author: BAKER, Judge. BRADFORD, Judge,

text:
    AMERICAN COLD STORAGE, et al., Appellants-Plaintiffs, v. The CITY OF BOONVILLE, Appellee-Defendant.
    No. 87A01-1112-PL-610.
    Court of Appeals of Indiana.
    Oct. 9, 2012.

      Leslie C. Shively, Shively & Associates, P.C., Evansville, IN, Jon Laramore, Faegre Baker Daniels LLP, Indianapolis, IN, Attorneys for Appellants.
    James L. Petersen, Timothy E. Ochs, Brian J. Paul, Ice Miller LLP, Indianapolis, IN, Attorneys for Appellee.

      . I would note that the Landowners could also have sought remonstrance under Indiana Code section 36 — 4—3—1 l(a)(2)’s "75% rule,” but apparently did not. Subsection (2) allows appeal from annexation by a remonstrance signed by "the owners of more than seventy-five percent (75%) in assessed valuation of the land in the annexed territory.” Indeed, application of the 75% rule would greatly favor the Landowners in this case, because the State-owned land at issue no longer has any assessed value and would not be counted under subsection (2).

   OPINION

BAKER, Judge.

In this case, a city passed an ordinance annexing additional territory, which a group of landowners vigorously oppose. Indeed, this is the second time that these litigants have been before a panel of this Court. The issue presented to us this time is how to count State-owned parcels of land that now form State-owned right of ways. The trial court concluded that the parcels should be counted individually. We conclude that this was error, inasmuch as it undermines the General Assembly’s intent to provide a mechanism for landowners to oppose annexation.

Appellants-plaintiffs American Cold Storage et al., (collectively, “the Landowners”) appeal the trial court’s ruling dismissing their challenge to an annexation by the appellee-defendant City of Boonville (Boonville) for lack of subject matter jurisdiction. Specifically, the Landowners argue that the trial court erred by individually counting the State-owned parcels that are now State Road 62 rather than counting State Road 62 as a single piece of real estate. According to the Landowners, counting each individual parcel that is now part of a state highway diluted the percentage of signatures necessary to oppose the annexation.

Boonville cross-appeals arguing that the Landowners have waived this issue because it was available to them during the first appeal and they failed to raise it. Declining to find waiver and concluding that the trial court erred by counting each individual parcel that was acquired to build what is now State Road 62, we reverse and remand for further proceedings consistent with this opinion.

FACTS

Boonville is a municipal corporation and political subdivision located in Warrick County. On July 7, 2008, Boonville passed Ordinance 2008-2, which annexed 1,165 acres of real estate located west of Boon-ville’s geographic limits. Public highways border two sections of the proposed annexed territory. The Landowners are 230 individuals, trusts, and corporate entities who oppose the annexation.

On October 3, 2008, the Landowners filed their written remonstrance and verified complaint for declaratory relief. Regarding the remonstrance in Count I, the Landowners objected to Ordinance 2008-2, asserting that the annexation should not occur for numerous reasons, including an inadequate fiscal plan; non-capital services such as police, fire, and street and road maintenance services were already adequately provided for; capital services such as street construction and lighting, sewer and water facilities, and storm drainage facilities were already adequately provided for; the annexation would have a detrimental financial impact on the real estate owners in the affected territory; and the annexation would not be in the best interests of the landowners in the territory proposed to be annexed. For the Landowners to have standing, the remonstrance must be signed by at least 65% of the owners of land in the annexed territory (65% Rule). Ind.Code § 36-4-3-ll(a)(l). In the Landowners’ claim for declaratory relief in Count II, the Landowners incorporated their remonstrance grievances and alleged statutory deficiencies.

On November 26, 2008, Boonville filed a motion to dismiss for lack of subject matter jurisdiction under Indiana Trial Rule 12(B)(1). On March 11, 2010, the trial court entered its order denying Boonville’s motion to dismiss.

On March 17, 2010, Boonville filed its motion to certify for interlocutory appeal the trial court’s order denying Boonville’s motion to dismiss, which the trial court and this Court granted. On June 13, 2011, a panel of this Court issued its decision holding that tax-exempt parcels should be included in determining the total number of parcels in the proposed annexation area. City of Boonville v. Am. Cold Storage, et al., 950 N.E.2d 764, 769 (Ind.Ct.App.2011), reh’g denied (Boonville I). The panel also concluded that the Landowners lacked standing to seek declaratory relief and rejected their argument that parcels abutting public roadways should be counted in determining whether the remonstrance satisfied the 65% Rule. Id. at 771. The panel remanded for further proceedings consistent with its opinion. Id. at 772.

On October 26, 2011, the Landowners filed their brief in support of their position regarding how the State Road 62 parcels should be counted and motion requesting a hearing for a determination of the sufficiency of the remonstrance. Boonville opposed the motion.

On December 19, 2011, the trial court dismissed the complaint. The Landowners filed their notice of appeal on December 21, 2011. Then, on January 17, 2012, the Landowners filed a motion to correct error, which prompted this Court to remand once again. On March 23, 2012, after receiving briefs and hearing argument from both sides, the trial court denied the Landowners’ motion to correct error. This Court resumed jurisdiction on April 3, 2012.

DISCUSSION AND DECISION

The Landowners argue that the trial court erred in dismissing their remonstrance for lack of subject matter jurisdiction. More particularly, the Landowners contend that the trial court should not have included the parcels that were acquired by the State to construct what is now State Road 62.

I. Waiver

As an initial matter, Boonville maintains that the Landowners have waived their argument by failing to raise it in the first appeal. As stated in the FACTS, the main issue in the first appeal was whether tax-exempt parcels should be included in determining the total number of parcels in the proposed annexation area. See Boonville I, 950 N.E.2d at 767-69.

Boonville points out that of the 109 tax-exempt parcels within the annexed territory, by the Landowners’ calculations, eighty-eight of them are State right-of-way properties and that the Landowners understood this at the time of the first appeal. In support of this assertion, Boon-ville directs us to the Landowners’ 2009 brief that they filed with the trial court in which they made the following argument:

The parcels in the name of the State of Indiana are in fact parts of one public right-of-way which is S.R. 62. Under Indiana law these parcels would constitute only one parcel and owner and are not available to be counted as properties of remonstration owners.

Appellee’s App. p. 19. Nevertheless, according to Boonville, the Landowners failed to pursue this related question during the first appeal.

An issue that was known and available but not raised in the first appeal is waived as a basis for relief in subsequent proceedings. Citizens Action Coal. of Ind. Inc. v. N. Ind. Pub. Serv. Co., 582 N.E.2d 387, 391-92 (Ind.Ct.App.1991). In other words, all questions presented by the record from a final judgment must be presented on the first appeal. Id.

Here, the precise question presented to this Court is the total number of parcels in the proposed annexation territory. More precisely, the dispositive legal issue is how to count the parcels that now comprise State Road 62. This question encompasses whether a state highway is multiple parcels or a single parcel for purposes of the remonstrance statute.

By contrast, before the trial court issued its ruling that was the subject of the first appeal to this Court, it requested briefing on four specific legal issues, including the three presented on the first appeal, namely, whether to include tax-exempt parcels in determining whether the 65% Rule had been met, whether the Landowners had standing to bring a declaratory judgment, and whether to include parcels that abut public roadways. Boonville I, 950 N.E.2d at 767. These are different questions from whether a State highway is one parcel or multiple parcels for purposes of the 65% Rule. Lastly, “we prefer to decide a case upon the merits whenever possible.” United Farm Family Mut. Ins. Co. v. Michalski, 814 N.E.2d 1060, 1067 (Ind.Ct.App.2004). Consequently, we decline to find that the Landowners have waived this issue.

II. How to Count the Parcels Comprising State Road 62

A. Standard of Review

The Landowners argue that the parcels acquired by the State for building a state highway should be counted as one parcel for purposes of the 65% Rule contained in Indiana Code section 36^1-3-11 (Remonstrance Statute). This argument presents a legal question, which this Court reviews de novo. Sun Life Assurance Co. of Can. v. Ind. Dep’t of Ins., 868 N.E.2d 50, 55 (Ind.Ct.App.2007).

The issue presented requires us to interpret the Remonstrance Statute. If a statute is unambiguous, we must give the statute its clear and plain meaning; however, if a statute is ambiguous, we must ascertain the legislature’s intent and interpret the statute to effectuate that intent. Robinson v. Gazvoda, 783 N.E.2d 1245, 1249-50 (Ind.Ct.App.2003). A statute is ambiguous if it is susceptible to more than one reasonable interpretation. Id. at 1250.

The Remonstrance Statute provides, in relevant part:

(a) ... whenever territory is annexed by a municipality under this chapter, the annexation may be appealed by filing with the circuit or superior court of a county in which the annexed territory is located a written remonstrance signed by:
(1) at least sixty-five percent (65%) of the owners of land in the annexed territory; or
(2) the owners of more than seventy-five (75%) in assessed valuation of the land in the annexed territory.

B. Precedent Interpreting Remonstrance Statute

Boonville contends that precedent interpreting the Remonstrance Statute has made clear that all property is to be counted in determining whether the 65% Rule has been met. Boonville points out that if the phrase “owners of land” contained in Section (a)(1) of the Remonstrance Statute is broad and general enough to include owners of tax-exempt land, as a panel of this Court concluded in Boonville I, 950 N.E.2d at 769, it is broad and general enough to include owners of right-of-way land.

Panels of this Court and our Supreme Court have previously interpreted the Remonstrance Statute in similar contexts. For instance, in City of Fort Wayne v. Certain Northeast Annexation Area Landowners, 564 N.E.2d 297, 298 (Ind.Ct.App.1990), a panel of this Court concluded that for calculating the number of remon-strators that “multiple owners of a single parcel are to be counted as only one owner. A single owner of multiple parcels, on the other hand, counts as an owner for each parcel.”

Then, in Arnold v. City of Terre Haute, 725 N.E.2d 869, 870 (Ind.2000), our Supreme Court elected “to follow the method outlined in City of Ft. Wayne v. Landowners as representing relatively settled and simpler law.” The Arnold Court reasoned that, like the City of Fort Wayne panel, it thought that Subsection 11(b) of the Remonstrance, Statute, which states in relevant part that “[o]nly one (1) person having an interest in each single property, as evidenced by the tax duplicate, is considered a landowner for purposes of this section,” “suggests an interpretation better described as ‘one-parcel-one-vote’ than as ‘one-owner-one-vote.’ ” Id. at 870.

Finally, in Boonville I, a panel of this Court determined that the landowners had misinterpreted the Remonstrance Statute by arguing that tax-exempt parcels should not be counted for purposes of the 65% Rule. 950 N.E.2d at 768. The panel reasoned that tax-exempt parcels have an assessed value and are listed on a tax duplicate. Id. The panel also explained that the Remonstrance Statute does not limit the phrase “owners of land” under the 65% Rule with the modifier “taxable” before the word “land.” Id. at 769.

C. Application to the Instant Case

At first blush, these cases seem to support Boonville’s position that each parcel which now comprises State Road 62 should be counted individually. However, as the Landowners point out, the state highway parcels do not have a tax-assessed value and have been removed from the tax duplicate. Appellants’ App. p. 160. Accordingly, at least a portion of the reasoning in Boonville I is no longer persuasive.

Additionally, in Boonville I, a panel of this Court concluded that parcels adjacent to public roads but not included in the annexed territory should not be counted in determining whether the 65% Rule had been satisfied. 950 N.E.2d at 772. Specifically, the panel stated that “the State— not the adjacent property owners — controls and owns Highway 62 and Millers-burg Road.” Id. Indeed, it is well established that the State owns state highways and that a state highway is referred to as a single entity rather than as separate parcels. See S. Ind. Gas & Elec. Co. v. Dep’t of Highways, 533 N.E.2d 1289, 1293 (Ind.Ct.App.1989) (stating that “in the absence of a statutory provision to the contrary, ownership of public ways lies in the State”).

Likewise, Indiana Code section 36-4-3-2.5, which defines “public highway” for purposes of municipal annexation under Indiana Code section 9-25-2-4 as “a street, an alley, a road, a highway, or a thoroughfare in Indiana, including a privately owned business parking lot and drive, that is used by the public or open to use by the public.” The language of this statute along with Boonville I indicates that State Highway 62 is a single asset or property rather than multiple parcels of land.

Perhaps most compelling, including each individual parcel that was acquired for a public highway when counting the total number of parcels in a proposed annexation area would include many parcels that would neither support nor oppose annexation. There is no authority which permits the State to take a position one way or the other on any local annexation. Consequently, under these circumstances all public highway parcels would be silent as to the numerator portion of the 65% Rule equation; however, they would be counted in the denominator.

Even assuming solely for argument’s sake that the State may take a position and has an interest in doing so because of various fees it might have to pay or regulations to which it might be subjected, this point does not support giving the State multiple votes based on the arbitrary number of parcels that it had acquired for a state right-of-way when the State is simply another landowner. In any event, under either scenario, if each parcel of a public highway is counted separately, the remonstrance process is distorted.

To be sure, in some cases, including each parcel that the State acquired to build a state right-of-way would make it impossible for remonstrators to garner enough signatures to satisfy the 65% Rule because the state right-of-way could represent more than 35% of the parcels in a proposed annexation area. We think that such a result undermines the intent of the General Assembly to provide a mechanism for remonstrators to challenge a municipality’s annexation plan. See State ex rel. Ind. State Police v. Arnold, 906 N.E.2d 167, 170 (Ind.2009) (stating that the primary goal of statutory construction is to ascertain and effect the intent of the legislature); Gardner v. Prochno, 963 N.E.2d 620, 624 (Ind.Ct.App.2012) (observing that “[w]e presume the legislature intended the language used in the statute to be applied logically, consistent with the statute’s underlying policy and goals, and not in a manner that would bring about an unjust or absurd result”).

Consequently, we conclude that the trial court erred, insofar as it counted the separate parcels that were acquired by the State to build State Road 62 rather than counting State Road 62 as a single parcel under the Remonstrance Statute. Accordingly, we reverse the decision of the trial court and remand for further proceedings consistent with this opinion.

Reversed and remanded.

ROBB, C.J., concurs.

BRADFORD, J., dissents with opinion.

Figure 1: -Parcels A. B, c|, and D are owned by private landowners.

Figure 2: The shaded portion encompassing Parcels E and F represente a state highway, which is the reason that the state acquiredportious ofParcels A, B, C. andD. Nevertheless. Parcels E andF are one state highway.

BRADFORD, Judge,

dissenting.

First, I would accept Boonville’s argument that the question of how the State-owned parcels should be counted has been waived. Second, I would conclude that the parcels owned by the State should be treated no differently than any other parcel for purposes of the 65% rule of the remonstrance statute. Consequently, I respectfully dissent.

I. Waiver

I would not address the Landowners’ argument regarding how the State-owned parcels should be treated because it was not raised before the first appeal. “The law is well-established that an issue is waived if it was available on the first appeal but was not presented.” Citizens Action Coal, of Ind., Inc. v. N. Ind. Pub. Serv. Co., 582 N.E.2d 887, 391 (Ind.Ct.App. 1991). The Landowners point out that the precise question at issue in this appeal was not available in the first appeal in this case because it had not been litigated yet in the trial court. While this is true, in my view it is beside the point. The Landowners do not offer any explanation for their failure to raise this issue before the first appeal, and now its litigation has given rise to another appeal. “A case cannot be strung out indefinitely by bringing one issue after another before a court in piecemeal fashion at the option and with the delays which a [party] may see fit to use.” Callahan v. State, 247 Ind. 350, 356, 214 N.E.2d 648, 652 (1966). “Judicial procedure would have no orderliness, but in fact, it would be chaotic if we were to recognize the contention that a party is not bound to use diligence and act promptly in presenting his side of a law suit.” Id. Although there is no reason to believe that the Landowners are attempting to “string out” this case, I am concerned that allowing this claim to proceed will encourage such behavior in the future.

II. How the State-Owned Parcels Should be Counted

Moreover, if I were to reach the merits of the Landowners’ claim, I would con-elude that all of the State-owned parcels should be counted individually for purposes of the 65% rule. The remonstrance process is purely statutory, and, as such, is governed by the rules of statutory interpretation. “The interpretation of a statute is a question of law reserved for the courts.” Scott v. Irmeger, 859 N.E.2d 1238,1239 (Ind.Ct.App.2007).

A statute should be construed so as to ascertain and give effect to the intention of the legislature as expressed in the statute. In so doing, the objects and purposes of the statute in question must be considered as well as the effect and consequences of such interpretation. When interpreting the words of a single section of a statute, this court must construe them with due regard for all other sections of the act and with regard for the legislative intent to carry out the spirit and purpose of the act. We presume that the legislature intended its language to be applied in a logical manner consistent with the statute’s underlying policy and goals. Rupert v. State, 717 N.E.2d 1209, 1210 (Ind.Ct.App. 1999).
Fuller v. State, 752 N.E.2d 235, 237-38 (Ind.Ct.App.2001).

In my view, the Indiana Supreme Court’s 2000 holding in Arnold, which interpreted the remonstrance statute and adopted a “ ‘one-parcel-one-vote’ ” regime, controls. The Landowners argue that a distinction between “land” and “public highways” can be inferred from the annexation statutes, from which it can further be inferred that the exclusion of the term “public highway” from the remonstrance statute indicates that it should be only counted as one parcel. First, the statutes in question certainly make no clear distinction between “land” and “public highways,” most importantly by failing to define “land” as anything other than all land. Quite simply, “public highway” is a subset of “land” — not a different concept. The most reasonable reading of the remonstrance statute is therefore that all land is to the treated the same for purposes of the 65% rule. “ ‘It is the function of this court to ascertain and implement the legislature’s intent and the legislature’s intent must be primarily determined by giving effect to the ordinary and plain meaning of the language used in the statute.’ ” Henricks v. Fletcher Chrysler Prods., Inc., 570 N.E.2d 115,116 (Ind.Ct.App.1991) (quoting Irmscher v. McCue, 504 N.E.2d 1034, 1036 (Ind.Ct.App.1987)), trans. denied. The General Assembly has had twelve years to alter the Indiana Supreme Court’s “one-parcel-one-vote” interpretation, which I take as strong support for the proposition that it represents legislative intent. “[I]t is well-established that a judicial interpretation of a statute, particularly by the Indiana Supreme Court, accompanied by substantial legislative inaction for a considerable time, may be understood to signify the General Assembly’s acquiescence and agreement with the judicial interpretation.” Fraley v. Minger, 829 N.E.2d 476, 492 (Ind.2005). In any event, if we were to accept the Landowners’ argument that “land” and “public highway” are two different concepts, it would follow that the State-owned land would not be counted at all, not that it would be counted once, as the Landowners assert. Absent explicit language to that effect that “land” and “public highway” are to be counted differently, I would conclude that we remain bound by Arnold.

The Landowners also argue that individually counting the State-owned parcels that make up Highway 62 distorts the remonstrance process in this case and “might make an effective remonstrance literally impossible” in other cases. Appellant’s Reply Br. at 5. While I agree that counting the State-owned parcels individually might make it more difficult, or even impossible,- to reach the 65% threshold, I cannot conclude that the process is “distorted.” After all, the statutory framework itself clearly contemplates that opponents of annexation may be thwarted by other landowners who either desire annexation or simply do not care. Por example, very few, if any, would consider the remonstrance process distorted where the owner of many- rental properties in a tract of land desires annexation and refuses to support remonstrance. The General Assembly has provided a process for challenging annexation, and if we conclude that the process is distorted in this case simply because it does not seem that the Landowners will be able to remonstrate, I have a difficult time seeing how we could avoid reaching-the same conclusion in any case where the challengers are unable to reach the statutory thresholds.

I respectfully dissent.

      . For illustrative purposes only, attached to the end of this opinion are two figures. The first figure illustrates parcels of property owned solely by private landowners. The second figure illustrates the increase in the number of parcels resulting from the State acquiring portions of the landowners' parcels to accommodate a state highway. Additionally, the second figure shows the state highway encompassing the added parcels. Note, however, that the figures are not actual representations of the factual circumstances in this case but are provided to assist the reader in understanding the arguments and our analysis of the issues presented.

      . According to Black’s Law Dictionary, a remonstrance is "[a] presentation of reasons for opposition or grievance.” 1298 (7th ed. 1999).

      . The fourth issue that was briefed but not considered on appeal in Boonville I was whether the signatures of parcel owners who executed City of Boonville Sewer Applications containing a waiver of the right to remonstrate against annexation should be counted in determining whether the 65% Rule had been satisfied. Appellee’s App. p. 19-20.

      . Boonville directs us to the affidavit of Jeffrey A. Volz, the Director of Operations and Data Analysis with the Indiana Department of Local Government Finance. In his affidavit, Director Volz stated that he had access to tax duplicate data and attached a tax duplicate with the State-owned parcels for 2007-2008. We note that the Landowners' 2011 affidavit from the auditor of Warrick County stating that State-owned parcels did not have an assessed value and had not been issued a tax duplicate is more recent. Appellants' App. p. 160.


source: Caselaw Access Project

author: MASSA, Justice.

license: Public Domain

text:
    Stephen W. ROBERTSON, Indiana Commissioner of Insurance, as Administrator of the Indiana Patient’s Compensation Fund and the Indiana Patient’s Compensation Fund, Appellants (Defendants below), v. B.O., a Minor, by his Parents and Next Friends, Lisa A. Ort and Kevin C. Ort, Appellee (Plaintiff below).
    No. 49S04-1111-CT-671.
    Supreme Court of Indiana.
    Oct. 31, 2012.

      Susan E. Cline, Meggan Brumbaugh, Indianapolis, IN, Attorneys for Appellants.
    Robert L. Thompson, F. John Rogers, Fort Wayne, IN, Richard L. Schultheis, Indianapolis, IN, Attorneys for Appellee.
    Steven L. Langer, Tara M. Worthley, Valparaiso, IN, Attorneys for Amicus curiae The Indiana Trial Lawyer’s Association.
    Libby Y. Goodknight, Indianapolis, IN, Attorney for Amicus Curiae The Indiana State Medical Association.
   MASSA, Justice.

In defending against a petition to recover excess damages arising from a medical malpractice action, may the Indiana Patient’s Compensation Fund — after the healthcare provider settles with the plaintiff and admits liability — present evidence to dispute the existence or cause of the plaintiffs injury? In some types of cases, we have previously said yes. In the type of case before us today, however, we say no.

Facts and Procedural History

At age four, B.O. was diagnosed with a mild form of cerebral palsy known as spastic diplegia. Subsequently, his parents filed a complaint under the Indiana Medical Malpractice Act, claiming that the healthcare providers who attended B.O.’s birth were negligent. Specifically, they asserted that the healthcare providers failed to adequately monitor his condition during labor and delivery and then failed to respond when signs of fetal distress appeared. That fetal distress, they maintained, lasted for nearly two hours before his delivery and resulted in the development of his condition.

Shortly before trial, B.O.’s healthcare providers settled for a sum allowing B.O. to seek excess damages from the Indiana Patient’s Compensation Fund (PCF). See Ind.Code § 34-18-15-3 (2008). B.O.’s parents then filed a petition for excess damages, after which the PCF disclosed five expert witnesses prepared to testify that B.O. either did not have cerebral palsy consisting of spastic diplegia or that if he did, it did not result from the conduct of the healthcare providers at his birth. The parents then sought partial summary judgment seeking to limit the issue at trial to

the amount of the compensable damages for the injury alleged by [B.O.] which is mild cerebral palsy consisting of spastic diplegia; and ... the [PCF] may not contend or offer testimony to establish that [B.O.] does not have mild cerebral palsy consisting of spastic diplegia and/or [B.O.’s] condition was not caused by the conduct of [the healthcare providers].

Appellant’s App at 238-34. The trial court granted partial summary judgment for B.O., and the Court of Appeals reversed. Robertson v. B.O. ex rel. Ort, 949 N.E.2d 404, 407, 411 (Ind.Ct.App.2011). We granted transfer and now affirm the trial court.

Standard of Review

In reviewing a grant of summary judgment, the appellate court “faces the same issues that were before the trial court, and analyzes them in the same way.” Carie v. PSI Energy, Inc., 715 N.E.2d 853, 855 (Ind.1999). Where the challenge to the trial court’s summary judgment presents only legal issues, not factual ones, the issues are reviewed de novo. Spangler v. Bechtel, 958 N.E.2d 458, 461 (Ind.2011).

The PCF is Precluded from Disputing the Existence or Cause of B.O.’s Claimed Injury

The Indiana Medical Malpractice Act (MMA) creates a bifurcated procedure for determining medical malpractice claims against a qualified healthcare provider. This process is correlated to the separate damages caps imposed by the MMA.

The [MMA] caps a recovery for a patient’s injury or death at $1,250,000. Ind.Code § 34-18-14-3(a)(3) (2008). The Act limits the liability of a qualified health care provider whose medical negligence proximately caused the injury or death to the first $250,000 of damages. Ind.Code § 34-18-14-3(b). If a judgment or settlement fixes damages in excess of a qualified health care provider’s liability, then a plaintiff may recover excess damages from the PCF. Ind.Code § 34-18-14-3(c).

Ind. Dep’t of Ins. v. Everhart, 960 N.E.2d 129, 133 (Ind.2012). An injured plaintiff thus proceeds first against the healthcare provider, Ind.Code §§ 34-18-8-1 to -8 (2008), and then against the PCF, Ind. Code § 34-18-15-3 (2008). Central to the resolution of this case is the meaning of Indiana Code § 34-18-15-3(5) which states in part:

If the commissioner, the health care provider, the insurer of the health care provider, and the claimant cannot agree on the amount, if any, to be paid out of the patient’s compensation fund, the court shall, after hearing any relevant evidence on the issue of claimant’s damage submitted by any of the parties described in this section, determine the amount of claimant’s damages, if any, in excess of the two hundred fifty thousand dollars ($250,000) already paid by the insurer of the health care provider. The court shall determine the amount for which the fund is liable and make a finding and judgment accordingly. In approving a settlement or determining the amount, if any, to be paid from the patient’s compensation fund, the court shall consider the liability of the health care provider as admitted and established.

Ind.Code § 34-18-15-3(5) (emphasis added). The contentions of the parties hinge on the precise meaning of “liability” and in what manner it is “admitted and established” in the second stage of the bifurcated MMA proceedings.

The PCF believes that the evidence it seeks to introduce is “not only relevant, but necessary” to a determination of damages. Appellant’s Br. at 9. As we understand the argument, the final sentence of Indiana Code Section 84-18-15-3(5), which requires the trial court to “consider the liability of the health care provider as admitted and established,” Ind.Code § 34-18-15-3(5) (emphasis added), is inapplicable for two reasons: (1) recent Indiana case law has interpreted this provision “to allow causation type evidence” because “[ejvidence of the existence of an injury can be relevant to both causation and damages,” Appellant’s Br. at 18, and (2) Section 34-18-15-3(5) does not preclude the PCF “from challenging the compensable nature of B.O.’s injury.” Appellant’s Br. at 12. Under the facts of this case, we disagree on both counts.

A. Foreclosure of Existence and Causation of Injury

1. “Liability” under Ind.Code § 34-18-15-3(5)

The PCF argues that it may introduce evidence of “medical issues of causation relevant to determining damages.” Appellant’s Br. at 15. Specifically, the PCF seeks to introduce evidence at trial to dispute the nature of B.O.’s injury, contending that B.O. either has no injury or that his injury was not caused by the healthcare providers’ breach of duty. This argument raises a question we briefly addressed in Atterholt v. Herbst, 902 N.E.2d 220 (Ind.2009): what is meant when “liability” is “admitted and established” under Indiana Code § 34-18-15-3(5)? In Herbst we said:

The Medical Malpractice Act does not define “liability.” However, the Act provides that undefined legal terms have the meaning consistent with the common law. [Ind.Code] § 34-18-2-2. According to Black’s Law Dictionary (8th ed. 2004), liability is the “quality or state of being legally obligated or accountable.”

Herbst, 902 N.E.2d at 223. We thus begin with a look to the common law definition of liability in a negligence case.

Traditionally, negligence consists of “(1) a duty owed by the tortfeasor to the tort victim, (2) a breach of that duty, and (3) an injury to the tort victim proximately caused by the breach.” Spangler, 958 N.E.2d at 468 (citing Estate of Mintz v. Conn. Gen. Life Ins. Co., 905 N.E.2d 994, 998-99 (Ind.2009)). A plaintiff proving each of these elements establishes that a defendant is “legally obligated or accountable,” Herbst, 902 N.E.2d at 223 (quoting Black’s Law Dictionary (8th ed. 2004)). That is to say, the defendant is liable. All that remains is a determination of the amount of damages to which the plaintiff is entitled. See id.

This definition, then, gives us two criteria relevant to the PCF’s appeal. First, “[i]t is axiomatic that, before liability can be imposed, there must be proof that the defendant’s negligence proximately caused the plaintiffs harm.” Dunn v. Cadiente, 516 N.E.2d 52, 55 (Ind.1987); see also Dillon v. Glover, 597 N.E.2d 971, 973 (Ind.Ct.App.1992) (quoting Dunn and reasoning: “[i]t therefore follows that once liability is established, the issue of proximate cause is decided.”). Likewise, in order to establish liability, a plaintiff must demonstrate an injury; without a connection between the breach of duty and the injury, causation fails. Dunn, 516 N.E.2d at 55. From this it seems clear that, for purposes of determining excess damages, if “the court shall consider the liability of the health care provider as admitted and established” pursuant to Section 34-18-15-3(5), then the supporting requirements that the healthcare providers’ breach of duty caused an injury to B.O. must — by necessity — also be viewed as “admitted and established.”

Here, B.O. has claimed a single injury: cerebral palsy consisting of spastic diple-gia. That is the claim that the healthcare providers chose to settle, and thus that is the claim for which liability is “admitted and established” — including, by implication, the required elements of causation and injury. All that remains to be determined is the amount of damages to which B.O. is entitled from the PCF for the malpractice.

We recognize that this means that the existence and type of injury that B.O. sustained is determined without the full explication that may have been adduced at a trial. But this was the method chosen by the General Assembly when enacting the MMA. In an effort to control the costs associated with medical malpractice claims, the General Assembly placed numerous constraints on plaintiffs such as a statute of limitations, Ind.Code §§ 34-18-7-1 to - 3 (2008), the use of medical review panels, Ind.Code §§ 34-18-10-1 to -26 (2008), caps on recoverable damages, Ind.Code §§ 34-18-14-1 to -5 (2008), and retention of the contributory negligence defense, Ind.Code § 34-51-2-1 (2008). Perhaps in an effort to balance this sweeping reform, the legislature chose to provide plaintiffs with the benefit of final and established liability when the healthcare provider chooses to settle. It is not our place to upset that balance.

2. Application of Atterholt v. Herbst

The PCF also contends that “Herbst establishes that there are instances where the PCF is entitled to introduce relevant evidence to assist the trier of fact in determining the appropriate amount of damages, even if that evidence is also relevant to liability issues foreclosed by the judgment or settlement of the underlying cause.” (Appellant’s Br. at 14.) However, as the PCF admits, “Herbst was considered in the context of an increased risk of harm analysis.” Appellant’s Br. at 13-14 (emphasis added). We find this distinction to be dispositive.

As we said in Everhart, Herbst was a “necessary consequence” of Cahoon v. Cummings, 734 N.E.2d 535 (Ind.2000), wherein we held that a successful claim for increased risk of harm brought pursuant to Mayhue v. Sparkman, 653 N.E.2d 1384 (Ind.1995) entitled a plaintiff only to damages proportional to the increased risk. Everhart, 960 N.E.2d at 133. But as we explain in greater detail below, because this is not an increased risk of harm claim, Herbst is inapplicable.

Mayhue, Cahoon, and Herbst were each wrongful death cases in which the deceased had less than a fifty percent chance of survival even prior to the claimed malpractice. For these types of cases — and only these types of cases — in Mayhue we adopted the Restatement (Second) of Torts § 323 (1965) increased risk of harm approach. Mayhue, 653 N.E.2d at 1388-89. The goal of this approach was to address the inherent challenge of those cases:

Id. at 1387. Moreover, MMA claims are ordinarily evaluated under traditional contributory negligence. See Ind.Code § 34-51-2-1 (exempting MMA claims from the Indiana Comparative Fault Act). This means that the plaintiffs contributory negligence may act as a complete bar to recovery, and also that a defendant found liable is responsible for the full amount of damages resulting from the malpractice regardless of any aggravating preexisting condition. Dunn, 516 N.E.2d at 56 (“A pre-existing condition or susceptibility, if aggravated by a defendant’s conduct, may result in a defendant’s full liability for the resulting injury and loss. However, if the pre-existing condition, standing alone, independently causes injury and loss, a defendant will not be liable for such damages.”).

Mayhue thus established an alternative means of proving causation where traditional means are inadequate and “reflects a special concern for plaintiffs who stood a fifty percent or worse chance of recovering before suffering some form of medical negligence.” Everhart, 960 N.E.2d at 134. What is more, because a Mayhue claim permits recovery otherwise barred by traditional principles of proximate causation, Mayhue, 653 N.E.2d at 1387, the analysis of fault is significantly altered. The plaintiff need only prove that the healthcare provider was a “substantial factor in causing the harm.” Id. at 1388.

Then, in Cahoon, we held that “upon a showing of causation under Mayhue, damages are proportional to the increased risk attributable to the defendant’s negligent act or omission.” Cahoon, 734 N.E.2d at 541 (emphasis added). We also determined that principles of comparative fault were the best vehicle for determining damages in a Mayhue claim. See id. (“Holding the defendant liable for the full value of the wrongful death claim is inconsistent with the statutory requirement that the loss be caused by the defendant who only increased the risk of an already likely result.”).

But both Mayhue and Cahoon were actions against the healthcare providers; it was not until Herbst that we were presented with the question of determining the amount of damages due from the PCF after settlement with the healthcare provider in a cause of action under Mayhue. Herbst, 902 N.E.2d at 221-22. In response, we held that “evidence of Herbst’s underlying risk of death whether or not he was properly treated is relevant to both liability — whether malpractice caused his death — and to damages — the amount for which the [PCF] is responsible.” Id. at 228. It is this holding of Herbst which the PCF argues should be applied in the present case to allow its proposed evidence. We disagree.

Herbst was necessarily limited to May-hue increased risk of harm claims because “Cahoon established only the measure of damages in cases involving a Mayhue claim.” Everhart, 960 N.E.2d at 134; see also id. at 138 (“Our holding in Herbst was a necessary consequence of Cahoon, in which we held that a successful Mayhue claim for causing an increased risk of harm entitled a plaintiff to damages in proportion to that increased risk”). It is thus only in Mayhue increased risk of harm claims that evidence of underlying risk would be “relevant to both liability ... and to damages.” Herbst, 902 N.E.2d at 223.

Unless a claim is brought under May-hue, Herbst is inapplicable. B.O.’s complaint does not allege an increased risk of harm, but rather traditional negligence resulting in personal injury, and therefore Herbst does not apply.

B. Legal Compensability Versus Factual Compensability

The PCF contends that it may dispute “the compensable nature of B.O.’s alleged injury.” Appellant’s Br. at 13. The PCF is correct that it may present evidence regarding the compensability of a claim when that issue is in dispute, but contrary to the PCF’s contentions, compensability is not disputed in this case. Throughout its briefing the PCF conflates the factual question of compensability — whether B.O. suffered an injury — with the legal question of compensability — whether B.O.’s injury is one for which the law recognizes a cause of action. In fact, a careful reading of one of the Court of Appeals cases upon which the PCF relies makes this abundantly clear.

In Robinson, the plaintiff pled multiple theories of recovery, claiming that the healthcare provider was liable under either the Indiana Adult Wrongful Death Statute (AWDS) or the Indiana Survival Act. Robinson, 872 N.E.2d at 636. Robinson and the healthcare provider settled, but the settlement agreement “did not specify whether the damages were awarded pursuant to the AWDS or the Survival Act.” Id. at 637. When Robinson sought excess damages from the PCF, it became necessary to determine under which theory of recovery the healthcare provider was liable because the measure of damages differs significantly between the AWDS and the Survival Act, and “a tortfeasor may be held liable under either the [AWDS] or the [Survival Act], but not both.” Id. at 639-41 (quoting Best Homes, Inc. v. Rainwater, 714 N.E.2d 702, 705 (Ind.Ct.App.1999)) (emphasis in original).

Because the potential recovery under the Survival Act was greater than under the AWDS, the PCF sought to introduce evidence to prove that the healthcare provider’s negligence caused the patient’s death. Id. at 641-42. In response, Robinson contended that the settlement with the healthcare provider foreclosed the issue of causation by operation of the MMA. Id. at 642^43 (citing Ind.Code § 34-18-15-3(5)).

The Court of Appeals noted that “[b]e-cause the MMA establishes the [PCF’s] liability if the healthcare provider settles with the plaintiff, ... it necessarily follows that proximate cause is also established.” Id. at 642. However, “because recovery under the AWDS or the Survival Act hinges on whether the victim dies as a direct result of the tortfeasor’s actions,” the court held that where “the plaintiff asserts alternative claims against a healthcare provider and the resulting settlement does not specify which claim the damages cover, ... the [PCF] is allowed to contest the proper theory of recovery.” Id. at 643 (emphasis added).

The PCF’s reliance on Robinson is misplaced. In Robinson there was no dispute that the underlying liability was established, id. at 643 (“... the [PCF] admits that it is liable ... ”), whereas here the underlying liability is precisely what the PCF seeks to dispute. Further, the only question in Robinson was which theory of recovery to apply in calculating the damages — a question of law. In contrast, here B.O. asserts only a single theory of recovery: negligence resulting in personal injury. The PCF does not contend that a different legal standard should apply, but instead wishes to dispute the existence of the underlying liability — a question of fact. However, as we explained above, the fact of causation is foreclosed by Indiana Code Section 34-18-15-3(5). Thus, while the PCF is correct that it is “not required to pay non-compensable damages,” Appellant’s Br. at 18, its characterization of its own argument as one of compensability is incorrect.

Conclusion

Because Indiana Code § 34-18-15-3(5) precludes the PCF from disputing the existence or cause of B.O.’s claimed injury, the trial court’s grant of partial summary judgment is affirmed.

DICKSON, C.J., RUCKER, and DAVID, JJ., concur.

      . B.O.'s action falls under a previous version of the statute in which the statutory cap on damages was lower. See Ind.Code § 34-18-15-3 (1996). The remainder of this section, however, remains unchanged, see P.L. 233-1999 § 15, 1999 Ind. Acts 1584, 1609, and the increased damages cap does not alter the analysis in this case.

      . The PCF also relies upon two Court of Appeals cases: Ind. Patient's Comp. Fund v. Butcher, 863 N.E.2d 11 (Ind.Ct.App.2007) and Atterholt v. Robinson, 872 N.E.2d 633 (Ind.Ct.App.2007). Robinson is readily distinguishable because, as we explain below in Part 2, the issue before the Court of Appeals was application of the proper cause of action. Robinson, 872 N.E.2d at 639-41. That question is not now before us. In Butcher, after settlement with the healthcare provider and a judgment against the PCF, the Court of Appeals evaluated the evidence supporting the claimed injury. Butcher, 863 N.E.2d at 13-16. Under a prima facie error standard, because the plaintiff failed to respond to the PCF's argument, the court concluded that there was no evidence to support the recovery. Id. at 16, 20. To the extent that Butcher is inconsistent with our holding today, we disapprove.


text:
    STATE of Indiana, Appellant (Plaintiff below), v. Elvis HOLTSCLAW, Appellee (Defendant below).
    No. 49S02-1205-CR-264.
    Supreme Court of Indiana.
    Nov. 5, 2012.

      Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Justin F. Roebel, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellant.
    David M. Seiter, Indianapolis, IN, Attorney for Appellee.
   MASSA, Justice.

This case presents a single question: does Appellate Rule 9, which tolls the thirty-day deadline for filing a notice of appeal when a party files a motion to correct error, apply to the State in a criminal case? We hold that it does.

Facts and Procedural History

On April 11, 2010, Mr. Elvis Holtsclaw was involved in a motor vehicle collision. The officer who responded to the scene, Detective William Crays of the Indianapolis Metropolitan Police Department, noticed that Holtsclaw was displaying several signs of intoxication. Holtsclaw subsequently consented to and failed field sobriety tests. Detective Crays read Indiana’s implied consent statute to Holtsclaw, and Holtsclaw consented to a chemical test. Holtsclaw was transported to the test site, and Detective Crays observed him for twenty minutes before performing the breath test. After Detective Crays noticed that he had mistakenly entered his own name as the subject of the test, he performed a second test on Holtsclaw.

On April 13, the State charged Holt-sclaw with four counts of drunk driving. Holtsclaw filed a motion to suppress the results of the two breath tests on November 3. After holding a hearing and reviewing briefs from both parties, the trial court granted Holtsclaw’s motion on May 23, 2011. On June 21, the State filed a motion to correct error, and the trial court denied that motion on July 25. On August 16, rather than prosecute Holtsclaw without the breath test evidence, the State dismissed the charges against him. Three days later, the State filed a notice of appeal, arguing that the trial court erred when it suppressed the breath test evidence.

In response, Holtsclaw argued that the Court of Appeals lacked jurisdiction to hear the State’s appeal because it was untimely and not authorized by statute. A majority of the court agreed with Holt-sclaw and dismissed the State’s appeal. State v. Holtsclaw, 961 N.E.2d 1026, 1029 (Ind.Ct.App.2012).

We granted transfer, 967 N.E.2d 1035 (Ind.2012) (table), thereby vacating the opinion of the Court of Appeals. Ind. Appellate Rule 58(A).

Standard of Review

As this issue was not (and could not have been) raised in the trial court, and we have vacated the opinion of the Court of Appeals, App. R. 58(A), we address the issue de novo. We apply this same standard of review to any question of interpretation of our Rules. See Johnson Cnty. Rural Elec. Membership Corp. v. S. Cent. Ind. Rural Elec. Membership Corp., 883 N.E.2d 141, 143 (Ind.Ct.App.2008) (reviewing “a purely legal question involving construction of the Indiana Trial Rules” de novo).

The State’s Appeal Is Timely

In support of his argument that the State’s appeal is impermissible, Holtsclaw cites Indiana Code § 35-38^4-2, which states that in criminal cases the state may appeal only certain rulings, including “an order granting a motion to suppress evidence, if the ultimate effect of the order is to preclude further prosecution” or “an order granting a motion to correct errors.” Ind. Code § 35-38-4-2 (2008) (emphasis added). Holtsclaw argued that the State could not appeal under either of these provisions because it failed to appeal within thirty days of the order suppressing the evidence and had no statutory right to appeal the denial of its motion to correct error. In response, the State cited Appellate Rule 9, which provides that the thirty-day deadline to file a notice of appeal is tolled “if any party files a timely motion to correct error.” Ind. Appellate Rule 9(A)(1). The State contended that Appellate Rule 9 took precedence over Indiana Code § 35-38-4-2, and thus its appeal was timely. We agree.

Our “rules of procedure prevail over any statute or statutory construction.” State ex rel. Crawford v. Del. Cir. Ct., 655 N.E.2d 499, 500 (Ind.1995). The General Assembly itself has recognized that we have sole authority over “practice and procedure in all the courts of Indiana,” and that “all laws in conflict with the supreme court’s rules have no further force or effect.” Ind.Code § 34-8-1-3 (2008). Thus, in this conflict between Indiana Code § 35-38-4-2 and our Appellate Rule 9, the former must give way to the latter.

Appellate Rule 9 states that “if any party files a timely motion to correct error, a Notice of Appeal must be filed within thirty (30) days after the court’s ruling on such motion ... or thirty (30) days after the motion is deemed denied ... whichever occurs first.” App. R. 9(A)(1) (emphasis added). The State is undoubtedly a party, and Holtsclaw concedes that the State’s June 21, 2011 motion to correct error was timely. The trial court denied that motion on July 25, 2011. Pursuant to Appellate Rule 9, the State then had until August 24 — thirty days “after the court’s ruling on such motion”. — to file its Notice of Appeal. The State filed its Notice of Appeal on August 19, well in advance of that deadline. Thus, the appeal is timely.

Were we to reach the opposite conclusion, we would subvert the purpose of our own Rules, which are intended “to secure the just, speedy and inexpensive determination of every action.” Ind. Trial Rule 1. If the State knows it may lose its right to appeal by filing a motion to correct error in the trial court, the State will certainly stop filing such motions and bring every appealable issue straight to the Court of Appeals. This outcome would be detrimental to the integrity of our trial courts, which deserve the opportunity to reconsider decisions that may have been made hastily or in the heat of trial. It would be no less detrimental to our already-crowded appellate docket. It would do nothing to further, and much to hinder, “the just, speedy and inexpensive determination” of criminal cases. Thus, we reject it.

Finally, to the extent that Holtsclaw argues that this outcome violates the federal and Indiana constitutions, he has waived his argument by failing to appropriately develop or support it. See Ind. Appellate Rule 46(A)(8)(a) (requiring conclusions to be “supported by cogent reasoning” and “citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on”). Although there was some discussion of the constitutional issue at oral argument, Holtsclaw did not raise it in his brief in the Court of Appeals, and it merited only two conclusory sentences in his response to the State’s transfer petition. Cooper v. State, 854 N.E.2d 831, 834 n. 1 (Ind.2006) (deeming argument presented in “a two-sentence concluding paragraph ... supported neither by cogent argument nor citation to authority” to be waived).

Conclusion

We remand this case to the Court of Appeals for consideration of the merits of the State’s appeal.

DICKSON, C.J., RUCKER and DAVID, JJ., concur.

      . We recognize that the trial judge in this case made a ruling after considering briefs from both parties and holding a hearing on the evidentiary issue, but not all rulings are so well-considered. See, e.g., State v. Hobbs, 933 N.E.2d 1281, 1283 (Ind.2010) (reversing ruling in which trial court suppressed evidence sua sponte without hearing from either party).


author: PER CURIAM. DICKSON, C.J.,

text:
    Michael KUCHOLICK, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 12S02-1211-CR-630.
    Supreme Court of Indiana.
    Nov. 7, 2012.
    Bradley K. Mohler, Frankfort, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   PER CURIAM.

After David Lawler obtained a $2,500 civil judgment against Michael Kucholick’s girlfriend for unpaid rent, Kucholick drove by Lawler’s rural home and fired two shots into the home.

Kucholick was charged with one count of criminal recklessness (a Class C felony), Ind.Code § 35-42-2-2, and one count of criminal mischief (a Class B misdemeanor), id. § 35^3-1-2. A jury found Kucholick guilty as charged, and the trial court sentenced Kucholick to an enhanced term of seven years for criminal recklessness (consisting of four years executed in the Department of Correction and three years suspended to probation) and six months for criminal mischief, to be served concurrently.

Kucholick appealed, arguing in part that the sentence imposed by the trial court was inappropriate in light of the nature of the offense and the character of the offender. See Appellate Rule 7(B). Citing that rule, in a divided opinion the Court of Appeals concluded that Kucholick had met his burden of establishing that his sentence was inappropriate. The majority held that Kucholick’s sentence should be revised to an aggregate sentence of four years, consisting of two years executed in a community corrections program and two years suspended to probation. Kucholick v. State, No. 12A02-1109-CR-907, slip op., 2012 WL 2054870 (Ind.Ct.App. June 8, 2012).

“The principal role of appellate review should be to attempt to leaven the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.2008). Appellate Rule 7(B) preserves for the trial court the central role in sentencing. Serino v. State, 798 N.E.2d 852, 856-57 (Ind.2003).

We agree that a modest sentence revision is warranted in this case. In his separate opinion below, Judge Najam opined that the “nature of Kucholick’s offense closely corresponds to the elements of the crime,” that “Kucholick’s character [is] equivocal,” and therefore that an advisory sentence of four years, all executed, would be appropriate. Kucholick, slip op. at 10. We agree. As applicable here, criminal recklessness entails recklessly, knowingly, or intentionally performing an act that creates a substantial risk of bodily injury to another, by shooting a firearm into an inhabited dwelling. Kucholick’s conduct corresponds to the elements of the offense. As to Kucholick’s character, he was not truthful with law enforcement in this case, and his trial had to be delayed when Kucholick arrived for court with alcohol in his system; on the other hand, he is relatively young, has no prior felony convictions, and has a newborn child to support. In short, the nature of Kuchol-ick’s character is not particularly aggravating or mitigating on balance.

We grant transfer of jurisdiction and direct revision of Kucholick’s aggregate sentence to an advisory term of four years, all executed. The decision of the Court of Appeals is summarily affirmed in all other respects. See Ind. Appellate Rule 58(A).

RUCKER, DAVID and MASSA, JJ., concur.

DICKSON, C.J.,

dissents, believing that, while it is correct to grant transfer, the judgment of the trial court should be affirmed.


author: NAJAM, Judge.

text:
    JPMCC 2006-CIBC14 EADS PARKWAY, LLC, Appellant, v. DBL AXEL, LLC, David Richman, Lynette Gridley, as Trustee of the Hartunian Family TRUST (u/d/t dated November 8, 1989), Black Diamond Realty, LLC, Gary Hartunian, and Tyson Korkmaz, Appellees.
    No. 15A01-1201-PL-23.
    Court of Appeals of Indiana.
    Aug. 15, 2012.
    Rehearing Denied Jan. 2, 2013.

      Dawn R. Rosemond, Lisa D. Updike, Barnes & Thornburg LLP, Fort Wayne, IN, Alan K. Mills, Barnes & Thornburg LLP, Indianapolis, IN, Attorneys for Appellant.
    Stephen J. Peters, Rory O’Bryan, David I.Rubin, Harrison & Moberly, LLP, Indianapolis, IN, Michael J. Alerding, Scott A. Kreider, Alerding Castor Hewitt, LLP, Indianapolis, IN, Attorneys for Appellees.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

JPMCC 2006-CIBC14 Eads Parkway, LLC (“JPMCC”) appeals the trial court’s partial denial of its motion for summary judgment and partial grant of summary judgment in favor of DBL Axel, LLC (“DBL”); David Richman; Lynette Grid-ley, as Trustee of the Hartunian Family Trust; Black Diamond Realty, LLC (“Black Diamond”); Gary Hartunian; and Tyson Korkmaz. JPMCC raises the following three issues for our review:

1. Whether the trial court erred when it denied JPMCC’s motion for summary judgment on DBL’s complaint for declaratory judgment;
2. Whether the trial court erred when it denied JPMCC’s motion for summary judgment and granted DBL’s motion for summary judgment on JPMCC’s various tort claims against DBL; and
3. Whether the trial court erred when it granted summary judgment for Richman and the Hartunian Family Trust on JPMCC’s claim that they breached their guaranty.

We affirm in part, reverse in part, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

DBL is a single-asset company. In 2005, Richman held a ten-percent membership interest in DBL and the Hartunian Family Trust held a ninety-percent membership interest. We have discussed the relationship between DBL and JPMCC as follows:

DBL received a loan which was secured by a Mortgage and Security Agreement (the “Mortgage”) in certain real property in Dearborn County commonly known as Dearborn Plaza in Lawrenceburg, Indiana (the “Property”), which was eventually assigned to [JPMCC]. In March 2008, the City filed a Complaint for the Appropriation of Real Estate to acquire a portion of the Property and two temporary right-of-way easements [“the condemnation action”]. DBL defaulted on the loan in August 2008.
On March 6, 2009, DBL and the City entered into the Settlement Agreement [in a separate civil action brought by DBL against the City] in which the City agreed to pay DBL $1,725,600 in installments of $1,005,600 immediately, $360,000 on or before January 5, 2010, and $360,000 on or before January 5, 2011, as nuisance damages [the “Settlement Agreement” or “the nuisance award”]. On March 9, 2009, DBL and the City filed Agreed Findings and Judgment (the “Agreed Judgment”) on the City’s Complaint for the Appropriation of Real Estate, and the City obtained the portions of the Property and easements it sought and agreed to pay $224,600 to DBL and [JPMCC] [“the condemnation award”]. Also in March 2009, DBL negotiated a check from the City for $1,005,600. On April 30, 2009, DBL filed a complaint [against JPMCC] requesting a declaratory judgment as to how the $224,600 would be applied to its mortgage....

DBL Axel, LLC v. LaSalle Bank Nat’l Ass’n, 946 N.E.2d 1173, 1174 (Ind.Ct.App.2011). As collateral, Richman and the Hartunian Family Trust signed a limited guaranty of the Mortgage and other loan documents (and are hereafter referred to collectively as “the Guarantors”). Rich-man eventually assigned his membership interest in DBL to Korkmaz.

During the course of DBL’s declaratory judgment action, the court appointed a receiver to take possession of and to manage the Property. JPMCC learned of the $1,725,600 nuisance award DBL had received from the City from the receiver.

On June 1, 2009, JPMCC filed its Answer, Counterclaim against DBL, and Third-Party Complaint against the Guarantors, which it amended on September 24, 2010. JPMCC alleged the following ten counts in its amended counterclaim and third-party complaint:

• Count I: breach of contract by DBL based on its failure to pay the amounts due and owing on the loan, including DBL’s failure to pay over to JPMCC the $224,600 condemnation award and the $1,725,600 nuisance award.
• Count II: theft and conversion by DBL when DBL refused to immediately remit to JPMCC the condemnation award and the nuisance award.
• Count III: constructive fraud by DBL when it did not immediately inform JPMCC of the nuisance award.
• Count IV: actual fraud by DBL when it concealed the existence of the nuisance award from JPMCC.
• Count V: fraudulent conveyance by DBL when it disbursed the first two installments of the City’s nuisance payments to its members, attorneys, and a lower priority lien holder on the Property, Black Diamond.
• Count VI: criminal mischief when DBL disbursed the first two installments of the City’s nuisance payments without JPMCC’s consent.
• Count VII: breach of guaranty against the Guarantors.
• Count VIII: a request for replevin of the Property.
• Count IX: a request for foreclosure on the Property.
• Count X: a request for the immediate appointment of a receiver.

Appellees’ App. at 57-74.

On January 31, 2011, the parties filed cross-motions for summary judgment. On May 12, the trial court held a hearing on the parties’ numerous pending motions, including the summary judgment requests. On December 16, the trial court entered the following final judgment: judgment for JPMCC and against DBL on JPMCC’s Counts I, VIII, and IX (the “Breach of Contract Claims”); judgment for DBL and against JPMCC on JPMCC’s Counts II, III, IV, V, VI, and X (the “Tort Claims”); judgment for the Guarantors and against JPMCC on JPMCC’s breach of guaranty claims (the “Breach of Guaranty Claims”); and judgment against JPMCC on JPMCC’s request for summary judgment on DBL’s complaint for declaratory judgment. This appeal ensued.

DISCUSSION AND DECISION

Standard of Review

JPMCC appeals the trial court’s denial of its motion for summary judgment on DBL’s declaratory judgment action, on the Tort Claims JPMCC asserted against DBL, and on the Breach of Guaranty Claims it asserted against the Guarantors. Our standard of review for summary judgment appeals is well established:

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

Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind.2009) (citations omitted). The party appealing from a summary judgment decision has the burden of persuading this court that the grant or denial of summary judgment was erroneous. Knoebel v. Clark County Superior Court No. 1, 901 N.E.2d 529, 531-32 (Ind.Ct.App.2009). Where the facts are undisputed and the issue presented is a pure question of law, we review the matter de novo. Crum v. City of Terre Haute ex rel. Dep’t of Redev., 812 N.E.2d 164,166 (Ind.Ct.App.2004).

Further, much of this appeal is based on the interpretation of written contracts. Our standard of review for interpreting the parties’ written contracts is de novo. Gerstbauer v. Styers, 898 N.E.2d 369, 379 (Ind.Ct.App.2008). The goal of contract interpretation is to ascertain and enforce the parties’ intent as manifested in their contracts. See Gregg v. Cooper, 812 N.E.2d 210, 215 (Ind.Ct.App.2004), trans, denied. To that end, we construe a contract as a whole and consider all of the provisions of the contract, not just individual words, phrases, or paragraphs. See id. An ambiguity exists where a provision is susceptible to more than one interpretation and reasonable persons would differ as to its meaning. Id. However, when a contract is clear and unambiguous, the language must be given its plain meaning. See, e.g., Tippecanoe Valley Sch. Corp. v. Landis, 698 N.E.2d 1218, 1221 (Ind.Ct. App.1998), trans. denied.

Issue One: The Declaratory Judgment Action

JPMCC first challenges the trial court’s denial of its request for summary judgment on DBL’s complaint for declaratory judgment. In its complaint, DBL requested that the trial court interpret the parties’ loan documents to determine the amount of the $224,600 condemnation award that DBL had to remit to JPMCC and how any such amount would be applied to the loan.

This issue is controlled by the following paragraphs of the Mortgage agreement:

Section 1.1. PROPERTY MORTGAGED. Borrower does hereby irrevocably, unconditionally and absolutely mortgage, grant, bargain, sell, pledge, enfeoff, assign, warrant, transfer and convey to Lender (with power of sale), and does hereby grant a first priority security to Lender in, the following property, rights, interests and estates now owned, or hereafter acquired, by Borrower ...:
(f) Condemnation Awards. All awards or payments, including interest thereon, which may heretofore and hereafter be made with respect to the Property, whether from the exercise of the right of eminent domain ..., or for a change of grade, or for any other injury to or decrease in the value of the Property[.]
Section 2.1 DEBT. This Security Instrument and the grants, assignments and transfers made in Article 1 are given for the purpose of securing the following, in such order of priority as Lender may determine in its sole discretion ...:
(a) the payment of the indebtedness
(b) the payment of interest, default interest, late charges and other sums
(c) the payment of all other moneys agreed or provided to be paid by Borrower ...;
(d) the payment of all sums advanced pursuant to this Security Instrument to protect and preserve the Property ...; and
(e) the payment of all sums advanced, costs and expenses incurred, and processing fees charged by Lender in connection with the Debt or any part thereof....
Section 3.4 CONDEMNATION. Borrower shall promptly give Lender notice of the actual or threatened commencement of any condemnation or eminent domain proceeding and shall deliver to Lender copies of any and all papers served in connection with such proceedings. Lender is hereby irrevocably appointed as Borrower’s attorney-in-fact, coupled with an interest, with exclusive power to collect, receive and retain any award or payment for said condemnation or eminent domain and to make any compromise or settlement in connection with such proceeding, subject to the provisions of this Security Instrument. Notwithstanding any taking by any public or quasi-public authority through eminent domain or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Debt at the time and in the manner provided for its payment in the Note and in this Security Instrument and the Debt shall not be reduced until any award or payment therefor shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Debt. Lender shall not be limited to the interest paid on the award by the condemning authority but shall be entitled to receive out of the award interest at the rate or rates provided herein or in the Note. Borrower shall cause the award or payment made in any condemnation or eminent domain proceeding, which is payable to Borrower, to be paid directly to Lender. Lender may apply any award or payment to the reduction or discharge of the Debt whether or not then due and payable (such application to be free from any prepayment consideration provided in the Note, except that if an Event of Default, or any event which with notice and/or the passage of time, or both, would constitute an Event of Default, has occurred, then such application shall be subject to the full prepayment consideration computed in accordance with the Note). If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the award or payment, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the award or payment, or a portion thereof sufficient to pay the Debt.

Appellant’s App. at 308-09, 311-12, 320 (emphases added; original emphasis removed). According to JPMCC, those provisions, and especially Section 3.4, are an unambiguous conveyance of any condemnation award received by DBL to JPMCC.

DBL responds by noting first that Section 3.4 requires JPMCC to act as DBL’s attorney-in-fact in any condemnation proceedings and, second, that any condemnation award that is to be applied to the loan must be net of expenses of collection (namely, DBL’s $580,000 in attorneys’ fees). According to DBL’s first argument, because JPMCC was the attorney-in-fact, JMPCC had an affirmative duty “to defend [DBL in] the Condemnation Proceeding.” DBL’s Br. at 27. And because JPMCC instead “le[ft] DBL to fend for itself,” DBL continues, JPMCC waived its right to a full recovery under Section 3.4. See id.

This argument is not clear. Indeed, it reads as if DBL has confused an attorney-in-fact with an attorney-at-law. An attorney-in-fact is simply “a legal agent,” whereas an attorney-at-law is a lawyer. Black’s Law Dictionary 124 (7th ed. 1999). The “attorney-in-fact” language of Section 3.4 merely makes JPMCC the agent in charge of receiving any condemnation proceeds otherwise payable to DBL and gives JPMCC the authority to approve any condemnation settlement award. That language does not impose a duty on JPMCC to represent DBL in any proceedings involving the Property, and no reasonable person would read Section 3.4 to create such an obligation.

Neither do we agree with DBL’s second argument, that JPMCC is only entitled to receive the condemnation proceeds net of DBL’s expenses. Section 3.4 describes the lender-borrower relationship in the event of a government taking. It does not describe the borrower-government relationship. Pursuant to the lender-borrower relationship, during any condemnation proceedings the borrower must continue to make timely payments on the debt. The lender is entitled to any and all condemnation awards, and the debt may be reduced or discharged upon the lender’s receipt of the award.

However, before the lender applies the condemnation award to the debt, the lender is entitled to first deduct its “expenses of collection.” Appellant’s App. at 320. In the full context of Section 3.4, the “expenses of collection” language unambiguously applies only when the lender incurs expenses of collection against the borrower due to the borrower’s failure to timely remit the condemnation award to the lender. It does not apply to the borrower’s expenses of defending itself in the underlying condemnation proceedings.

Thus, we agree with JPMCC that the plain language of Section 3.4 does not require JPMCC to represent DBL in any legal proceedings nor does that language entitle DBL to any reimbursement for DBL’s expenses in defending the Property. Further, insofar as DBL asserts that the language of Section 3.4 or any other part of the Mortgage entitles DBL to control how JPMCC will distribute the condemnation award, DBL is incorrect. Sections 1.1(f), 2.1, and 3.4 expressly and unambiguously authorize JPMCC to use its own discretion in applying the award to the loan debt. Id. at 308-09, 311-12, 320. We note, however, that DBL would be entitled to an explanation, after the fact, showing how JPMCC applied the award.

Having determined that the plain language of the Mortgage favors JPMCC on each of DBL’s assertions in its declaratory judgment complaint, we next turn to DBL’s alternative argument that, notwithstanding that plain language, the common law requires JPMCC to reimburse DBL for its attorney’s fees from the underlying condemnation proceeding. In support of its alternative argument, DBL cites the Restatement (Third) of Property: Mortgages, § 4.7 (1997) (the “Restatement”). According to that section of the Restatement:

(a) Unless a different disposition is provided in the mortgage, the mortgagee has a right to the following funds paid on account of loss or damage to the mortgaged real estate, to the extent that the mortgagee’s security has been impaired by the loss or damage, as defined in § 4.6(c):
(1) the proceeds paid by a casualty insurer due to the occurrence of an insured loss to the real estate, if the mortgagor promised the mortgagee, in the mortgage or otherwise, to purchase the insurance; and
(2) an award resulting from a taking of all or part of the real estate under power of eminent domain, or the proceeds of a sale to a governmental body in lieu of such taking.
(b) Unless the mortgage effectively provides the contrary, if restoration of the loss or damage described in Subsection (a) is reasonably feasible within the remaining term of the mortgage with the funds received by the mortgagee, together with any additional funds made available by the mortgagor, and if after restoration the real estate’s value will equal or exceed its value at the time the mortgage was made, the mortgagee holds the funds received subject to a duty to apply them, at the mortgagor’s request and upon reasonable conditions, toward restoration. The mortgagee must credit toward the obligation secured by the mortgage any such funds not so applied.

That provision of the Restatement does not apply here. First, DBL is seeking reimbursement of its attorney’s fees, not the costs of restoring the Property. Second, DBL has offered no evidence to demonstrate that applying the condemnation award here to restoring the Property would make the Property’s value “equal or exceed its value at the time the mortgage was made.” Restatement § 4.7(b). Third, the Restatement recognizes that the mortgagee — JPMCC—“holds the funds received subject to a duty to apply them, at the mortgagor’s [DBL’s] request and upon reasonable conditions, toward restoration.” Id. DBL has made no showing that any of those circumstances are met by the facts of this case.

In sum, JPMCC met its burden of showing that it was entitled to summary judgment on DBL’s complaint for declaratory judgment, and DBL has made no showing that a genuine issue of material fact precludes such judgment. Thus, the trial court erred when it denied JPMCC’s motion for summary judgment on DBL’s complaint for declaratory judgment. We reverse the trial court’s judgment and direct the court to enter final judgment for JPMCC on DBL’s complaint.

Issue Two: JPMCC’s Tort Claims

JPMCC next argues that the trial court erred when it denied JPMCC’s motion for summary judgment on the Tort Claims and instead granted summary judgment on those claims to DBL. In support of the trial court’s judgment, DBL contends that the Tort Claims cannot stand because they are based on DBL’s contractual relationship with JPMCC, not on facts independent of that contractual relationship. As such, DBL continues, the Tort Claims were merely repackaged breach-of-contract claims.

In addition to its Breach of Contract Claims, JPMCC alleged that DBL’s failure to timely remit the condemnation and nuisance awards to JPMCC constituted theft, conversion, constructive fraud, actual fraud, fraudulent conveyance, and criminal mischief. Each of these allegations is based on JPMCC’s interpretation of the Mortgage, in which JPMCC is entitled to those monies. The trial court agreed with JPMCC’s interpretation of the Mortgage when it entered summary judgment in favor of JPMCC on the Breach of Contract Claims. DBL does not appeal that judgment.

But a party may not restyle a breach-of-contract claim as a tort claim simply to obtain additional damages. French-Tex Cleaners, Inc. v. Cafaro Co., 893 N.E.2d 1156, 1167 (Ind.Ct.App.2008). Where the source of a party’s duty to another arises from a contract, “tort law should not interfere.” Greg Allen Const. Co. v. Estelle, 798 N.E.2d 171, 175 (Ind.2003). “[T]he question is not whether [the plaintiffs] have, as we assume, adequately pled their tort claims, but, rather, whether [the defendant] is alleged to have done anything that constituted an independent tort if there were no contract.” Koehlinger v. State Lottery Comm’n of Ind., 933 N.E.2d 534, 542 (Ind.Ct.App.2010) (quotation omitted), trams, denied. Further, “the Indiana legislature did not intend to criminalize bona fide contract disputes.” French-Tex Cleaners, 893 N.E.2d at 1168.

Nonetheless, “[t]o the extent that a plaintiffs interests have been invaded beyond mere failure to fulfill contractual obligations, a tort remedy should be available.” Greg Allen Const. Co., 798 N.E.2d at 173. This court has applied this rule in various contexts. For example, to show both a breach of contract and fraud, “a plaintiff ... must prove that the breaching party committed the separate and independent tort of fraud and that such fraud resulted in injury distinct from that resulting from the breach of contract.” Dean V. Kruse Found., Inc. v. Gates, 932 N.E.2d 763, 768 (Ind.Ct.App.2010), trams, denied. And to prevail on a claim of conversion, “the plaintiff must show that the defendant was aware that there was a high probability that its control over the property was unauthorized.” Id. at 769.

Here, to avoid the general rule that its Tort Claims are prohibited, JPMCC first asserts that DBL’s refusal to remit the condemnation and nuisance awards to JPMCC was such a blatant violation of the parties’ contractual relationship that the refusal rose to the level of a tort. Regarding the condemnation award, upon receipt of the award from the City DBL filed its declaratory judgment action and deposited the award with the trial court. And regarding the nuisance award, DBL asserted that it did not believe that the nuisance award was a “condemnation” payment owed to JPMCC pursuant to Section 1.1(f) and Section 3.4. See DBL’s Br. at 13-26. In light of that belief, DBL disbursed the first two installments of the nuisance award to its members, attorneys, and Black Diamond. It is undisputed that DBL disbursed those two installments before April 20, 2010. DBL deposited the third installment with the trial court.

Those facts do not demonstrate a triable issue on DBL’s mens rea for any of the alleged torts. DBL’s surrender of the condemnation award and the third installment of the nuisance award to a neutral third party — the trial court — in the course of its declaratory judgment action and in response to JPMCC’s counterclaim demonstrates only that the right to those funds was in dispute. See, e.g., Coffel v. Perry, 452 N.E.2d 1066, 1069 (Ind.Ct.App.1983); see also French-Tex Cleaners, 893 N.E.2d at 1168 (“the Indiana legislature did not intend to criminalize bona fide contract disputes.”). It does not demonstrate the degree of culpability necessary to establish any of the Tort Claims.

Neither does DBL’s erroneous distribution of the first two installments of the nuisance award to entities other than JPMCC demonstrate that DBL committed a tort. Again, DBL asserted that it disbursed the first two installments of the nuisance award to entities other than JPMCC because it did not believe that the nuisance award was a “condemnation” payment owed to JPMCC pursuant to Section 1.1(f) and Section 3.4. See DBL’s Br. at 13-26. DBL’s belief was, as a matter of law, incorrect.

On April 20, 2010, our supreme court held that inverse condemnation is the “only remedy” for a government’s damage to the plaintiffs property, in the absence of formal proceedings initiated by the government, even though the action may be styled as a nuisance or some other property-related tort. Murray v. City of Lawrenceburg, 925 N.E.2d 728, 732-33 (Ind.2010). And even though Murray was announced by our supreme court five years after DBL and JPMCC entered into the Mortgage, “[i]n general, pronouncements of common law made in rendering judicial opinions of civil cases have retroactive effect unless such pronouncements impair contracts made or vested rights acquired in reliance on an earlier decision.” Sink & Edwards, Inc. v. Huber, Hunt & Nichols, Inc., 458 N.E.2d 291, 295 (Ind.Ct.App.1984). Murray did not overturn any earlier decisions, expressly or impliedly. Moreover, neither DBL nor the Guarantors make any suggestion that applying Murray retroactively, in accordance with the general rule, would impair their contracts or vested rights. Thus, as a matter of Indiana law, DBL’s nuisance action against the City was an inverse condemnation action and, as such, JPMCC was entitled to the proceeds of that action under the plain language of the Mortgage.

But this discussion simply demonstrates that DBL breached its contract with JPMCC when it disbursed the first two installments of the nuisance award to entities other than JPMCC. More is required for JPMCC to demonstrate a triable issue on its Tort Claims. While DBL’s interpretation of the contract was incorrect as a matter of law, that interpretation at least had an arguable basis before Murray. And it is undisputed that the erroneous distributions each occurred before our supreme court’s decision in Murray. Accordingly, JPMCC cannot demonstrate that DBL had the requisite mens rea to support any of the Tort Claims.

The essence of JPMCC’s dispute on the Tort Claims is that DBL breached its contract. “Indiana does not recognize a claim for tortious breach of contract.” Comfax Corp. v. N. Am. Van Lines, Inc., 587 N.E.2d 118, 124 (Ind.Ct.App.1992). “It is axiomatic that tort obligations arise, not from an agreement between the parties, but by operation of law.” Erie Ins. Co. v. Hickman, 622 N.E.2d 515, 518 (Ind.1993). Indeed, there is no dispute that the Mortgage was the source of DBL’s duties to inform JPMCC of its awards and to turn those awards over to JPMCC. As such, “tort law should not interfere” in the resolution of DBL’s breach of its contractual duties. See Greg Allen Constr. Co., 798 N.E.2d at 175. JPMCC’s remedy against DBL is for breach of contract, not for an independent tort.

Nonetheless, JPMCC also contends that the Tort Claims are justified because, “Notwithstanding the Loan Documents, DBL owed an independent duty to disclose the existence of the [nuisance award] as a result of the Receivership Order.” Appellant’s Br. at 38. This argument does not justify the Tort Claims. The trial court ordered a receiver for the Property because of JPMCC’s contractual rights. Absent the parties’ contractual relationship, DBL had no other duties to JPMCC.

Finally, the penalties that distinguish the Tort Claims from the Breach of Contract Claims were not assignable. As our supreme court has held:

[A] contract-based chose in action is considered assignable unless it is purely personal in nature, and one based in tort is assignable if it arises out of injuries to personal property.
But it remains well-settled in Indiana law that a cause of action in tort to recover for personal injuries is not assignable.

Midtown Chiropractic v. Ill. Farmers Ins. Co., 847 N.E.2d 942, 945 (Ind.2006) (citation omitted). Likewise, “[t]he general rule is that the right to collect a penalty is a personal right that is not assignable.” Hart Conversions, Inc. v. Pyramid Seating Co., 658 N.E.2d 129, 131 (Ind.Ct.App.1995). And Indiana Code Section 34-24-3-1, which describes relief available on a tort claim (including treble damages, costs, and fees), “is a punitive statute intended to deter the wrongdoer and others from engaging in similar future conduct. The right is personal in nature and cannot be assigned.” Id. (citation omitted). Thus, even if JPMCC could maintain any of its Tort Claims, a judgment in JPMCC’s favor on those claims would be limited to its actual loss, not a multiple, which is the same as the judgment it received against DBL on its Breach of Contract Claims.

In sum, JPMCC’s designated evidence fails to establish a genuine question of material fact on whether the Tort Claims were independent of the Breach of Contract Claims. They were not. But, even if they were, JPMCC would have no greater remedy against DBL than that which it has already received. Accordingly, the trial court did not err when it granted summary judgment to DBL and against JMPCC on the Tort Claims.

Issue Three: Breach of Guaranty

Finally, JPMCC appeals the trial court’s grant of summary judgment in favor of the Guarantors. A guarantor is “a person who is liable for the payment of a debt or performance of a duty to another person.” Irish v. Woods, 864 N.E.2d 1117, 1121 (Ind.Ct.App.2007) (quotation omitted). As such, a guarantor’s liability “is only relevant in the event of a default by the accommodated party.” Id. As discussed above, the trial court granted summary judgment in favor of JPMCC on its Breach of Contract Claims against DBL, the accommodated party. Nonetheless, the trial court also granted summary judgment in favor of the Guarantors on JPMCC’s Breach of Guaranty Claims.

To resolve this issue, we consider the following language of the guaranty:

Section 1.1 GUARANTY OF OBLIGATIONS. Guarantor hereby absolutely, irrevocably and unconditionally guarantees to Lender (and its successors and assigns), jointly and severally, the payment and performance of the Guaranteed Obligations as and when the same shall be due and payable.... Guarantor hereby absolutely, irrevocably and unconditionally covenants and agrees that it is liable, jointly and severally, for the Guaranteed Obligations as a primary ob-ligor, and that each Guarantor shall perform, jointly and severally, each and every term and provision hereof.
Section 1.2 DEFINITION OF GUARANTEED OBLIGATIONS. As used herein, the term “Guaranteed Obligations” shall ... be deemed to include, and Guarantor shall also be liable for, and shall indemnify, defend and hold Lender harmless from and against, any and all Losses ... incurred or suffered by Lender and arising out of or in connection with the matters listed below:
(b) The misapplication or misappropriation of insurance proceeds or condemnation awards[.]
In addition, in the event (i) of fraud, willful misconduct or material misrepresentation by Borrower ..., [or] (ii) of a breach or default under Sections 4.3 or 8.2 of the [Mortgage] ... the Guaranteed Obligations shall also include the unpaid balance of the Debt (as defined in the [Mortgage]) [“the full recourse provision”].

Appellant’s App. at 460-61.

The undisputed facts show that DBL breached its contract with JPMCC when DBL did not immediately surrender to JPMCC either the condemnation award or the nuisance award. However, as discussed in Issue Two, supra, DBL’s surrender of the condemnation award and the third installment of the nuisance award to a neutral third party in the course of these legal proceedings was not a misapplication of those awards. See, e.g., Coffel, 452 N.E.2d at 1069. As such, JPMCC cannot show a genuine issue of material fact as to whether the Guarantors are liable for JPMCC’s losses arising out of or in connection with those amounts.

DBL’s use of the first two installments of the nuisance award, however, is another matter. Rather than surrendering the first two installments of that award to JPMCC or a neutral third party in the course of a bona fide contract dispute, DBL disbursed those installment payments to its members and other creditors without JPMCC’s knowledge or authorization. As discussed in Issue Two, that action was a breach of its contract with JPMCC, although it did not rise to the level of a tort. Thus, DBL misapplied the first two installments of .the nuisance award, which, again, is a condemnation award as a matter of law. Pursuant to the plain terms of the guaranty, the Guarantors are liable to JPMCC for its losses arising out of DBL’s misapplication of those amounts. See Appellant’s App. at 460-61.

Finally, JPMCC contends that DBL’s misapplication of part of the nuisance award triggered the full recourse obligation of the Guarantors. We need not discuss the parties’ several arguments on this issue in detail. Rather, we simply note that the balance of the debt is not a Guaranteed Obligation unless certain conditions precedent are satisfied. Namely, under subpart (i) of the full recourse provision, JPMCC asserts that the misapplication of the nuisance award was a “material misrepresentation.” Id. at 461. And, under subpart (ii) (which is based on Section 4.3 of the Mortgage), JPMCC asserts that DBL’s partial disbursement of the nuisance award “commingle[d] its assets with the assets of any of its partner(s), members ... or any other person or entity or transferred] any assets to any such person or entity other than distributions on account of equity interest in the Borrower. ...” See id. at 325, 461.

Taking JPMCC’s arguments on their face would render Section 1.2(b) of the guaranty meaningless. That is, JPMCC’s arguments, in effect, are that the violation of Section 1.2(b) establishes a condition that makes the Guarantors liable for the balance of the debt, rather than just JPMCC’s losses arising from or in connection with the Section 1.2(b) violation. But that is not what the full recourse provision says. Rather, that provision states that, “[i]n addition” to Section 1.2(b), the Guarantors might further be liable for the balance of the debt if other “event[s]” occur. See id. at 461.

It is our task to interpret a contract “so as not to render any words, phrases, or terms ineffective or meaningless.” Bailey v. Mann, 895 N.E.2d 1215, 1217 (Ind.2008). Accordingly, we conclude that a violation of Section 1.2(b), without more, does not satisfy the conditions precedent required to trigger the full recourse obligation and make the Guarantors liable for the balance of the debt. Rather, pursuant to the plain language of the guaranty, JPMCC must show factors “[i]n addition” to a Section 1.2(b) violation. See Appellant’s App. at 461. JPMCC has not done so. Thus, the Guarantors are not liable under the guaranty for the balance of the debt.

Conclusion

In sum, we hold that the trial court erred when it denied JPMCC’s motion for summary judgment on DBL’s complaint for declaratory judgment. We also hold that the trial court erred in part when it denied JPMCC’s motion for summary judgment against the Guarantors on its claim for breach of the guaranty with respect to the first two installments of the nuisance award. However, we affirm the trial court’s grant of summary judgment for the Guarantors on the question of their liability for the balance of the debt. We also affirm the trial court’s grant of summary judgment for DBL on JPMCC’s Tort Claims. Thus, we affirm in part, reverse in part, and remand for further proceedings on the amount of the Guarantors’ liability to JPMCC.

Affirmed in part, reversed in part, and remanded for further proceedings.

RILEY, J., and BROWN, J., concur.

      . Black Diamond, Gary Hartunian, and Tyson Korkmaz have not filed briefs in this appeal. Nonetheless, because they were parties in the trial court they are parties in this court. Ind. Appellate Rule 17(A).

      . Although JPMCC was not the original lender and was not a party at the time of the trial court proceedings, it is the current holder of the note and all related interests. For ease of discussion, rather than referring to each holder of the note at the time of a particular event, we simply refer to JPMCC.

      . The Guarantors and DBL have filed separate briefs. But each brief incorporates different parts of the other brief. As a result, juggling the two briefs to read them together has the feel of watching a ping-pong match.

      .The City’s third installment of the nuisance award was remitted by DBL to the trial court during the course of the proceedings, and it remains there.

      . It is unclear why the amended complaint appears in the Appellees’ Joint Appendix rather than the Appellant's Appendix.

      . Neither DBL nor the Guarantors appeal any part of the trial court's summary judgment order. Indeed, to the extent that their arguments call into question the trial court’s judgment against them, those arguments are not raised in the briefs as cross-appeal issues. See Ind. Appellate Rule 9(D). Accordingly, we conclude that DBL’s and the Guarantor’s arguments are wholly in response to JPMCC’s appellate arguments and are not intended to challenge the trial court’s judgment.

      . JPMCC also references the default provisions of the Mortgage as support for its position. But in light of the language quoted above, we need not consider the default provisions. We also do not address JPMCC’s argument that a supposedly unambiguous contract can never be challenged via declaratory judgment (and we need not address DBL’s response that JPMCC’s argument deprives DBL of its right to have a court declare whether a contract is unambiguous). Neither do we address JPMCC’s suggestion that DBL somehow acquiesced in or waived its response to JPMCC's interpretation of the Mortgage simply because DBL acknowledges the underlying validity of that document. Finally, insofar as JPMCC suggests that DBL somehow did not preserve the arguments we address on appeal, that suggestion is unfounded.

      . We are likewise not persuaded by DBL’s additional argument that it is entitled "to offset, against interest accrued or paid at the Note rate, any part of the Condemnation Payment that constitutes interest paid by the condemning authority from the date of taking through the date of actual payment.’’ DBL's Br. at 28.

      . DBL’s brief ignores the language of Section 4.7 and instead quotes from the comments to that section. We are not persuaded that the commentary is materially more helpful than the plain language of Section 4.7, and we restrict our analysis accordingly.

      . JPMCC notes that DBL first deposited the condemnation award in its own account, and then in its attorney’s account, before depositing it with the trial court. But the City mistakenly wrote the check to only DBL and not to both DBL and JPMCC. Thus, we are not persuaded that the fact that DBL held the proceeds for a brief time before surrendering them to the trial court is meaningful.

      . We acknowledge that the judgment against the Guarantors could be affected by an entry in JPMCC's favor on the Tort Claims. We emphasize that our holding on this issue is that the Tort Claims are not viable against any party.

      . For the reasons discussed in Issue Two, we do not consider JPMCC’s further arguments that DBL acted unlawfully or otherwise misappropriated the condemnation award when it first deposited the condemnation award in its own account before it turned the award over to the court.

      .While we need not address all of the parties’ arguments, we do briefly note the Guarantors’ reliance on Fath v. CSFB 1999-C1 Rockhaven Place Limited Partnership, 303 S.W.3d 1 (Tex.Ct.App.2009). According to the Guarantors, in that case the Court of Appeals of Texas held that guaranty language "in connection with the loan” means "at the time of the [accommodated parties'] purchase of the property.” Guarantor's Br. at 27-28. The Guarantors wholly misread the Fath decision. At no point in that opinion is the language of the guaranty quoted rather than merely summarized by the court, which makes it impossible to say what the contract language actually was. And, in any event, the court's holding is not limited to the time the accommodated parties purchased the underlying property. Rather, in considering whether the accommodated parties defrauded the lender, the court discusses the accommodated parties' intent at the time they purchased the property as well as "[following the purchase of the property.” Fath, 303 S.W.3d at 6. Thus, this argument is without merit.

      . For the reasons stated in Issue Two, JPMCC has not shown a genuine issue of material fact that DBL’s actions were fraudulent or willful misconduct.

      . We do not consider any of the other language from the Mortgage relevant to our resolution of this issue.