existing fact which (2) was untrue, (3) was made with knowledge of or in reckless ignorance of its falsity, (4) was made with the intent to deceive, (5) was rightfully relied upon by the complaining party, and (6) which proximately caused the injury or damage of which the plaintiff complains. Lawyers Title Ins. Corp. v. Pokraka, 595 N.E.2d 244, 249 (Ind.1992), reh’g denied; Ruff, 699 N.E.2d at 1173.

Here, however, the trial court, in granting summary judgment to the Powelsons, concluded that Angel’s claim for reformation of the 1964 Warranty Deed was barred by laches. Laches is an equitable defense that may be raised to stop a person from asserting a claim she would normally be entitled to assert. Indiana Real Estate Comm’n v. Ackman, 766 N.E.2d 1269, 1273 (Ind.Ct.App.2002). “Laches is neglect for an unreasonable length of time, under circumstances permitting diligence, to do what in law should have been done.” Gabriel v. Gabriel, 947 N.E.2d 1001, 1007 (Ind.Ct.App.2011). “The general doctrine is well established and long recognized: ‘Independently of any statute of limitation, courts of equity uniformly decline to assist a person who has slept upon his rights and shows no excuse for his laches in asserting them.’ ” SMDfund, 831 N.E.2d at 729 (quoting Penn Mutual Life Ins. Co. v. Austin, 168 U.S. 685, 698, 18 S.Ct. 223, 42 L.Ed. 626 (1898)).

The doctrine of laches may bar a plaintiff’s claim if a defendant establishes the following three elements of laches: (1) inexcusable delay in asserting a known right; (2) an implied waiver arising from knowing acquiescence in existing conditions; and (3) a change in circumstances causing prejudice to the adverse party. SMDfund, 831 N.E.2d at 729. A mere lapse of time is not sufficient to establish laches; it is also necessary to show an unreasonable delay that causes prejudice or injury. Id. at 731. Prejudice may be created if a party, with knowledge of the relevant facts, permits the passing of time to work a change of circumstances by the other party. Id.

In regard to applying laches to a claim involving real property, we have explained:

No doctrine is so wholesome, when wisely administered, as that of laches. It prevents the resurrection of stale titles, and forbids the spying out from the records of ancient and abandoned rights. It requires of every owner that he take care of his property, and of every claimant that he make known his claims. It gives to the actual and longer possessor security, and induces and justifies him in all efforts to improve and make valuable the property he holds. It is a doctrine received with favor, because its proper application works out justice and equity, and often bars the holder of a mere technical right, which he has abandoned for years, from enforcing it when its enforcement will work large injury to many.

Hutter v. Weiss, 132 Ind.App. 244, 257,177 N.E.2d 339, 346 (1961) (quoting Ryason v. Dunten, 164 Ind. 85, 98, 73 N.E. 74, 78 (1905)).

Angel contends that the trial court’s grant of summary judgment based on lach-es was erroneous because the Powelsons failed to show that they were prejudiced by any delay in her bringing her claim for reformation of a deed and that they failed to show that she had knowledge of her right. Specifically, in regard to knowledge, Angel contends that she did not know until 2009 that she was conveyed less than 73 acres. She contends that her lack of knowledge was caused by fraud and that there is a question of fact as to whether she had the knowledge or the means of obtaining the knowledge that she was conveyed less than 73 acres. We disagree.

Here, the designated evidence reveals that Nora conveyed property to Angel and her husband in 1964. It is undisputed that Angel’s 1964 Warranty Deed explicitly sets forth that the total amount of acres conveyed was “seventy-three (73) acres, more or less.” (App. 22). Thus, the total number of acres conveyed was on the face of the instrument Angel now seeks to reform. Angel, however, waited forty-six years after receiving her 1964 Warranty Deed to bring her claim for reformation of the deed.

We acknowledge that our Court has stated that knowledge of a right, for the purpose of laches, cannot be based merely on constructive knowledge. See Fields v. Evans, 484 N.E.2d 36, 39 (Ind.Ct.App.1985). However, our Supreme Court has explained that a party, even if unaware, could be charged with knowledge for the purpose of laches based on the public nature of the information at issue. See SMDfund, 831 N.E.2d at 729 (holding that party, who waited seventeen years after an airport authority was enacted by statute, to raise a challenge that the airport authority was improperly constituted would be charged with knowledge of the airport authority and its activities “by virtue of their public nature”). See also Simon v. Auburn, Bd. of Zoning Appeals, 519 N.E.2d 205, 215 (Ind.Ct.App.1988) (explaining that plaintiffs, who waited nearly seventeen years to challenge the validity of a zoning ordinance, could be charged with knowledge of and acquiescence of the ordinance and affirming judgment that laches barred attack on zoning ordinance); Rut-ter, 177 N.E.2d at 346 (“if the circumstances were such as to have put a person on inquiry, and the means of ascertaining the truth were readily available had inquiry been made, the neglect or failure to make such inquiry will charge the person with laches the same as though he had known the facts”).

Here, Angel’s 1964 Warranty Deed contained the property boundary lines of her parcel and specifically provided that the total number of acres contained in her parcel was 73 acres “more or less.” (App. 22). The deed was recorded in 1964 and, thus, was a matter of public record. Given the facts and circumstances set forth in the designated evidence, Angel can be charged with knowledge of her right. See Hutter, 177 N.E.2d at 346. Further, her failure to give heed to the “more or less” language contained in her 1964 Warranty Deed will not defeat the application of laches. See Mid-States, 811 N.E.2d 425 (explaining that equity should not intervene where complaining party failed to read instrument, or, if he read it, failed to give heed to its plain terms).

Additionally, the designated evidence shows that the Powelsons were prejudiced by Angel’s delay in asserting her right, which worked a change of circumstance for the Powelsons. Specifically, they were prejudiced by the death of witnesses, such as Kent’s grandmother Nora and Kent’s father, who could have provided “valuable testimony” regarding the conveyance of land in Angel’s 1964 Warranty Deed, any alleged representation made regarding the same, and the circumstances surrounding the conveyance. See Shafer v. Lambie, 667 N.E.2d 226, 231 (Ind.Ct.App.1996) (stating laches appeared to be viable defense where delay by plaintiff in asserting rights until after death of one of the parties deprived defendant of “valuable testimony” concerning relationship between the parties and the terms of alleged agreement). Because the designated evidence supports the trial court’s conclusion that Angel’s claim for reformation of a deed is barred by laches, we affirm the trial court’s grant of summary judgment to the Powelsons on this claim.

C. Adverse Possession

Lastly, Angel contends that the trial court erred by granting summary judgment to the Powelsons on her claim of adverse possession of the Roadway.

The doctrine of adverse possession is one that “entitles a person without title to obtain ownership to a parcel of land upon clear and convincing proof of control, intent, notice, and duration.” Fraley v. Minger, 829 N.E.2d 476, 486 (Ind.2005). The Fraley Court summarized these required elements as follows:

(1) Control — The claimant must exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land (reflecting the former elements of “actual,” and in some ways “exclusive,” possession);
(2) Intent — The claimant must demonstrate intent to claim full ownership of the tract superior to the rights of all others, particularly the legal owner (reflecting the former elements of “claim of right,” “exclusive,” “hostile,” and “adverse”);
(3) Notice — The claimant’s actions with respect to the land must be sufficient to give actual or constructive notice to the legal owner of the claimant’s intent and exclusive control (reflecting the former “visible,” “open,” “notorious,” and in some ways the “hostile,” elements); and
(4) Duration — The claimant must satisfy each of these elements continuously for the required period of time (reflecting the former “continuous” element).

Id. “The failure to establish any one element of an adverse possession claim defeats the claim.” Altevogt v. Brand, 963 N.E.2d 1146,1152 (Ind.Ct.App.2012)

Here, we cannot say that the trial court erred by granting summary judgment to the Powelsons on Angel’s claim of adverse possession to the Roadway. The undisputed designated evidence reveals that both Angel and the Powelsons were granted an easement to use the Roadway and that they both have used it for ingress and egress purposes. Thus, the elements of control and intent have been negated. See Altevogt, 963 N.E.2d at 1152-53 (holding that a plaintiffs acknowledgement that others had an easement and used the disputed property is inconsistent with a claim of adverse possession and negated elements of control and intent); Nodine v. McNerney, 833 N.E.2d 57, 66 (Ind.Ct.App.2005) (explaining that adverse possession claimants’ recognition of the rights of other lot owners to use the disputed areas showed that claimants were not exerting exclusive control thereof and did not intend to claim full ownership of those areas), clarified on reh’g, 835 N.E.2d 1041, trans. denied; see also Rieddle v. Buckner, 629 N.E.2d 860, 862 (Ind.Ct.App.1994) (noting that possession of land claimed by adverse possession was not exclusive where the claimant occupies the land in common with a third party). Accordingly, the trial court did not err by granting summary judgment to the Powelsons on Angel’s claim of adverse possession of the Roadway.

Affirmed.

FRIEDLANDER, J. and BROWN, J. concur.

      . Angel does not appeal the trial court's denial of her motion for partial summary judgment.

      . We direct the parties’ attention to Appellate Rule 46, which provides that the parties’ Statement of Facts "shall be in narrative form." Ind. App. R. 46(A)(6)(c); 46(B). We also direct the Powelsons’ counsel's attention to the requirement that the Statement of Facts be supported by citation to “page references to the Record on Appeal or Appendix.” Ind.App. R. 46(A)(6)(a); 46(B). Finally, we direct the Powelsons' counsel’s attention to the requirement that an appellate brief contain a Summary of Argument section. See Ind.App. R. 46(A)(7), 46(B).

      . Both Angel and the Powelsons have filed an appellate appendix. We will refer to Angel's Appendix as (App.) and to the Powelsons’ Appendix as (Appellees' App.).

      . The 1974 Warranty Deed conveyed the remaining portion of the eighty-acre parcel by specifically reciting the boundary description of Angel's Parcel as contained in her 1964 Warranty Deed and then specifically excluding Angel’s Parcel of seventy-three acres "more or less” from the conveyance. (App. 156).

      . The 1978 Warranty Deed contained the same specific reference to the property boundary description of Angel’s Parcel as contained in her 1964 Warranty Deed and then specifically excluded Angel’s Parcel of seventy-three acres “more or less” from the conveyance. (App. 158).

      . The Powelsons did not move for summary judgment on their claims contained in their counterclaim against Angel.

      . Kent’s father died in 1993.

      . This 1964 letter from Kent’s father to Kent’s grandmother provided, in part:
      Dear Mom,
      I hope this finds you feeling OK and that your possibilities of being able to wind up your stay there are better.
      5⅜ £ ⅜ ⅜ #
      I saw Mr. Angel last night. He and friends were picknicking [sic] on the bottom last night. He has [a] garden in down there. We will wind up the deal this coming week I’m sure. His loan is cleared. He has taken some things out and put them in the
      barn. (Garage type house cleaning junk)
      * * * * * *
      The apple trees and peach trees just south of South East corner of house are yours. The peach trees near the apple trees are all dead from Freeze.
      Actually from the description of land measurements of ground that is yours, the South east corner where the bathroom is, is on your ground. This is about how it looks [a hand drawn map of Kent’s Parcel, with apple trees, barn, house locations, was included in letter but is omitted here]
      The best way to get a good picture in your mind is to come home and get a first hand look, what do you think — agree?
      There is a twin sycamore of fair size growing where our first out house stood. Mr. Angel said he would deed or lease back the spot where house now stands if we feel we want it for front yard or whatever. He needed house to get the loan.
      I believe I told you [that] you retain 50% of oil and mineral Rights on the entire 80 acres.
      You will have a nice location to put a home of any kind on. And if you wish to put a mobile home here, you may, as I've told you before.
      * * * ⅝ ⅝ ⅝
      Lots of Love from us all — Charles Jr.
      (App. 340-41).

      . The transcript from the summary judgment hearing is not included in the record on appeal because Angel did not request it in her notice of appeal.

      . Again, Angel did not request a copy of the transcript from the summary judgment hearing. Therefore, it is unknown if, during that hearing, the trial court made a specific ruling on Angel’s objection or declined to strike or disregard the designated evidence.

      . In regard to Angel’s contention that the Powelsons’ inclusion of their answer and counterclaim in their designated evidence was improper because those pleadings were unverified, we acknowledge that our Indiana Supreme Court has held that ”[u]n-sworn statements and unverified exhibits do not qualify as proper Rule 56 evidence.” Ind. Univ. Med. Ctr., Riley Hosp. for Children v. Logan, 728 N.E.2d 855, 858 (Ind. 2000) (explaining that exhibits, consisting of uncertified documents and unsworn statements, attached to an affidavit were improper as designated evidence under Trial Rule 56(E)). However, we note that our Indiana Supreme has explained that when reviewing summary judgment ”[w]e must consider the pleadings and evidence sanctioned by Ind. Trial Rule 56(C) without deciding its weight or credibility.” Malachowski v. Bank One, Indianapolis, 590 N.E.2d 559, 562 (Ind.1992) (citing Webb v. Jarvis, 575 N.E.2d 992, 994 (Ind.1991), reh'g denied ). See also Ransburg v. Richards, 770 N.E.2d 393, 395 (Ind.Ct.App.2002), trans. denied. Nevertheless, even if we were not to consider these pleadings on our summary judgment review, we would still affirm the trial court's grant of summary judgment.

      . The house no longer existed on Angel’s Parcel when she filed her complaint in 2010. The designated evidence only reveals that the dwelling house was on Angel's Parcel in 1964 "and for a number of years thereafter[.j” (App. 16).

      . Because we conclude that the trial court properly granted summary judgment to the Powelsons based on the doctrine of laches, we need not address Angel’s other arguments regarding this claim.

      . In Fraley, our Supreme Court rephrased the traditional common law elements of adverse possession, which required a claimant prove the possession was (1) actual; (2) visible; (3) open and notorious; (4) exclusive; (5) under claim of ownership; (6) hostile; and (7) continuous for a statutory period of time. Fraley, 829 N.E.2d at 485.

      .In addition to satisfying the elements set forth in Fraley, a claimant or adverse possessor must comply with Indiana Code § 32-21-7-1 regarding payment of taxes. See Roberts v. Feitz, 933 N.E.2d 466, 479 (Ind.Ct.App.2010).


author: RILEY, Judge.

text:
    Mark CARTER and John E. Carter, Co-Personal Representatives of the Estate of John O. Carter, M.D., Deceased, Appellants-Defendants, v. Loretta ROBINSON, Individually and as Administratrix of the Estate of John E. Robinson, Deceased, Appellees-Plaintiffs.
    No. 45A05-1110-CT-563.
    Court of Appeals of Indiana.
    Oct. 30, 2012.

      Michael E. O’Neill, Randall J. Nye, Michelle P. Burchett, O’Neill McFadden & Willett, LLP, Dyer, IN, Attorneys for Appellants.
    Timothy S. Schafer, Todd S. Schafer, Timothy S. Schafer, II, Schafer & Schafer, Merrillville, IN, for Appellees.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendants, Mark Carter and John E. Carter, co-personal representatives of the Estate of John 0. Carter, M.D., deceased (Dr. Carter), appeal the verdict in the amount of $550,0000 in favor of Appellee-Plaintiff, Loretta Robinson, Individually and as Administratix of the Estate of John E. Robinson, Deceased (Robinson), following Robinson’s Complaint for medical malpractice.

We affirm.

ISSUES

Dr. Carter raises three issues on appeal, which we restate as follows:

(1) Whether the trial court abused its discretion when it allowed Robinson’s pathologist to testify as an expert witness pursuant to Indiana Evidence Rule 702;
(2) Whether the trial court abused its discretion when it excluded the testimony of Dr. Carter’s expert witness because he was not timely disclosed to Robinson; and
(3) Whether the trial court properly instructed the jury.

On cross-appeal, Robinson presents us with one issue, which we restate as: Whether Robinson is entitled to appellate attorney fees pursuant to Indiana Appellate Rule 66(E).

FACTS AND PROCEDURAL HISTORY

On December 2, 2002, sixty-one year old John Robinson (John) saw Dr. Carter with complaints of stress. John seemed nervous and anxious, stated that he heard noises in his head, and he was jerking his hand. Upon questioning, John told Dr. Carter that he had been in a motor vehicle accident two weeks earlier and had trouble sleeping. He did not complain of any shortness of breath, nor did Dr. Carter observe any. After a physical exam, Dr. Carter noted that John had puffy eyelids but his ears, nose, and throat appeared normal. His heart was in a regular sinus rhythm and Dr. Carter did not hear any gallop, murmur, or other abnormal sound. John’s lungs were clear and he did not have any lower extremity edema or abnormal abdominal bloating. Dr. Carter diagnosed John with severe stress and insomnia and prescribed him Xanax and Ambien.

That afternoon, John died. At the time of his death, John and his wife, Loretta, had been separated and were living apart. Robinson had not seen her husband since the week before and did not know that he had consulted Dr. Carter earlier that day. Following John’s passing, Robinson hired James Bryant, M.D. (Dr. Bryant) to perform an autopsy to determine the cause of John’s death.

On December 5, 2002, Dr. Bryant conducted the autopsy. The clinical summary of the autopsy states:

This patient was a 61 year old man who had high blood pressure, obesity problems and congestive heart failure. On the day of his death, he complained of shortness of breath and was shaking. He saw a physician who gave him Xanax and sent him home. He died at home a short time later. Other significant history includes obstructive sleep apnea and a recent auto accident with a fractured foot. There were no major surgeries or hospitalizations in the past.

(Exh. Tab 7, p. 1). During the autopsy, Dr. Bryant found fluid in John’s chest cavities, in the heart cavity, and in the abdominal cavity. In addition, Dr. Bryant noted that the right atrium of the heart and its left and right ventricles were dilated, and the lungs, liver, and spleen showed fluid congestion. He concluded that John had died from acute and chronic congestive heart failure, which had been “ongoing for some time[,] probably longer than one day as judged by the extent of the fluid accumulation in the chest, heart, and abdomen and by the dilation of the left and right ventricles.” (Exh. Tab 7, p. 7).

On October 26, 2004, Robinson filed a proposed complaint with the Indiana Department of Insurance alleging medical negligence and wrongful death against Dr. Carter. On November 3, 2008, the Medical Review Panel issued its conclusion with two members of the panel finding a material question of fact bearing on liability and with the third panel member finding that Dr. Carter had failed to comply with the appropriate standard of care. On January 20, 2009, Robinson filed her Complaint alleging medical malpractice by Dr. Carter which resulted in John’s death.

On July 31, 2009, during the course of discovery, Robinson identified Dr. Bryant as an expert witness and on April 20, 2011, six weeks before the scheduled trial date, Dr. Carter deposed Dr. Bryant. On April 26, 2011, Dr. Carter unexpectedly died and the scheduled June 2011 trial was continued to September 26, 2011. On August 19, 2011, Dr. Carter’s Estate filed a notice of amendment to his trial witness list, attaching the affidavit of Michael Kaufman, M.D. (Dr. Kaufman). Dr. Kaufman’s affidavit addressed the scientific methodology underlying the conclusions reached by Dr. Bryant, stating

In my professional opinion, Dr. Bryant’s conclusion that [John] died of “chronic and acute congestive heart failure” is scientifically unsound and unreliable because, in arriving at this conclusion, Dr. Bryant failed to rule out other possible competent causes for [John’s] sudden death, including: a pulmonary embolism, a ruptured cerebral aneurysm, an acute myocardial infarction, a drug overdose or a hemorrhagic cerebral infarction. Without the autopsy slides and paraffin blocks from the autopsy, and a more through autopsy examination and toxicology screen, Dr. Bryant’s conclusions regarding the cause of [John’s] death cannot be tested or confirmed and other possible alternative competent causes of the death cannot be ruled out.

(Appellant’s App. p. 390). Also that same day, Dr. Carter filed his motion to bar expert testimony of Dr. Bryant. On September 12, 2011, the trial court conducted a hearing on Dr. Carter’s amended witness list and his motion to bar Dr. Bryant’s testimony. The following day, the trial court rejected the addition of Dr. Kaufman as an expert witness and denied Dr. Carter’s motion to bar Dr. Bryant’s testimony. On September 20, 2011, Dr. Carter filed a motion to reconsider his request to add Dr. Kaufman as his witness; the trial court again denied his request.

On September 26-30, 2011, a jury trial was conducted. During trial, Dr. Carter renewed his objection to Dr. Bryant’s testimony but the trial court sustained its earlier ruling and permitted Dr. Bryant to testify. Before Dr. Carter rested, he made an offer of proof on the proposed impeachment testimony that would have been offered by Dr. Kaufman. On September 30, 2011, the jury returned a verdict in favor of Robinson, awarding damages in the amount of $550,000.

Dr. Carter now appeals and Robinson cross-appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Indiana Evidence Rule 702

Dr. Carter contends the trial court should have excluded Dr. Bryant’s testimony as an expert witness for Robinson pursuant to the directives of Ind. Evidence Rule 702. Indiana Evidence Rule 702 defines the guidelines for admission of expert testimony as follows:

(a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form or an opinion or otherwise.
(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.

The rule assigns to the trial court a gatek-eeping function of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. McCutchan v. Blanck, 846 N.E.2d 256, 260-61 (Ind.Ct.App.2006) (quoting Lytle v. Ford Motor Co., 814 N.E.2d 301, 309 (Ind.Ct.App.2004), tram, denied). As with the admission of other evidence, the trial court’s determination regarding the admissibility of expert testimony under Rule 702 is a matter within its broad discretion and will be reversed only for abuse of that discretion. See Lytle, 814 N.E.2d at 309. When faced with a proffer of expert scientific testimony, the court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology can be applied to the facts in issue. Id.

Indiana Evidence Rule 702 is not intended to interpose an unnecessary burdensome procedure or methodology for trial courts. Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 460 (Ind.2001). The adoption of Evid. R. 702 reflected an intent to liberalize, rather than to constrict, the admission of reliable scientific evidence. Id. As the Supreme Court instructed in Daubert, “[vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Cross-examination permits the opposing party to expose dissimilarities between the actual evidence and the scientific theory. Turner v. State, 953 N.E.2d 1039, 1055-56 (Ind.2011). These dissimilarities go to the weight rather than to the admissibility of the evidence. Id.

Focusing on the second prong of the rule, Dr. Carter’s main argument contests the methodology underlying Dr. Bryant’s autopsy. Seizing upon a partial statement uttered by Dr. Bryant during voir dire, Dr. Carter contends that by simply stopping the autopsy investigation in the cause of death upon the discovery of the first possible cause of death, Dr. Bryant failed to adhere to the differential etiology methodology in which alternative causes of death are excluded. In a related argument, Dr. Carter alludes to the scientific foundational facts which serve as the basis of Dr. Bryant’s opinion. Pointing to Dr. Bryant’s reliance on the medical symptoms obtained from Robinson, from whom John was separated, and Dr. Bryant’s lack of review of John’s medical history prior to commencing the autopsy, Dr. Carter argues that Dr. Bryant’s opinion with respect to John’s cause of death of congestive heart failure is not supported by reliable scientific facts. We will discuss each contention in turn.

A. Methodology

The brunt of Dr. Carter’s contention is reserved for Dr. Bryant’s methodology. When faced with a proffer of scientific testimony, the court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and reliable. Alsheik v. Guerrero, 956 N.E.2d 1115, 1126 (Ind.Ct.App.2011). Scientific knowledge admissible under Evid. R. 702 connotes more than subjective belief or unsupported speculation. Hannan v. Pest Control Services, Inc., 734 N.E.2d 674, 679 (Ind.Ct.App.2000). Thus, expert testimony must be supported by appropriate validation or “good grounds” based on what is known establishing a standard of eviden-tiary reliability. Id.

Focusing on the lack of appropriate validation, Dr. Carter asserts that “[r]ather than conduct a systemic analysis (or any analysis) to determine the scientifically reliable cause of death, [Dr. Bryant] limited himself to identifying the first possible cause of death he came upon on gross examination of the chest.” (Appellant’s Br. p. 26). In support of his argument, Dr. Carter refers to Dr. Bryant’s testimony during voir dire of his methodology. Specifically, when asked “that in arriving at a conclusion you stop your analysis of the — the analysis after you find the first possible cause of death[,]” Dr. Bryant responded, “That’s correct. When I see a cause of death, that’s what I conclude.” (Tr. p. 725). Highlighting Dr. Bryant’s answer, Dr. Carter maintains that Dr. Bryant failed to formulate a differential etiology to rule out other possible causes of death and as such, “Dr. Bryant’s methodology amounts to little more than unsubstantiated guesswork[.]” (Appellant’s Br. pp. 29-30).

We recently discussed and adopted the methodology of a “differential etiology” in Alsheik v. Guerrero, 956 N.E.2d 1115 (Ind.Ct.App.2011). Referencing Myers v. Illinois Central R. Co., 629 F.3d 639, 644 (7th Cir.2010), we stated in Alsheik that “[i]n a differential etiology, the doctor rules in all the potential causes of a patient’s ailment and then, by systematically ruling out causes that would not apply to the patient, the physician arrives at what is the likely cause of the ailment or death.” Alsheik, 956 N.E.2d at 1127. “There is nothing controversial about that methodology. The question is whether it is reliable [] is made under a case-by-case basis, focused on which potential causes should be ruled in and which should be ruled out.” Id. In essence, admissible expert testimony need not rule out all alternative causes, but where a defendant points to a plausible alternative cause and the doctor offers no explanation for why he or she has concluded that it was not the sole cause, that doctor’s methodology is unreliable. Henricksen v. ConocoPhillips Co., 605 F.Supp.2d 1142,1162 (E.D.Wash.2009).

Looking at the totality of Dr. Bryant’s testimony, we find that the autopsy report’s cause of death was derived by employing the differential etiology method. During his testimony, Dr. Bryant concluded that

I examined the body. I come to the conclusion that there’s more than one finding of congestive heart failure, which I listed on the final pathological diagnosis below the diagnosis itself. There’s right atrial dilation, passive congestion of the liver and the spleen, acute pulmonary edema and congestion, bilateral pleural effusion, peritoneal effusion, left ventricular dilation, right ventricular dilation. Those are all the anatomic findings that support my diagnosis of congestive heart failure.

(Tr. p. 853). Besides the medical findings from his examination which correlated with a diagnosis of congestive heart failure, Dr. Bryant also looked at other possible causes and ruled those out. Specifically, the following colloquy occurred between Robinson and Dr. Bryant:

[ROBINSON]: You, in fact, ruled pulmonary emboli out.
[DR. BRYANT]: Oh, I look for that. That’s one of the causes of sudden death.
[ROBINSON]: And he talked about acute MI, or a heart attack?
[DR. BRYANT]: I looked for that. That’s not—
[ROBINSON]: You ruled that out, didn’t you?
[DR. BRYANT]: Yeah.
⅜ ⅜ *
[ROBINSON]: You actually looked at all the coronary arteries?
[DR. BRYANT]: Right.

(Tr. pp. 732-38). In addition, Dr. Bryant testified that he checked the valves between the heart “for rheumatic fever and calcified valves that can affect the function of the heart.” (Tr. p. 763). He checked the trachea-bronchial tree leading to both lungs for obstructions as sudden aspiration can be one of the causes of sudden, unexpected death. He checked the pancreas and alimentary tract, lymph nodes, and genitalia. He also ruled out hepatitis, myocarditis, and pneumonia.

When being questioned about the possibility of John having incurred a cerebral aneurism, seizures or heart arrhythmia, Dr. Bryant responded that because of the nature of these potential causes, an autopsy could not detect these. Interrogated about the focal abnormality in the heart muscle, Dr. Bryant answered that the scarring damage was too small to contribute to a sudden heart attack.

In light of the totality of Dr. Bryant’s testimony, it is clear that based on the medical findings, Dr. Bryant “reliably rule[d] out reasonable alternative causes” and excluded all of them, except one. See Soldo v. Sandoz Pharmaceuticals Corp., 244 F.Supp.2d 434, 567 (W.D.Pa.2003). As such, we conclude that his expert opinion is based on a proper use of the differential etiology methodology.

B. Foundational Facts

In a related argument, Dr. Carter asserts that Dr. Bryant’s opinion on the cause of death is not supported by reliable facts. Specifically, Dr. Carter points to Dr. Bryant’s reliance on Robinson’s account of John’s physical condition. Prior to commencing his autopsy, Dr. Bryant contacted Robinson, as John’s wife, to get some background information on John’s health. At that point, unbeknownst to Dr. Bryant, Robinson had been separated from John for a year and she had no personal knowledge of John’s condition on the days before his death. During the interview, Robinson informed Dr. Bryant that John suffered from shortness of breath. Additionally, Dr. Carter alludes to the fact that Dr. Bryant performed the autopsy without consulting John’s medical records, failed to order a toxicology study, and did not weigh the organs or measure bodily fluids during the autopsy but merely guessed their weight.

First, Dr. Bryant testified that he diagnosed John’s cause of death based on his anatomic findings during the autopsy of the body, independently from and regardless of his interview with Robinson. Moreover, as we noted in Alsheik, Ind. Evidence Rule 702(b) only pertains to the reliability of scientific principles underlying an expert’s opinion, not to technical or other specialized knowledge or observations. See Alsheik, 956 N.E.2d at 1127 (quoting Malinski v. State, 794 N.E.2d 1071, 1084-85 (Ind.2003)). Here, Dr. Carter’s claim in essence amounts to the accepted conduct and procedures followed during an autopsy, rather than a cluster of scientific principles. His contention relates to the credibility and weight of Dr. Bryant’s testimony and is more appropriately reserved for cross-examination. See Sears Roebuck and Co., 742 N.E.2d at 461 (Once the trial court is satisfied that the expert’s testimony will assist the trier of fact and that the expert’s general methodology is based on reliable scientific principles, then the accuracy, consistency, and credibility of the expert’s opinions may properly be left to vigorous cross-examination, presentation of contrary evidence, argument of counsel, and resolution by the trier of fact.); Person v. Shipley, 962 N.E.2d 1192,1198 (Ind.2012) (“the dissimilarities between the actual weights and speeds of the vehicles [ ], and the [estimated] weights and speeds that [the expert] utilized in forming his opinion go to the weight and credibility of his testimony, not its admissibility.”). In sum, Dr. Bryant’s expert opinion on John’s cause of death was derived through the application of the differential etiology methodology, a scientific reliable and valuable procedure, and the trial court did not abuse its discretion by allowing Dr. Bryant’s testimony.

II. Dr. Carter’s Expert

Next, Dr. Carter asserts that the trial court abused its discretion when it excluded the testimony of his expert witness, Michael Kaufman, M.D. (Dr. Kaufman), who would have addressed the perceived flaws in Dr. Bryant’s methodology, because of Dr. Carter’s untimely disclosure of this witness. A trial court enjoys broad discretion in determining the appropriate sanctions for a party’s failure to comply with discovery orders. Vernon v. Kroger Co., 712 N.E.2d 976 (Ind.1999). “Discretion is a privilege afforded a trial court to act in accord with what is fair and equitable in each case.” Id. at 982. The trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances of the case, or if it misinterprets the applicable law. Id. at 976. One sanction available in cases where a party seeks to introduce evidence that violates the trial court’s discovery rules is the exclusion of that evidence. See Nyby v. Waste Management, Inc., 725 N.E.2d 905 (Ind.Ct.App.2000), trans. denied. Absent clear error and resulting prejudice, the trial court’s determinations with respect to violations and sanctions should not be overturned. Id.

Dr. Carter contends that the admissibility of Dr. Kaufman as an expert witness is to be analyzed in accordance with the principles set out in Wiseheart v. State, 491 N.E.2d 985 (Ind.1986), where our supreme court outlined the factors appropriate for a trial court to consider in determining its course of action when a party seeks to use the testimony of a witness whose identity is disclosed to the opponent after discovery has been closed. These factors include:

(1) Whether the nature of defendant’s violation was trivial or substantial. The trial court should consider when the witness first became known to defendant’s counsel.
(2) .How vital the potential witness’ testimony is to the defendant’s case. The trial court should determine the significance of the proffered testimony to the defense. Is the testimony relevant and material to the defense or merely cumulative?
(3) The nature of the prejudice to the State. Does the violation have a delete-rieras impact on the case prepared by the State?
(4) Whether the less stringent sanctions are appropriate and effective to protect the interest of both the defendant and the State.
(5) Whether the State will be unduly surprised and prejudiced by the inclusion of the witness’ testimony despite the available and reasonable alternative sanctions (e.g., a recess or a continuance) which can mitigate prejudice to the State by permitting the State to interview the witnesses and conduct further investigation, if necessary.

Id. at 991. In 2001, the Wiseheart standard was extended to civil cases by Davidson v. Perron, 756 N.E.2d 1007 (Ind.Ct.App.2001).

Dr. Bryant’s autopsy was initially disclosed on October 26, 2004, when Robinson commenced the lawsuit and it was included in the medical review panel’s submission. The autopsy report merely detailed Dr. Bryant’s findings and his diagnosis of the cause of death without specifying his underlying methodology. On July 31, 2009, Robinson identified Dr. Bryant as her expert witness. Throughout the proceedings, discovery was difficult and Dr. Carter had to resort to motions to compel discovery or to complete discovery requests on five separate occasions. Furthermore, despite eleven separate requests by Dr. Carter, Robinson did not make Dr. Bryant available for deposition until April 20, 2011, just six weeks before the scheduled trial. During the deposition, Dr. Bryant was questioned at length about his methodology and procedures used during the autopsy. On April 26, 2011, Dr. Carter unexpectedly died and the trial court rescheduled the trial to September 26, 2011. In May of 2011, Dr. Carter consulted with Dr. Kaufman and hired him to evaluate Dr. Bryant’s methodology and findings. On June 6, 2011, Dr. Carter’s attorney filed his witness disclosure list with the trial court, notifying the trial court that he might call as a witness “any and all persons necessary for rebuttal or impeachment purposes whose identity cannot be reasonably ascertained at this time.” (Appellant’s App. p. 120). Dr. Carter did not disclose Dr. Kaufman at that time. On August 19, 2011, Dr. Carter filed a notice of amendment to his trial witness list, identifying Dr. Kaufman as a rebuttal witness to the expert testimony of Dr. Bryant, along with a motion to bar Dr. Bryant’s testimony. Together with his notice of amendment, Dr. Carter filed Dr. Kaufman’s affidavit, which stated

In my professional opinion, Dr. Bryant’s conclusion that [John] died of “chronic and acute congestive heart failure” is scientifically unsound and unreliable because, in arriving at his conclusion, Dr. Bryant failed to rule out other possible competent causes for [John’s] sudden death, including: a pulmonary embolism, a ruptured cerebral aneurysm, an acute myocardial infarction, a drug overdose or a hemorrhagic cerebral infarction. Without the autopsy slides and paraffin blocks from the autopsy, and a more thorough autopsy examination and toxicology screen, Dr. Bryant’s conclusions regarding the cause of [John’s] death cannot be tested or confirmed and other possible alternative competent causes of death cannot be ruled out.

(Appellant’s App. p. 390).

On September 7, 2011, Robinson filed an objection to add Dr. Kaufman as a witness and opposed barring Dr. Bryant’s testimony. After a hearing on September 12, 2011, the trial court denied both of Dr. Carter’s motions, concluding that:

The defense has known for many months, perhaps years of [Robinson’s] intention to call Dr. Bryant as a witness. The defense has also had the autopsy report and certificate of death containing Dr. Bryant’s opinions. The late disclosure of Dr. Kaufman by the defense, coming just weeks before trial, would work an undue prejudice to [Robinson],

(Appellant’s App. p. 18).

Applying the Wiseheart principles, we agree with the trial court’s exclusion of Dr. Kaufman’s testimony. While we disapprove of Robinson’s deldy in making Dr. Bryant available for deposition, it should be noted that Dr. Carter did not request the availability of Dr. Bryant for deposition until August 80, 2010 — more than a year after Dr. Bryant had been disclosed as an expert witness for Robinson. Furthermore, even though the need for Dr. Kaufman’s testimony became evident to Dr. Carter on April 20, 2011 and Dr. Carter hired Dr. Kaufman in May 2011, he failed to timely disclose Dr. Kaufman as his expert witness on June 6, 2011 but instead waited until approximately five weeks before trial to formally identify Dr. Kaufman and the content of his testimony. Although Dr. Kaufman’s testimony was intended to place doubt on Dr. Bryant’s methodology, during cross-examination of Dr. Bryant, Dr. Carter managed to achieve that exact result. Dr. Carter pointed out the weaknesses and perceived flaws within Dr. Bryant’s methodology and foundational facts and placed those squarely before the jury. In sum, failing to find clear error and prejudice, we conclude that the trial court did not abuse its discretion when it excluded Dr. Kaufman as a witness and we will not interfere with that decision.

III. Jury Instruction

Lastly, Dr. Carter contends that the trial court abused its discretion when it refused to tender his proposed instruction to the jury. Specifically, Dr. Carter requested the trial court to give the jury the following final instruction:

DEFENDANT’S FINAL JURY INSTRUCTION NO. 3 You, the jury, are to determine whether [Dr. Carter] exercised reasonable care for a family practice physician in light of the conditions as shown by the evidence to have actually existed in 2002 when he was rendering care to [John]. This determination should not be based on hindsight.

(Appellant’s App. p. 22). Robinson objected to the inclusion of the last sentence, which was sustained by the trial court. Consequently, the proposed instruction was read to the jury without reference to the use of hindsight.

Instructions serve to inform the jury of the law applicable to the facts presented at trial, enabling it to comprehend the case sufficiently to arrive at a just and correct verdict. Blocher v. De-Bartolo Properties Management, Inc., 760 N.E.2d 229, 235 (Ind.Ct.App.2001), trans. denied. Jury instructions are committed to the sound discretion of the trial court. Id. In evaluating the propriety of a given instruction, we consider 1) whether the instruction correctly states the law, 2) whether there is evidence in the record supporting the instruction, and 3) whether the substance of the instruction is covered by other instructions. Id. An erroneous instruction warrants reversal only if it could have formed the basis for the jury’s verdict. Id.

The propriety of referencing the applicability of hindsight in jury instructions was first discussed in Dahlberg v. Ogle, 268 Ind. 30, 373 N.E.2d 159 (1978). In Dahl-berg, the trial court tendered, over objection, a jury instruction which included an explicit hindsight prohibition and which stated “[y]ou are to determine whether or not the defendant was negligent in one of the ways charged by the plaintiff upon the conditions as they existed in January 1971, as alleged by plaintiff. You are not to utilize retrospection or hindsight.” Id. at 164 (emphasis added). After reviewing this instruction, our supreme court stated:

This instruction is not in a form which we would recommend. Nevertheless, its import is sufficiently clear and we do not believe it would have confused or misled the jury.

Id.

Here, the trial court sustained Robinson’s objection to Dr. Carter’s proffered instruction, which included the hindsight language now at issue, and declined to instruct the jury as to an explicit hindsight prohibition. We find no text in Dahlberg articulating a requirement for a hindsight jury instruction. Therefore, there was no error in the trial court’s omission of the explicit hindsight prohibition from Final Instruction No. 3.

Nevertheless, even if there were error here, it would be harmless. Final Instruction No. 8 included the caution that:

In providing health care to a patient, a family practitioner must use the degree of care and skill that a reasonably careful, skillful, and prudent family practitioner would use under the same or similar circumstances.

(Appellee’s App. pp. 30-81) (emphasis added). As such, Final Instruction No. 8 included language similar in form and substance to the general prohibition on the use of hindsight found within the totality of Final Instruction No. 3.

CROSS-APPEAL

On cross-appeal, Robinson requests this court to award her appellate attorney fees pursuant to Indiana Appellate Rule 66(E), claiming that Dr. Carter’s appeal was undertaken in bad faith. Indiana Appellate Rule 66(E) provides, in pertinent part, that we “may assess damages if an appeal ... is frivolous or in bad faith. Damages shall be in the [c]ourt’s discretion and may include attorney’s fees.” Our discretion to award attorney fees under this rule is limited, however, to instances when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay. Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind.Ct.App.2003). Additionally, while Indiana Appellate Rule 66(E) provides this court with discretionary authority to award damages on appeal, we must use extreme restraint when exercising this power because of the potential chilling effect upon the exercise of the right to appeal. Id. A strong showing is required to justify an award of appellate damages and the sanction is not imposed to punish mere lack of merit but something more egregious. Harness v. Schmitt, 924 N.E.2d 162,168 (Ind.Ct.App.2010).

Indiana appellate courts have formally categorized claims for appellate attorney fees into substantive and procedural bad faith claims. Id. To prevail on a substantive bad faith claim, the party must show that the appellant’s contentions and arguments are utterly devoid of all plausibility. Id. Substantive bad faith implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. In Re Estate of Carnes, 866 N.E.2d 260, 269 (Ind.Ct.App.2007). Procedural bad faith, on the other hand, occurs when a party flagrantly disregards the form and content requirements of the rules of appellate procedure, omits and misstates relevant facts appearing in the record, and files briefs written in a manner calculated to require the maximum expenditure of time both by the opposing party and the reviewing court. Harness, 924 N.E.2d at 168.

In her request for appellate attorney fees, Robinson relies on the substantive prong of the bad faith requirement, contending that “it is quite clear that Dr. Carter simply made up preposterous arguments for the sole purpose of delaying payment to Robinson and causing Robinson and her counsel to expend the maximum amount of time and money in order to collect the compensation which she has been entitled to since December 2, 2002, the date of her husband’s death.” (Appel-lee’s Br. pp. 26-27). Robinson advances two instances of purported substantive bad faith: (1) a meritless appeal and (2) the omission in Appellant’s Appendix of the June 6, 2011 witness disclosure list.

Although we ultimately find Dr. Carter’s claims unpersuasive, however, because he supported his challenge with pertinent legal authority from which an argument could have been made and phrased it in a cogent manner, we do not find his contentions utterly devoid of all plausibility. His challenge is consistent with reasonable advocacy and we cannot find any evidence that Dr. Carter deliberately presented such issues so as to delay Robinson’s receipt of an award. We conclude that Dr. Carter’s appeal possesses sufficient merit to withstand an award of attorney fees. Therefore, we deny Robinson’s request for appellate attorney fees.

CONCLUSION

Based on the foregoing, we hold that (1) the trial court did not abuse its discretion when it allowed Robinson’s pathologist to testify as an expert witness pursuant to Indiana Evidence Rule 702; (2) the trial court appropriately excluded the testimony of Dr. Carter’s expert witness because he was not timely disclosed to Robinson; and (3) the trial court properly instructed the jury. With respect to Robinson’s cross-appeal, we deny his request for appellate attorney fees pursuant to Indiana Appellate Rule 66(E).

Affirmed.

BAILEY, J. and CRONE, J., concur.


author: MAY, Judge.

text:
    Kevin M. CLARK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 20A05-1202-CR-62.
    Court of Appeals of Indiana.
    Oct. 31, 2012.

      Marielena Duerring, Duerring Law Office, South Bend, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Kevin Clark appeals the admission of evidence found in his bag and in the trunk of his car. He also appeals the admission of police testimony regarding the conversion of pseudoephedrine to methamphetamine. We affirm.

FACTS AND PROCEDURAL HISTORY

On August 25, 2011, Robert Dunlap, the owner of a self-storage facility, contacted police because he believed someone was living in a storage unit in violation of the rental agreement. Sergeant Michael McHenry and Officer Dustin Lundgren arrived at the scene at approximately midnight and went to the storage unit. Sergeant McHenry observed three men, including Clark, leaving the storage unit. Clark was carrying a black duffel bag and, when asked to stop, he sat the bag on the ground. Sergeant McHenry asked the men to sit on the ground, and they complied. Sergeant McHenry asked Clark if he had anything illegal in the bag, and Clark admitted there was marijuana in the bag. Sergeant McHenry searched the bag without a warrant or Clark’s consent. He found marijuana, baggies of methamphetamine, pseudoephedrine pills, a butane lighter, and clear plastic baggies.

Based on the items found in Clark’s bag, Sergeant McHenry suspected there may be an active methamphetamine lab on site. Sergeant McHenry took his drug-sniffing dog to investigate Clark’s car, and the dog indicated two areas where drugs might be found in the vehicle. Sergeant McHenry found marijuana in the vehicle and, upon opening the trunk, detected an ammonia-type smell consistent with methamphetamine manufacture. Sergeant McHenry opened a tool box in the trunk, determined the methamphetamine laboratory inside was not active, and obtained a search warrant for the vehicle. Sergeant McHenry called Trooper Maggie Shortt to the scene, and she processed the methamphetamine lab.

The State charged Clark with Class A felony attempted dealing in methamphetamine, Class D felony possession of chemical reagent or precursors with intent to manufacture controlled substances, and Class A misdemeanor possession of marijuana. After a jury trial, Clark was convicted of Class A felony attempted dealing in methamphetamine and sentenced to forty-five years incarcerated.

DISCUSSION AND DECISION

Admission of evidence is within the sound discretion of the trial court, and we review its decision for an abuse of discretion. Cox v. State, 774 N.E.2d 1025, 1026 (Ind.Ct.App.2002). An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before the court. Id. We consider only the evidence in favor of the trial court’s decision. Id. Clark argues the trial court abused its discretion when it admitted evidence procured from an illegal search and seizure of Clark’s bag.

1. Search and Seizure of Clark’s Bag

The Fourth Amendment to the United States Constitution provides;

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Officer McHenry’s initial search of Clark’s bag and vehicle occurred without a warrant. When a search is conducted without a warrant, the search must fall within one of the exceptions to the warrant requirement and be constitutionally reasonable. Berry v. State, 704 N.E.2d 462, 465 (Ind.1998). Warrantless searches may be constitutional when: (1) incident to an arrest, which requires probable cause a crime has been committed, or (2) as part of an investigative stop, which requires reasonable suspicion a crime may be occurring or is about to occur. Overstreet v. State, 724 N.E.2d 661, 663 (Ind.Ct.App.2000), reh’g denied.

Clark argues the officers did not have reason to believe criminal activity was afoot. We disagree. The police were summoned to the storage facility by its owner, who believed one of the tenants was committing criminal trespass by living in the storage unit in violation of the storage facility rental agreement. That report gave the officers reasonable suspicion of criminal activity, which justified stopping the tenant, Clark, and the third man with them. See State v. Eichholtz, 752 N.E.2d 163, 167 (Ind.Ct.App.2001) (911 call from identified source sufficient to establish reasonable suspicion).

Just after the officers stopped the three men, Clark admitted he had marijuana in the bag he was carrying. That admission gave Officer McHenry probable cause to search the bag. See State v. Spillers, 847 N.E.2d 949, 955 (Ind.2006) (an admission of criminal activity is sufficient to support probable cause).

Because the officers had reasonable suspicion to stop the men and because Clark admitted his bag contained marijuana, we cannot say the trial court abused its discretion in admitting the items found in Clark’s black duffel bag.

2. Testimony Regarding Conversion of Pseudoephedrine to Methamphetamine

To prove Clark committed Class A felony attempted dealing in methamphetamine, the State had to prove Clark possessed more than three grams of methamphetamine. See Ind.Code § 35^8-4-1(b)(1). During trial, over Clark’s objection, the Prosecutor elicited the following testimony from Trooper Shortt:

[State]: Trooper Shortt, you testified that you yourself have manufactured methamphetamine?
[Shortt]: Correct.
[State]: And you’ve been involved in investigations in over 200 methamphetamine laboratories?
[Shortt]: Correct.
[State]: So you’ve seen how much finished product is typically produced in methamphetamine one-pot methods; is that fair to say?
[Shortt]: I’ve seen meth at scenes.
[State]: Okay.
[Shortt]: I can’t sit up here and testify that the meth that I see at scenes came from the cook that was currently going on, because, generally, the cooks that are currently going on that I process have not reached the HC1 phase.
[State]: Okay. When you did the methamphetamine cooks yourself, did it go through the HC1 phase?
[Shortt]: It did.
[State]: And did it receive an amount at that point in time that you could see?
[Shortt]: That I could see, yes.
[State]: Typically, how much quantity would you see when it went through the final stage, and it precipitated out into a solid form?
[Shortt]: It looked to be over 50 percent of what we started with.
[State]: Okay. So in your experience it was over a 50 percent from the amount that you put in of pseu-doephedrine to what you actually saw come out in the end; is that fair to say?
[Shortt]: Yes.

(Tr. at 569-70.) Clark argues the trial court abused its discretion when it allowed Trooper Shortt to testify regarding the conversion ratio of pseudoephedrine to methamphetamine. We disagree.

Ind. Evidence Rule 701 provides:

If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact at issue.

A skilled witness is one who has “a degree of knowledge short of that sufficient to be declared an expert under Rule 702, but somewhat beyond that possessed by the ordinary jurors.” Mariscal v. State, 687 N.E.2d 378, 380 (Ind.Ct.App.1997) (quoting 13B Robert L. Miller Jr., Courtroom Handbook on Indiana Evidence 196 (1996)), trans. denied. A police officer’s experience and training may be the foundation for skilled witness testimony. Stephenson v. State, 742 N.E.2d 463, 480 (Ind.2001), cert. denied 534 U.S. 1105, 122 S.Ct. 905,151 L.Ed.2d 874 (2002).

Trooper Shortt’s testimony was rationally based on her perceptions and was helpful to the determination of facts at issue in the case. Trooper Shortt testified she had investigated over 200 methamphetamine labs and had twice cooked methamphetamine herself. She began investigating methamphetamine laboratories in 2007, completed a forty-hour course on the manufacture of methamphetamine, and participated in a twenty-four hour job training at the Indiana State Police clandestine laboratory. She is required to take at least eight hours of refresher training each year. Her testimony could reasonably assist the jury in deciding whether Clark possessed the components to produce more than three grams of methamphetamine. For these reasons, we hold the trial court did not abuse its discretion when it allowed Trooper Shortt to testify over Clark’s objection.

CONCLUSION

The trial court did not abuse its discretion in admitting the evidence gleaned from the search of Clark’s bag and car because the officers had reasonable suspicion to stop Clark and search Clark’s bag after he admitted it contained marijuana. Nor did the trial court abuse its discretion when it allowed Trooper Shortt to testify over Clark’s objection because her testimony was opinion testimony of a lay witness based on her experience, and not expert testimony. Accordingly, we affirm.

Affirmed.

NAJAM, J., and KIRSCH, J„ concur.

      . Clark listed sufficiency of the evidence as an issue on appeal, but he makes no argument regarding that issue. Therefore, we decline to address it. See Ind. Appellate Rule 46(A)(8)(a); Matheney v. State, 688 N.E.2d 883, 907 (Ind.1997) (failure to make a cogent argument on appeal waives the issue for our consideration).

      . Ind.Code § 35-41-5-1 (attempt); Ind.Code § 35 — 48—4—1 (b)( 1) (dealing in cocaine or narcotic drug).

      . Ind.Code § 35-48-4-14.5(a).

      . Ind.Code § 35-48-4-11.

      . Clark does not challenge the admission of the evidence based on the Indiana Constitution.

      . Clark also argues Officer McHenry's search of Clark’s car was illegal because it was tainted by the illegal search of his bag. However, as the search of his bag was constitutional, it could not have tainted the search of his car, and we need not address this argument. See, e.g., Aldrich v. Coda, 732 N.E.2d 243, 245 n. 2 (Ind.Ct.App.2000) (court declined to address subsequent issue when decision regarding initial issue precluded such argument).


text:
    Robertson FOWLER, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 49A05-1202-PC-68.
    Court of Appeals of Indiana.
    Oct. 31, 2012.

      Stephen T. Owens, Public Defender of Indiana, Deidre R. Eltzroth, Assistant Chief Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Robertson Fowler appeals the denial of his petition for post-conviction relief. We affirm.

FACTS AND PROCEDURAL HISTORY

The State charged Fowler with Class B felony unlawful possession of a firearm by a serious violent felon, Class D felony pointing a firearm, Class D felony resisting law enforcement, and being an habitual offender. He agreed to plead guilty to the unlawful possession of a firearm charge and the habitual offender enhancement. In exchange the other charges would be dismissed and Fowler’s executed sentence would be capped at thirty-five years.

When Fowler entered into his plea agreement, Indiana law permitted the State to use the same prior felony to support a charge of unlawful possession of a firearm by a serious violent felon and to support an habitual offender enhancement. See Townsend v. State, 793 N.E.2d 1092, 1097 (Ind.Ct.App.2003), trans. denied.

Fowler was sentenced to thirty years executed — fifteen years for the firearm charge and fifteen for the habitual offender enhancement. He appealed the sentence. In June of 2007, after the State filed its Appellee’s brief, but while Fowler still could have filed a reply brief, our Indiana Supreme Court decided Mills v. State, which held “a defendant convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the defendant was a ‘serious violent felon’ ” 868 N.E.2d 446, 450 (Ind.2007) (internal citation and quotation omitted). Fowler’s appellate counsel did not file a reply brief or Notice of Additional Authorities to assert the Mills decision might render Fowler’s sentence improper. Nor did he raise the issue in his transfer petition. Fowler’s sentence was affirmed on appeal, and his motion for post-conviction relief, which was premised on the Mills decision, was denied.

DISCUSSION AND DECISION

Post-conviction proceedings are not “super appeals” through which convicted persons can raise issues they did not raise at trial or on direct appeal. Wilson v. State, 799 N.E.2d 51, 53 (Ind.Ct.App. 2003). Rather, post-conviction proceedings afford petitioners a limited opportunity to raise issues that were unavailable or unknown at trial and on direct appeal. Id. Post-conviction proceedings are civil in nature, and petitioners bear the burden of proving their grounds for relief by a preponderance of the evidence. Id. When a petitioner appeals the denial of post-conviction relief, he appeals from a negative judgment. Id. Consequently, we may not reverse unless the petitioner demonstrates the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. Id. We accept the post-conviction court’s findings of fact unless they are clearly erroneous, but we do not defer to its conclusions of law. Id.

1. Illegal Sentence

Even though Fowler’s sentence would presumably have been illegal under the Mills rule, Fowler lost his right to pursue a challenge to it by entering into his plea agreement. A defendant may not enter a plea agreement calling for an illegal sentence, benefit from that sentence, and then later complain the sentence was illegal. Stites v. State, 829 N.E.2d 527, 529 (Ind.2005). Defendants who plead guilty to achieve favorable outcomes give up a plethora of substantive claims and procedural rights, such as challenges to convictions that would otherwise subject the defendant to double jeopardy. Id. As Fowler received a benefit from his plea agreement, he is precluded from challenging his sentence as illegal.

In Stites, our Indiana Supreme Court held striking a favorable bargain, including a consecutive sentence the court might otherwise not have the ability to impose, precludes a later challenge. Id. Stites received a significant benefit from her plea agreement in that she received less than the maximum possible sentence of sixty years, and the State agreed not to seek the death penalty. Similarly, in Mills, our Indiana Supreme Court noted “[ajmong the favorable outcomes Mills achieved were resolution of other charges pending against him and a sentence on those charges concurrent with that on the charges discussed in this opinion. Mills relinquished the right to challenge his sentence as an impermissible double enhancement when he pled guilty.” 868 N.E.2d at 458.

Fowler received a benefit from his plea. The State charged Fowler with Class B felony unlawful possession of a firearm by a serious violent felon, Class D felony pointing a firearm, Class D felony resisting law enforcement, and being an habitual offender. Those charges could have exposed him to a sentence as long as fifty-six years. He negotiated a plea agreement whereby he agreed to plead guilty to possession of a firearm by a serious violent felon and to being an habitual offender. In exchange, the State agreed to dismiss the two Class D felonies and the parties agreed to a thirty-five year sentencing cap. The trial court sentenced Fowler to fifteen years on the firearm charge, which was enhanced by fifteen years on the habitual offender count that, pursuant to Mills, should not have been imposed.

We acknowledge Fowler’s argument that the original charges, without the habitual offender enhancement that would later be declared improper in Mills, could have exposed Fowler to a maximum sentence of only twenty-six years. Instead, he agreed to a sentencing cap of thirty-five years and was ultimately sentenced to thirty. Fowler argues he therefore could not have benefitted from that plea agreement.

We must decline Fowler’s invitation to measure his “benefit” at a time after he entered into the plea agreement. When he and the State entered into the agreement, Fowler faced as many as fifty-six years and he bargained for a maximum of thirty-five. As plea agreements are contracts, principles of contract law can provide guidance in the consideration of the agreement. Lee v. State, 816 N.E.2d 35, 38 (Ind.2004). Where a defendant enters a plea of guilty knowingly, intelligently, and voluntarily, there is no compelling reason to set aside the conviction on the ground the sentence was later determined to be invalid. Id. at 39.

Generally, unless a contract provides otherwise, all applicable law in force when the agreement is made impliedly forms a part of the agreement without any statement to that effect. Ethyl Corp. v. Forcum-Lannom Associates, Inc., 433 N.E.2d 1214, 1220 (Ind.Ct.App.1982). Laws enacted after the execution of the agreement are not deemed part of the agreement unless the contractual language clearly indicates that was the intention of the parties; the parties are presumed to have had the law in mind. Id.

As Fowler received a benefit at the time he entered into his plea bargain, he may not now challenge the sentence as illegal.

2. Effectiveness of Appellate Counsel

In light of our resolution of the first issue, Fowler was not prejudiced by appellate counsel’s failure to raise Mills on direct appeal, and thus counsel’s assistance was not constitutionally ineffective. See, e.g., Bieghler v. State, 690 N.E.2d 188, 200 (Ind.1997) (Bieghler was not prejudiced by appellate counsel’s failure to present certain issues, thus appellate counsel was not ineffective), reh’g denied,, cert, denied. However, we must address the State’s suggestion that ineffective assistance cannot be found if appellate counsel does not testify in a post-conviction proceeding.

The State correctly notes that deciding what issues to raise is one of the most important strategic decisions to be made by appellate counsel, Taylor v. State, 717 N.E.2d 90, 94 (Ind.1999), and that we give considerable deference to appellate counsel’s strategic decisions. Id. We therefore will not find deficient performance in counsel’s choice of some issues over others when the choice was reasonable in light of the facts of the case and the precedent available when the decision was made. Id.

The State then speculates, with no explanation or citation to the record, that Fowler’s appellate counsel might have had strategic reasons for declining to raise the Mills decision on appeal. It suggests Fowler “might have directed [counsel] not to pursue the issue,” (Br. of Appellee at 12), even though it might have reduced Fowler’s sentence by fifteen years, or that Fowler might have had another felony that would have supported the habitual offender charge.

While we have no doubt it is more difficult to prove entitlement to post-conviction relief without the testimony of counsel, we cannot adopt the State’s apparent position that post-conviction relief is never available when appellate counsel does not testify in the postconviction proceedings because “[i]t is possible [counsel] had reasons for not pursuing a claim.” (Id.) As it is presumably always “possible” there are unknown or undisclosed “reasons for not, pursuing a claim,” adopting the State’s rationale would effectively preclude a post-conviction remedy in any case where counsel did not testify. We decline the State’s invitation to so hold. And see McElroy v. State, 864 N.E.2d 392, 396 (Ind.Ct.App.2007) (proposition that a petitioner’s failure to present evidence from counsel can support an inference that counsel would not have corroborated the petitioner’s allegations “is applicable when the petitioner’s allegations involve questions of fact or issues involving credibility”), trans. denied. Effectiveness of counsel is a mixed question of law and fact. Id.

As Fowler lost his right to challenge his illegal sentence by entering into a beneficial plea agreement, we affirm the denial of his petition for post-conviction relief.

Affirmed.

KIRSCH, J., and NAJAM, J., concur.

      . Ind.Code § 35-47-4-5.

      . Ind.Code § 35-47-4-3.

      . Ind.Code§ 35-44.1-3-1.

      . Ind.Code § 35-50-2-8.

      . Fowler also argues his plea was not knowing and voluntary: "the parties in the instant case accepted the rule of Townsend ... and "[h]ad Fowler been accurately advised [about Mills], he would have been advised that he could not be both convicted as a serious violent felon and receive enhancement of that sentence under the general habitual offender statute.” (Br. of Petitioner-Appellant at 10.) Townsend was the controlling precedent when Fowler agreed to plead guilty, and he could not have been "accurately advised,” id., about Mills because it had not yet been decided. We therefore cannot find his plea unknowing or involuntary.

      . "A person who commits a Class D felony shall be imprisoned for a fixed term of between six (6) months and three (3) years.” Ind.Code § 35-50-2-7. "A person who commits a Class B felony shall be imprisoned for a fixed term of between six (6) and twenty (20) years with the advisory sentence being ten (10) years.” Ind.Code § 35-50-2-5. The court shall sentence a person found to be a habitual offender to an additional fixed term that is not less than the advisory sentence for the underlying offense nor more than three times the advisory sentence for the underlying offense. However, the additional sentence may not exceed thirty years. Ind.Code § 35-50-2-8.

      . The State directs us to nothing in the record to suggest there was any such additional felony. If there is support in the record for the State’s argument, the State is obliged to present it. See Ind. Appellate Rules 46(A)(8)(a) and 46(B) (each contention in an appellate brief must be supported by supported by cogent reasoning and citations to the parts of the Record on Appeal relied on). If no support can be found in the record, we admonish tire State to refrain from speculation it knows, or should know, cannot be supported.