text:
    INDIANA GAS CO., Southern Indiana Gas & Electric Co. (Both d/b/a Vectren Energy Delivery of Indiana, Inc.), Indiana Industrial Group, Citizens Action Coalition, Inc., Spencer County Citizens for Quality of Life, Valley Watch, Inc., Ohio Valley Gas Corp., Ohio Valley Gas, Inc., Sycamore Gas Co., Appellants, v. INDIANA FINANCE AUTHORITY, Indiana Gasification LLC, Indiana Office of Utility Consumer Counselor, Northern Indiana Public Service Co., Appellees and Lincolnland Economic Development Corp., Intervenor-Appellee.
    No. 93S02-1306-EX-407.
    Supreme Court of Indiana.
    Aug. 14, 2013.
   ORDER

This appeal concerns a contract made between the Indiana Finance Authority and Indiana Gasification LLC for the sale of substitute natural gas. The Indiana Utility Regulatory Commission approved the contract pursuant to a 2009 statute, but several parties challenged that approval. Ultimately, parties on both sides of the controversy sought transfer, and we granted their petitions and assumed jurisdiction over the appeal. Ind. Gas Co., Inc. v. Ind. Fin. Auth., 988 N.E.2d 797 (Ind.2013) (table); Ind. Appellate Rule 58(A).

Before me now is a motion, filed by some of the Appellants in this matter, requesting that I disqualify myself from participation in its resolution. The moving parties make two arguments in support of their request. First, they claim my personal friendship with Mark Lubbers, the Indiana Project Manager for the investment group seeking to build the coal gasi-fication plant at the heart of this regulatory and legal controversy, easts doubt on my impartiality. Second, they assert I was “exposed” to “extrajudicial information” regarding the statute at issue in this case during my tenure as General Counsel for Governor Mitch Daniels. Motion at 10. I address each of these arguments in turn.

The test for recusal under Canon 3(C)(1) is “whether an objective person, knowledgeable of all the circumstances, would have a reasonable basis for doubting the judge’s impartiality.” Tyson v. State, 622 N.E.2d 457, 459 (Ind.1993) (citing Perkins v. Spivey, 911 F.2d 22 (8th Cir.1990), cert. denied, 499 U.S. 920, 111 S.Ct. 1309, 113 L.Ed.2d 243 (1991)). But as my colleague Justice Rucker noted in In Re Wilkins, this test cannot be based solely on that hypothetical reasonable person’s assessment of the facts as reported or the allegations made in the public domain, without a fuller examination. 780 N.E.2d 842, 845 (Ind.2003) (framing the inquiry as “whether a reasonable person aware of all the circumstances would question the judge’s impartiality.” (quoting In re Morton, 770 N.E.2d 827, 831 (Ind.2002))). He also quoted with approval the Second Circuit Court of Appeals: “The test, as we have stated, is one of reasonableness, and the appearance of partiality portrayed in the media may be, at times, unreasonable.” Id. at 846 n. 3 (quoting In Re Aguinda, 241 F.3d 194, 202 (2d Cir.2001)). Or as Justice Scalia put it, “the decision whether a judge’s impartiality can ‘reasonably be questioned’ is to be made in light of the facts as they existed, and not as they were surmised or reported.” Cheney v. U.S. Dist. Court for Dist. of Columbia, 541 U.S. 913, 914, 124 S.Ct. 1391, 158 L.Ed.2d 225 (2004) (citing Microsoft Corp. v. United States, 530 U.S. 1301, 1302, 121 S.Ct. 25, 147 L.Ed.2d 1048 (2000)). When those facts have satisfied this reasonableness test, I have not hesitated to recuse sua sponte.

Personal Friendship

The movants’ first argument in favor of recusal is predicated on my personal friendship with Mark Lubbers. The hypothetical objective person described in Canon 3(C)(1) must be aware of all the circumstances; thus, I take a moment now to lay them out.

I have known Mr. Lubbers for 28 years. He was my immediate supervisor when Governor Robert Orr hired me as a speechwriter in 1985, and I reported to him until he left the Governor’s Office in 1987. We have remained friends through the years, though we have never regularly socialized or maintained frequent or regular contact. For the record, I have seen him twice since being sworn as a Justice of this Court, most recently for only a few minutes at an informal reunion picnic of Governor Orr’s former staffers on May 24 of this year. We did not discuss the case before this Court at that time, nor have we ever discussed it.

As to Mr. Lubbers’s connection to this ease, he is not a party, and neither his liberty nor his assets are at stake. He is, according to the movants, “the Indiana Project Manager and senior Indiana employee” of Indiana Gasification. Motion at 1. He has testified on the project’s behalf before legislative committees and commented on recent legislation pertaining to it. Associated Press, Ind. coal-gas bill stalls C02 pipeline project, WISHTV.com, May 3, 2013, www.wishtv.com/dpp/news/ politics/ind^coal-gas-bill^stalls-c02-pipeline-project.

I found Justice Scalia’s denial of a motion to recuse in Cheney particularly instructive here. It was alleged he could not decide that case impartially because he and Vice President Cheney — an actual party to the case — were friends and had gone on a hunting trip together with several other people. Justice Scalia made clear he never discussed the case with the Vice President and noted that “a rule that required Members of this Court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling.” Cheney, 541 U.S. at 916, 124 S.Ct. 1391.

It would be equally disabling to this Court if we were required to recuse every time a “friend” came before us as a lawyer for a party or worked as an employee of, or consultant to, a party. I have a friend who works for General Motors; must I recuse if GM is a party to a case before our Court? All of us on this Court have many friends who are lawyers, some of whom appear before us, including several to whom I am closer and see more regularly than Mr. Lubbers. If mere friendship with these lawyers were enough to trigger disqualification, my colleagues and I would rarely sit as an intact court of five.

Much has been made of the fact that Mr. Lubbers spoke at my investiture ceremony on May 7, 2012, along with then-Governor Mitch Daniels and former Marion County Prosecutor Scott Newman. He said some flattering things, which can happen on such occasions. But this gesture cannot be a basis for recusal on a court of last resort.

Finally, the movants claim that Mr. Lubbers hired me to work for Governor Orr in 1985 and imply he did the same when I joined the Daniels Administration in 2006. Conceding the first point for the sake of argument (although Governor Orr made the final hiring decision) and rejecting the second as false (again, Governor Daniels made the decision), neither is a basis for recusal. In recent years, our Court has been blessed with the services of Justices Boehm and Sullivan, who before taking the bench were hired at two of the state’s leading law firms whose lawyers often appeared before our Court. Both Justices routinely heard appeals argued by lawyers from those firms without any suggestion of recusal. Nor is it unusual for us to hear cases argued by lawyers we hired as law clerks before they entered appellate practice.

Extrajudicial Information

The movants also allege that I cannot hear this case because I once worked for Governor Daniels, a supporter of the project. But as Justice Boehm explained in Peterson v. Borst, 784 N.E.2d 934, 936 (Ind.2003), “all Justices on this Court were appointed by the Governor. In every case the appointing Governor has selected someone with at least some history of support for the Governor’s political party.” If this fact of life mandated recusal per se, I would have had to recuse from our decision in Meredith v. Pence, 984 N.E.2d 1213 (Ind.2013), the school voucher case, simply because the law upheld in that case was a Daniels initiative. I served as General Counsel to Governor Daniels from 2006 to 2010, but I had no conflict in the voucher case because I played no role in the development or passage of the legislation (indeed, I was serving not as General Counsel but as Alcohol Commissioner when the bill passed in 2011). Likewise, I had no involvement in the negotiation of the contract between the Indiana Finance Authority and Indiana Gasification. I was not the Governor’s counsel when the deal was struck in 2011 and thus had no involvement in it of any kind.

During my four-year tenure as General Counsel, I did oversee a team of lawyers who reviewed enacted legislation for constitutionality before the bills were presented to the Governor for signature. (Other policy aides provided more substantive review and advice.) Therefore, I would have reviewed the enabling legislation for that purpose, but I have no independent recollection of having done so, as Governor Daniels signed 757 separate pieces of legislation during my tenure. Moreover, the constitutionality or wisdom of that enabling legislation, which merely authorized the IFA to solicit bids and enter into a contract with any qualifying coal gasification enterprise is not at issue in the case before the Court. The question is whether the contract, negotiated long after my departure from the Governor’s office, comports with Indiana law. I had no involvement in the negotiation of that contract and thus have no conflict.

# # ⅜

When we take the bench, we assume a duty under the Canons to hear and decide cases and not to recuse “except when disqualification is required.” Ind. Judicial Conduct Rule 2.7 (2009). Justice Boehm has said this is “a particularly powerful consideration for Justices of Supreme Courts, where there is no procedure to replace a recused Justice, and a recusal is in practical terms a vote for the party who prevailed in the last court.” Peterson, 784 N.E.2d at 935. The late Chief Justice Rehnquist made this point in more detail in Laird v. Tatum, 409 U.S. 824, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972), when he wrote:

While it can seldom be predicted with confidence at the time that a Justice addresses himself to the issue of disqualification whether or not the Court in a particular case will be closely divided, the disqualification of one Justice of this Court raises the possibility of an affirmance of the judgment below by an equally divided Court. The consequence attending such a result is, of course, that the principle of law presented by the case is left unsettled. The undesirability of such a disposition is obviously not a reason for refusing to disqualify oneself where in fact one deems himself disqualified, but I believe it is a reason for not, “bending over backwards” in order to deem one’s self disqualified.

Id. at 837-8, 93 S.Ct. 7 (emphasis added). Here, the moving parties can do the appellate math and know that in the event of my recusal, they would only have to convince two judges to prevail, leaving the Court split and winning the tie. Thus, “even one unnecessary recusal impairs the functioning of the Court,” Cheney, 541 U.S. at 916, 124 S.Ct. 1391 (quoting Press Release, U.S. Supreme Court, Statement of Recusal Policy (Nov. 1, 1993)), something I will not do in the absence of sufficient cause in a question of large public import. I therefore will participate when this case is heard.

The Citizens Groups’ Verified Motion for Judicial Disqualification is hereby DENIED. The clerk is directed to send copies of this order to all counsel of record.

      . See Richmond State Hosp. v. Brattain, 961 N.E.2d 1010 (Ind.2012) (per curiam), reh’g denied, No. 49S02-1106-CV-327 (Ind. May 15, 2012) (Sullivan and Massa, JJ., not participating); Davis v. Simon, 987 N.E.2d 1093, 1094 (Ind.2013) (published order); see also Rising Prop. Mgmt., LLP v. Dep’t of Metro. Dev. Bd. of Zoning Appeals, 967 N.E.2d 1034 (Ind.2012) (table); Midwest Psychological Ctr., Inc. v. Ind. Dep’t of Admin., 968 N.E.2d 232 (Ind.2012) (table); State of Ind. Military Dep’t v. Cont’l Elec. Co., Inc., 978 N.E.2d 27 (Ind.2012) (table); State v. Bisard, 980 N.E.2d 323 (Ind.2012) (table) (all denying transfer).

      . Justice Scalia opined that "friendship is a ground for recusal of a Justice where the personal fortune or the personal freedom of the friend is at issue,” Cheney, 541 U.S. at 916, 124 S.Ct. 1391, but that is not the case here; as previously noted, neither Mr. Lubbers’s freedom nor his fortune are at stake in this lawsuit.

      . For instance, Lafayette attorney Patricia Truitt and Martinsville attorney and State Representative Ralph Foley both spoke at the investiture of Chief Justice Dickson in August 2012. Likewise, Allen County Judge Charles Pratt presented and paid tribute to my colleague Justice Rush at her investiture in December 2012. No one would suggest that the Chief Justice recuse himself from a case in which Ms. Truitt or Mr. Foley represented one of the parties, or that Justice Rush recuse herself from an appeal of one of Judge Pratt’s rulings.

      . See generally 2006 Ind. Acts, 2007 Ind. Acts, 2008 Ind. Acts, 2009 Ind. Acts.

      . See Ind. Appellate Rule 58(C) ("When the Supreme Court is evenly divided after transfer has been granted, the decision of the Court of Appeals shall be reinstated.”). The opinion below, of course, reversed the IURC’s approval of the contract, as the movants and the other Appellants requested. Indiana Gas Co., Inc. v. Indiana Fin. Auth., 977 N.E.2d 981, 986 (Ind.Ct.App.2012) transfer granted, opinion vacated, 988 N.E.2d 797 (Ind.2013); see also The Harvard Crimson, Nov. 25, 1968 (Headline: "Harvard Beats Yale, 29-29”); Jin, Liyun and Dennis J. Zheng, The Game Won Without Winning, The Harvard Crimson, November 21, 2008, available at http://www. thecrimson.com/article/2008/11/21/the-game-won-without-winning-theodore/.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of William R. WALLACE, III, Respondent.
    No. 26S00-1301-DI-77.
    Supreme Court of Indiana.
    Aug. 14, 2013.
   PUBLISHED ORDER ACCEPTING RESIGNATION AND CONCLUDING PROCEEDING

A “Verified Complaint for Disciplinary Action” against Respondent was filed on January 29, 2013. Respondent has now tendered to this Court an affidavit of resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17), which requires an acknowledgement that the material facts alleged are true and that Respondent could not successfully defend himself if prosecuted.

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately. The Clerk of this Court is directed to record Respondent’s resignation on the Roll of Attorneys. Respondent shall fulfill all the applicable duties under Admission and Discipline Rule 23(26)(d).

IT IS FURTHER ORDERED that any attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent’s resignation.

Respondent shall be ineligible to petition for reinstatement to the practice of law for five years from the date of this order. See Admis. Disc. R. 23(4)(a). The egregious misconduct charged in the verified complaint would have resulted in permanent disbarment had Respondent not chosen voluntary resignation from the bar. If Respondent seeks reinstatement, the misconduct admitted in Respondent’s affidavit of resignation, as well as any other allegations of misconduct, will be addressed in the reinstatement process. Approval of a petition for reinstatement is discretionary and may be granted only if Respondent could meet the most stringent burden of proving by clear and convincing evidence all the requirements of Admission and Discipline Rule 23(4)(b), including without limitation that he can safely be recommended to the legal profession, the courts and the public as a person fit to represent them and otherwise act in matters of trust and confidence; and that he is genuinely remorseful for his misconduct. Acceptance of Respondent’s resignation from the bar serves only to remove him from the practice of law and does not relieve him from any liability he might have for his misconduct under civil or criminal law.

The costs of this proceeding are assessed against Respondent. With the acceptance of this resignation, the hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Shane E. BEAL, Respondent.
    No. 27S00-1306-DI-424.
    Supreme Court of Indiana.
    Aug. 14, 2013.
   PUBLISHED ORDER ACCEPTING RESIGNATION AND CONCLUDING PROCEEDING

A “Verified Complaint for Disciplinary Action” against Respondent was filed on June 14, 2013. Respondent has now tendered to this Court an affidavit of resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17), which requires an acknowledgement that the material facts alleged are true and that Respondent could not successfully defend himself if prosecuted.

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately. The Clerk of this Court is directed to record Respondent’s resignation on the Roll of Attorneys. Respondent shall fulfill all the applicable duties under Admission and Discipline Rule 2S(26)(d).

IT IS FURTHER ORDERED that any attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent’s resignation.

Respondent shall be ineligible to petition for reinstatement to the practice of law for five years from the date of this order. See Admis. Disc. R. 2S(4)(a). The egregious misconduct charged in the verified complaint would have resulted in permanent disbarment had Respondent not chosen voluntary resignation from the bar. If Respondent seeks reinstatement, the misconduct admitted in Respondent’s affidavit of resignation, as well as any other allegations of misconduct, will be addressed in the reinstatement process. Approval of a petition for reinstatement is discretionary and may be granted only if Respondent could meet the most stringent burden of proving by clear and convincing evidence all the requirements of Admission and Discipline Rule 23(4)(b), including without limitation that he can safely be recommended to the legal profession, the courts and the public as a person fit to represent them and otherwise act in matters of trust and confidence; and that he is genuinely remorseful for his misconduct. Acceptance of Respondent’s resignation from the bar serves only to remove him from the practice of law and does not relieve him from any liability he might have for his misconduct under civil or criminal law.

The costs of this proceeding are assessed against Respondent. With the acceptance of this resignation, the hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Dan J. MAY, Respondent.
    No. 34S00-1301-DI-86.
    Supreme Court of Indiana.
    Aug. 15, 2013.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: After a hearing in a divorce case, Respondent grabbed his client by the arms, pushed him against a rail in the courtroom in a manner that caused the client to be bent backward over the rail. Respondent was charged with battery and entered into a pre-trial diversion agreement with the prosecutor.

The parties cite the following fact in aggravation: Respondent has substantial experience in the practice of law. The parties cite Respondent’s lack of disciplinary history as a fact in mitigation.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

8.4(b): Committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.
8.4(d): Engaging in conduct prejudicial to the administration of justice.

The parties agree that Respondent also failed to comply with Admission and Discipline Rule 22 (Oath of Attorneys) by acting in an offensive manner.

Discipline: The parties propose the appropriate discipline is a 60-day suspension with automatic reinstatement. The Court, having considered the submissions of the parties, now approves the agreed discipline.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 60 days, beginning September 27, 2013. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the period of suspension, provided there are no other suspensions then in effect, Respondent shall be automatically reinstated to the practice of law, subject to the conditions of Admission and Discipline Rule 23(4)(c).

The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 2S(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Douglas S. FOLLOWELL, Respondent.
    No. 77S00-0806-DI-375.
    Supreme Court of Indiana.
    Aug. 15, 2013.
   PUBLISHED ORDER REVOKING PROBATION AND IMPOSING SUSPENSION

On April 9, 2009, the Court entered an order approving the parties’ conditional agreement that Respondent violated Indiana Professional Conduct Rule 8.4(b) by committing a criminal act that reflects adversely on the lawyer’s trustworthiness or fitness as a lawyer. This was based on Respondent’s conviction of three alcohol-related crimes. The Court entered an order suspending Respondent from the practice of law for a period of 180 days, with 30 days actively served, beginning June 1, 2009, and the remainder stayed subject to completion of at least 36 months of probation with monitoring by the Indiana Judges and Lawyers Assistance Program (“JLAP”). One condition of probation was that Respondent have no violations of the JLAP monitoring agreement, the law, or the Rules of Professional Conduct. The order provides that if Respondent violates his probation, the Commission will file a motion to revoke his probation and request that Respondent actively serve his suspension without automatic reinstatement.

Respondent was arrested in Florida on May 5, 2012, and on July 5, 2012, he entered a plea of nolo contendere and was convicted of “First Offense, Misdemeanor for Driving Under the Influence of Alcohol, in Florida.” On May 9, 2018, the Commission filed a verified motion to revoke Respondent’s probation, pursuant to Admission and Discipline Rule 23(17.2)(a), asserting this arrest and conviction violated the conditions of his probation. Respondent filed a response admitting the Commission’s factual allegations but requesting that the Court take into account certain circumstances in deciding whether his probation should be revoked. He recounts his compliance with the terms of his probation for almost three years until his arrest in Florida and says that he has scheduled counseling sessions with an alcohol advisor in Florida. He suggests no alternative to revocation of probation, such as extension of his probation with renewed JLAP monitoring.

Having considered the parties’ submissions, the Court concludes that Respondent has committed a material violation of his probation — one that is of the same type of misconduct that resulted in his initial discipline. The circumstances cited by Respondent are insufficient to convince this Court that his probation should not be revoked.

Being duly advised, the Court GRANTS the motion and revokes Respondent’s probation. Respondent shall be suspended from the practice of law for a period of not less than 150 days, without automatic reinstatement, beginning September 27, 2013. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The Court directs the Clerk to serve a copy of this Order upon Respondent and the Executive Secretary by personal service or by certified mail return receipt requested. The Court further directs the Clerk to forward a copy of this Order and to all entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.

      . The Commission states that it delayed in seeking revocation of probation based on a letter in which Respondent stated that he was in the process of retiring and relocating to Florida. The Commission states that it recently became aware that Respondent was planning to return to Indiana to practice law.


author: RUSH, Justice.

text:
    In re the Matter of the ADOPTION OF Minor Children C.B.M. and C.R.M. C.A.B., Appellant/Natural Mother, v. J.D.M. and K.L.M., Appellees/Adoptive Parents.
    No. 37S03-1303-AD-159.
    Supreme Court of Indiana.
    Aug. 16, 2013.

      Mark L. Callaway, Rensselaer, IN, Attorney for Appellant.
    Charles P. Rice, South Bend, IN, Attorney for Appellees.
    Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for the State of Indiana.
    Barry A. Chambers, Carey Haley Wong, Indianapolis, IN, Attorneys for Amicus Curiae Child Advocates, Inc.
   RUSH, Justice.

The foster parents of C.B.M. and C.R.M. adopted them while their natural mother’s termination of parental rights (TPR) appeal was still pending. Our statutes specifically allow those competing processes to overlap. But choosing to do so creates the devastating possibility of jeopardizing a finalized adoption if the underlying TPR judgment is later reversed on appeal.

That is exactly what happened here, and we cannot unscramble that egg. Either the adoptive family prevails in violation of the natural mother’s constitutional rights, or the natural mother prevails at the risk of pulling the children away from the only family they know. But the natural mother’s rights, both as a parent and as a litigant with an absolute right to an appeal, are constitutionally protected. We cannot cut corners on those rights, despite our concerns for the children’s undoubtedly vital interest in a speedy and permanent placement.

We therefore conclude that the trial court should have set aside the adoption, because the prior TPR “judgment upon which it is based has been reversed or otherwise vacated” — making the adoption voidable under Indiana Trial Rule 60(B)(7). And since a dilemma like this ill-serves the interests of everyone involved, we also offer guidance for mitigating the harsh result in this case, and in any future cases of this type.

Facts and Procedural History

C.A.B. is the natural mother of fraternal twins C.B.M. and C.R.M. (“Twins”), born in June 2004. Paternity has never been established, and their father’s identity is not known. In January 2006, the Twins were determined to be children in need of services (CHINS) and removed from Natural Mother’s home. TPR proceedings began against Natural Mother in July 2007, and TPR was granted in January 2008 over the strong objections of the Twins’ guardian ad litem. Natural Mother promptly appealed the TPR judgment.

In early summer 2008, the Twins’ foster parents J.D.M. and K.L.M. (“Adoptive Parents”) petitioned to adopt them. DCS gave its consent to the adoption, which was granted about ten weeks later. None of the parties to the adoption notified Natural Mother of the proceedings, because notice is not required to a parent whose rights have been terminated. Ind. Code § 31-19 — 2.5-^4(4). Nor did Mother make any effort to file a stay of the trial court’s TPR judgment; and DCS made no effort to notify the Court of Appeals that the adoption was pending or that it had consented to the adoption. Mother’s TPR appeal was still pending at the time the adoption was finalized.

Just two months later, in September 2008, the Court of Appeals reversed the TPR judgment against Natural Mother. The court held that in view of recent positive changes in Natural Mother’s life, DCS had failed to carry its burden of establishing by clear and convincing evidence that the conditions leading to the Twins’ removal would not be remedied and that continuing the parent-child relationship would threaten the Twins’ well-being. Moore v. Jasper Cnty. Dep’t of Child Servs., 894 N.E.2d 218, 228-29 (Ind.Ct.App.2008). Based on that decision, Natural Mother petitioned the adoption court in January 2009 to set aside the adoption decree. The Adoptive Parents promptly objected.

Ultimately, Natural Mother’s petition to set aside the adoption was not resolved until three years later. In July 2009, she moved for summary judgment, arguing that because she was never notified of the adoption, the adoption decree was void for lack of personal jurisdiction; and that the statutes allowing the adoption to proceed during her TPR appeal unconstitutionally deprived her of Due Process. The trial court heard the motion in August 2010, and denied the motion in December 2011. Its ruling agreed with the Adoptive Parents that Natural Mother’s constitutional rights were not violated, and that her remedy was to seek a stay of the TPR judgment pending appeal under Indiana Trial Rule 62, which she did not do. The trial court therefore refused to declare the statutes unconstitutional, denied the petition to set aside the adoption, and denied summary judgment. Natural Mother’s motion to correct error was also denied, and she appealed.

The Court of Appeals reversed, though it divided on the reasons for doing so. The majority concluded that even though Natural Mother was not entitled by statute to notice of the adoption because her rights had been terminated, DCS nevertheless acted “arbitrarily and capriciously” by failing to provide such notice, and by consenting to the adoption without having done so. In re Adoption of C.B.M. and C.R.M., 979 N.E.2d 174, 185 (Ind.Ct.App. 2012). Judge Vaidik separately concurred, believing the issue was better resolved by construing the adoption statutes to require final appellate resolution of TPR cases before dispensing with notice to or consent of the natural parents. Id., 979 N.E.2d at 186. We granted transfer, 984 N.E.2d 221 (Ind.2013) (table), thereby vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).

We now reach the same result as the Court of Appeals, but for a different reason — that because the adoption was based on the TPR judgment, Natural Mother became entitled to set aside the adoption under Trial Rule 60(B)(7) when she prevailed in her TPR appeal.

Standard of Review

Relief from judgment under Trial Rule 60 is an equitable remedy within the trial court’s discretion. Outback Steakhouse of Fla., Inc. v. Markley, 856 N.E.2d 65, 72 (Ind.2006). Accordingly, we generally review a trial court’s Rule 60 ruling only for abuse of discretion. Id. But when “the trial court rules on a paper record without conducting an evidentiary hearing,” as happened here, we are “in as good a position as the trial court ... to determine the force and effect of the evidence.” GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind.2001) (quoting Farner v. Farner, 480 N.E.2d 251, 257 (Ind.Ct.App. 1985)). Under those circumstances, our review is de novo. See id. (applying de novo review to a motion to dismiss, where trial court resolved disputed facts from a paper record). See also Williams v. Tharp, 934 N.E.2d 1203, 1215 (Ind.Ct.App. 2010), trans. denied (reviewing de novo denial of relief under T.R. 60(B)(8) when decision was made on a paper record).

Analysis

The parties’ dispute centers around two basic issues. First, they disagree about whether the adoption mooted Natural Mother’s TPR appeal because of her failure to seek a stay of the TPR judgment pending appeal. Second, they dispute whether letting the Twins be adopted without Natural Mother’s notice or consent violated her Due Process rights — which determines whether the adoption was void or merely voidable, and therefore whether Natural Mother was required to plead and prove a “meritorious defense” to set aside the adoption under Indiana Trial Rule 60(B).

We agree with Natural Mother that her right to set aside the adoption did not depend on staying the TPR. But while the parties’ Trial Rule 60(B) arguments take aim at sub-paragraphs (6) and (8), we find the bullseye in between: Under sub-paragraph (7), the adoption was only voidable, but for a reason that does not require Natural Mother to show a meritorious defense (and does not require us to address the constitutional question her “voidness” argument implicates).

I. Undue Delay in Cases Involving Children’s Rights.

Before addressing the parties’ issues, we pause to address an issue they have not raised — the three-year delay in resolving Natural Mother’s petition to set aside the adoption at the trial level. We are gravely troubled by that lengthy delay. Time is of the essence in matters involving children, as the Twins illustrate particularly vividly. They became CHINS at age 1½, their parent-child relationship with Natural Mother was severed at age 4½, and their adoption was challenged at age 5½. They are now age 10, with this dispute still unresolved.

In our Appellate Rules, we have strictly limited the parties’ ability to seek extensions of time in eases involving children’s rights, and have required ourselves to give them priority consideration. Ind. Appellate Rules 21(A), 35(C)-(D). We applaud the Court of Appeals for its promptness in resolving the previous level of this appeal — and express our firm expectation that parties and courts will do likewise at the trial level, even without being expressly compelled to do so by a comparable Trial Rule.

II. Staying TPR Judgments Pending Appeal.

At the outset, the Adoptive Parents and Attorney General argue that Natural Mother’s TPR appeal was rendered moot when the adoption was granted—and that if she wished to preserve her rights, she should have asked the TPR court to stay its judgment pending her appeal. Without such a request, they reason, the Twins’ need for a speedy and permanent placement trumps Natural Mother’s rights. In view of the two separate constitutional rights that are implicated by this argument, we cannot agree.

Foremost, despite Natural Mother’s struggles, her parental rights are precious and protected by our Federal and State constitutions. Our Supreme Court has “recognized on numerous occasions that the relationship between parent and child is constitutionally protected,” Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), and that “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.” Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Accordingly, “the interest of a parent in the companionship, care, custody, and management of his or her children comes to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.” Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (internal quotation and substitution omitted).

Even apart from the importance of Natural Mother’s substantive parental rights, Indiana is particularly solicitous of the right to appeal. Article 7, Section 6 of the Indiana Constitution guarantees “in all cases” — including TPR — “an absolute right to one appeal.” But her appellate right would mean little if it could be short-circuited by an adoption judgment being issued before her appeal is complete. It would offend her rights as both a mother and an appellate litigant to let her parent-child relationship with the Twins become contingent upon a race to the courthouse, hinging on whether the adoption could be finalized before the TPR appeal was complete.

The Adoptive Parents and Attorney General say it was Natural Mother’s sole responsibility to avoid such a “race” by seeking a stay of the TPR judgment pending her appeal. But Court of Appeals precedent suggests otherwise. In Cunningham v. Hiles, 182 Ind.App. 511, 395 N.E.2d 851, 853 (1979), modified on reh’g, 402 N.E.2d 17 (Ind.Ct.App.1980), the trial court had refused to enjoin construction of a music store on a residential lot, but the Court of Appeals reversed. The store owner then sought rehearing, arguing the appeal was moot because he had built the store in reliance on the trial court’s judgment while the appeal was pending — the first time the Court of Appeals had been made aware of that important fact. 402 N.E.2d at 20. The Court’s opinion on rehearing made clear that “the parties should have informed this Court of the fact that the music store had been constructed,” suggesting that the “duty to place such matters before this Court by proper petitions, motions, or challenges by verified pleadings” is shared. 402 N.E.2d at 20 (emphasis added; internal citations, quotations, and substitutions omitted). In so holding, the Court rejected the store owner’s claim that the fault lay entirely with the appellants for failing “to seek an appeal bond or otherwise stay enforcement of the denial of the injunction pending the outcome of their appeal,” id. at 21 n. 4. In sum, despite prevailing at trial, the owner “built the music store at his own peril” while the appeal was pending. Id.

We see this case in a similar light. Natural Mother certainly could have sought a stay of the TPR in hopes of avoiding the dilemma this case presents. Yet DCS was also a party to that appeal — and unlike Natural Mother, DCS also participated in the adoption, through the power to consent (or not) to the Twins’ adoption while the TPR appeal was pending. If anything, then, DCS was in a better position than Natural Mother to make the Court of Appeals aware of “post-judgment events which may affect the outcome of a pending appeal,” id. at 20, such as its intent to consent to the adoption. DCS had every right to rely on the trial court’s TPR judgment and consent to the adoption while the appeal was still pending, I.C. § 31—19—11— 6—but as in Cunningham, such bold reliance came at its own (and thus, the Twins’) peril. 402 N.E.2d at 21 n. 4.

Accordingly, we decline to hold that Natural Mother was required to file a stay in order to preserve a meaningful appellate remedy for her parental rights, and proceed to the merits of her petition to set aside the adoption.

III. Setting Aside Adoptions When the Prior TPR Is Reversed.

Reversal of the TPR judgment is significant because consent is ordinarily a vital part of an adoption. “[A] trial court deciding an adoption petition must find that ‘proper consent, if consent is necessary, to the adoption has been given.’ ” In re Adoption of N.W.R., 971 N.E.2d 110, 113 (Ind.Ct.App.2012) (quoting I.C. § 31-19-11-1(a)(7)). In most cases, that entails notifying the natural parents of the adoption, I.C. § 31-19-2.5-3(a)(1), and obtaining their written consent to it, I.C. § 31-19—9—1 (a)(1)—(2). When consent is required, a defect in consent will render the adoption decree invalid, and require the adoption to be reversed and remanded. See N.W.R., 971 N.E.2d at 117 (DOS’s consent was required because child was ward of the State; trial court abused its discretion in granting adoption after DCS had sought to withdraw its consent).

But even though notice and consent are generally required, there are two classes of exceptions. One category permits adoption without the natural parent’s consent, if the court finds that the parent has abandoned, deserted, or failed to support or communicate with the child, I.C. § 31-19-9 — 8(a)(1)—(2); or that the parent is legally incompetent or unfit, I.C. § 31-19-9-8(a)(9), (11). In these cases, the natural parent is still entitled to notice, I.C. § 31-19-4.5-2, so they can appear and defend against the allegations.

In the other category, though, the natural parent is not even entitled to notice. I.C. § 31-19-2.5^4. Generally, this category is based on a prior judicial finding of parental misconduct — for example, Natural Mother’s TPR judgment, I.C. § 31-19-9 — 8(a)(8); or conviction and incarceration for certain crimes against the child or the child’s other parent or sibling. I.C. §§ 31-19-9-9, -10. In these cases, notice is deemed unnecessary because the parent had opportunity to contest the allegation in a prior proceeding — in essence, treating the prior decision as conclusive of the issue.

But what happens when that “conclusive” prior decision is reversed? Even though finality of judgments is a vital policy, it is not absolute, and sometimes yields to broader interests of justice. Trial Rule 60(B) contemplates such situations, providing in relevant part:

On motion and upon such terms as are just the court may relieve a party ... from a judgment ... for the following reasons: * ⅜ *
(6) the judgment is void;
(7) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(8) any reason justifying relief from the operation of the judgment, other than those reasons set forth in sub-paragraphs (1), (2), (3), and (4).
.... A movant filing a motion for reasons (1), (2), (3), (4), and (8) must allege a meritorious claim or defense.

(Emphasis added.) The parties dispute whether the adoption is void under sub-paragraph (6), or merely voidable under sub-paragraph (8), with the latter provision requiring Natural Mother to show a “meritorious defense” to the adoption before she could have it set aside. But we find the answer in the provision in between — that the adoption was merely voidable, but for a reason specifically contemplated by sub-paragraph (7), which requires no meritorious defense.

Under the second clause of Trial Rule 60(B)(7), a judgment may be set aside when “a prior judgment upon which it is based has been reversed or otherwise vacated.” That provision “applies only to related judgments where the second judgment is based upon the first judgment, and the first has been reversed or otherwise vacated.” Dempsey v. Belanger, 959 N.E.2d 861, 868 (Ind.Ct.App.2011), trans. denied (quoting 22A Stephen E. Arthur, Indiana Practice: Civil Trial Practice § 37.14 (2d ed. 2007)). Put another way, it applies only when the first judgment “has claim or issue preclusion effects on the second,” or provides “a necessary element of the [subsequent] decision.” See Kaler v. Bala (In re Racing Servs., Inc.), 571 F.3d 729, 732 (8th Cir.2009) (quoting 12 James Wm. Moore et al., Moore’s Federal Practice § 60.46[1] (3d Ed. 2009) and Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 650 (1st Cir.1972)) (all construing Fed.R.Civ.P. 60(B)(5)’s similar provision).

Here, the adoption “is based upon” the TPR judgment in the sense Dempsey and Kaler contemplate. If not for the preclu-sive effect of the prior TPR judgment, the Twins’ adoption would have required notice to Natural Mother, I.C. § 31-19-2.5-3(a)(1). Then, if she refused to consent, the adoption would have required proof of an additional element — abandonment, unfitness, or one of the other statutory grounds for dispensing with consent, I.C. § 31-19-9-8(a). Because the TPR let the Adoptive Parents finalize the adoption without either obtaining Natural Mother’s consent or proving it was unnecessary, we conclude that the adoption was “based on” the prior TPR judgment. Accordingly, Natural Mother became entitled to relief from the adoption when the TPR was “reversed or otherwise vacated” on appeal.

And since Natural Mother’s petition is within 60(B)(7)’s specific provisions, she need not show a “meritorious defense” as sub-paragraph (8) would require. Sub-paragraphs (5) through (7) of Trial Rule 60(B) are expressly exempted from that requirement—seemingly recognizing that those circumstances inherently jeopardize confidence in the integrity of the judicial process, even if the outcome was unaffected. Adoptive Parents’ reliance on the 60(B)(8) “catch-all,” and its meritorious defense requirement, is therefore misplaced; Trial Rule 60(B)(7)’s more specific provision is controlling. Rumfelt v. Himes, 438 N.E.2d 980, 983-84 (Ind.1982) (“[A]s with statutes, a specific rule controls over a general one on the same subject matter.”).

We therefore conclude that the trial court abused its discretion by refusing to set aside the Twins’ adoption. We understand the trial court’s concern for a speedy, permanent placement for the Twins. But a fit parent’s rights are fundamental and constitutionally protected, In re Visitation of M.L.B., 983 N.E.2d 583, 586 (Ind.2013) (citing Troxel v. Granville, 530 U.S. 57, 64, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)), and even a matter as important as the Twins’ best interests does not necessarily override that right. Id. Since the only judicial determination that Natural Mother is unfit to retain her parental rights has been overturned on appeal, letting the adoption stand would be an overreach of State power into family integrity. The adoption must be set aside.

IV. Avoiding a Repeat of This Situation.

We are all too aware of the harsh effects this decision may have on the Twins, and future children who may find themselves similarly situated through no fault of their own. We therefore offer guidance for mitigating those harsh effects in this case, and potentially avoiding them completely in future cases.

Foremost, this case illustrates the wisdom of doing more than “just the bare minimum.” Due Process notice requirements are just that — a bare minimum that parties always may, and sometimes ought to, exceed. While the Adoptive Parents were not required to serve notice on Natural Mother, I.C. § 31-19-2.5-4(2)(F), doing so voluntarily may well have saved the adoption from reversal. If Natural Mother had been served, the Adoptive Parents could then have requested a contested adoption hearing for litigating an alternative basis for dispensing with consent under Indiana Code section 31-19-9-8(a). Natural Mother would then have been offered a “day in court” independent of the TPR, giving this Court an alternative basis to affirm the adoption — because either she would have appeared and been heard, or else failed to appear and been properly defaulted. We emphasize that such notice is not required, and adoptive parents have the statutory right to rely solely on a trial-level TPR judgment and seek adoption pending the TPR appeal. We merely caution that such reliance comes at the adoptive parents’ peril. See Cunningham, 402 N.E.2d at 21 n. 4.

Second, some of the uncertainty for the Twins could have been avoided if DCS had left the underlying CHINS case open until Mother’s TPR appeal was complete. As this case shows, children may have a particularly great “need of services” when a TPR judgment is reversed on appeal. By then, they will have been removed' from the parents’ home for a substantial time, and will be bonding into a new home — especially when, as here, the foster parents plan to adopt. And the natural parent, even if not unfit, may also be in need of services before the children could appropriately return to their original home. Yet without a CHINS case, there is no ready means to provide the support all the parties here will require while reexamining the Twins’ status in light of the TPR reversal. (Indiana Code section 31-9-2-13 could authorize the Adoptive Parents to seek temporary custody of the Twins while the adoption is pending— which may very well be beneficial to the Twins, but falls far short of the services a CHINS case would permit.) We strongly suggest that in the future, DCS’s best practice would be to leave underlying CHINS cases open until any related TPR appeal is complete.

Finally, we reiterate that granting an adoption pending TPR appeal is a discretionary decision of the trial court. Our Legislature has authorized the practice, and there are surely cases in which it will be entirely appropriate to expedite the adoption. Yet it is only permitted, not required. In view of the potentially devastating consequences of having an adoption invalidated by a TPR appeal, we encourage courts to exercise that authority with an abundance of caution. Speedy permanency for children is vitally important. But balanced against the risk that materialized in this case, a few months’ additional delay in granting an adoption may often be preferable.

Conclusion

There are no winners in some cases, and this is one of them. Ruling in favor of the Adoptive Parents would violate the Natural Mother’s constitutional rights, while the opposite ruling would risk pulling the Twins away from the family they have lived with for most of their lives, and the only stable family they have ever known. But despite the Twins’ need for permanency, natural parents’ consent is a vital condition precedent to most adoptions — and we must take a narrow view of the exceptions to that principle, out of due regard for the limitations of judicial power into family life, even for very imperfect families. Thus, when the TPR judgment in this case was reversed, we must conclude that the no-consent adoption that followed on its heels became voidable under Trial Rule 60(B)(7). The trial court therefore abused its discretion in failing to set aside the adoption.

Accordingly, we reverse the trial court’s judgment, and remand with instructions to vacate the adoption decree within seven days of this Court’s opinion being certified, to reset the adoption petition for a contested hearing, and to promptly serve notice and summons of that hearing on Natural Mother. Pending that hearing, the trial court could exercise its authority to entertain motions regarding temporary custody of the Twins under Indiana Code section 31-19-2-13, until final judgment is entered.

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

      . See generally Kate M. Heideman, Comment, Avoiding the Need to "Unscramble the Egg:” A Proposal for the Automatic Stay of Subsequent Adoption Proceedings When Parents Appeal a Judgment Terminating Their Parental Rights, 24 St. Louis U. Pub.L.Rev. 445 (2005) (discussing Illinois, Michigan, and Missouri cases involving TPRs being reversed on appeal after an adoption had already been granted, and proposing that TPR judgments should be automatically stayed pending appeal to avoid such dilemmas).

      . In July 2012, while this case was pending before the Court of Appeals, that Court received notice that J.D.M., the adoptive father, was killed in a traffic accident in May 2011. Like the Court of Appeals, we will continue to refer to the Adoptive Parents in the plural, for the sake of consistency with prior proceedings.

      . We acknowledge the Attorney General’s citation to In re Tekela, 202 Ill.2d 282, 269 Ill.Dec. 119, 780 N.E.2d 304, 309 (2002), which held that a TPR appeal does become moot when the children are adopted. But we have found no other case that reaches such a conclusion. Moreover, Illinois has abrogated Tekela by a rule blocking adoptions while a TPR appeal is pending. Ill. Sup.Ct. R. 305(e). A similar statute has avoided these consequences in Michigan as well, In re JK, 468 Mich. 202, 661 N.W.2d 216, 224 (2003)—and Missouri has established a common-law rule that it is always an abuse of discretion to grant an adoption while a TPR appeal is pending, State ex rel. T.W. v. Ohmer, 133 S.W.3d 41, 43 (Mo.2004). We agree with Tekela’s recognition of a compelling interest in speedy placement and permanency for the children, but we will not advance that policy goal at a natural parent's constitutional expense.

      . Resting our conclusion on Trial Rule 60(B)(7) also lets us avoid the constitutional question inherent in Natural Mother’s 60(B)(6) argument that the adoption is void on Due Process grounds. We "traditionally foreswear deciding a constitutional question unless no non-constitutional grounds present themselves for resolving the case under consideration.” Citizens Nat. Bank of Evansville v. Foster, 668 N.E.2d 1236, 1241 (Ind.1996).

      . We express no opinion about whether DCS may be entitled to reopen the CHINS case under these circumstances.


text:
    Ronald G. BECKER, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
    No. 45S03-1301-CR-9.
    Supreme Court of Indiana.
    Aug. 22, 2013.

      Mark A. Bates, Schererville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, David Steiner, Kathy Bradley, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
   RUSH, Justice.

Criminal cases are prosecuted in the name of the “State of Indiana.” But as Shakespeare famously asked, “What’s in a name? that which we call a rose/By any other name would smell as sweet.” Gertrude Stein’s answer was that “Rose is a rose is a rose is a rose.” Similarly, we conclude that in this matter related to the sex offender registry, “the State is the State,” whether it acts through a deputy prosecutor or through the Department of Correction. Both entities share the same substantial interest — to maximize an offender’s registration obligations — and are therefore in privity with each other in cases involving that interest. Accordingly, we hold that when the State, (via a local prosecutor) fails to appeal an adverse sex-offender registration ruling, th¡e State (via the DOC) becomes bound by itj under principles of res judicata. ;

The DOC’s 2011 intervention in this case therefore came too late. On its face, the DOC’s motion challenged a trial court ruling issued a few weeks earlier — but in substance, it sought reconsideration of an unappealed 2008 ruling that had long since become binding against the State. We thus reverse the trial court’s order granting the DOC’s Motion to Correct Error.

Facts and Procedural History

A jury convicted Defendant Ronald Becker of B-felony criminal deviate conduct, and he was sentenced in March 1998 to six years executed. In late 2000, he was released from prison and began registering as a sex offender annually for ten years after release, as Indiana law at the time of his offense and conviction required. !

A few months after Becker’s sentencing, though, Indiana had enacted its first heightened registration requirements for “sexually violent predators” (SVPs). As those statutes existed from 1998 to 2005, the window in which Becker was released, imposing SVP status required k trial court to find at sentencing based on the testimony of a panel of experts that the defendant was likely to reoffend because of a mental abnormality or personality disorder. The offender would then have to register for a longer term — at first, “for an indefinite period” until a similar panel of experts concluded otherwise; then as of 2003, for life. But because those statutes were not enacted until after Becker’s sentencing, the court made no such finding in his case.

Then in 2006, the statute was expanded so that certain convictions — including Becker’s offense of criminal deviate conduct — established SVP status as a matter of law; and in 2007, SVPs were required to register every 90 days, instead of annu-álly. Because of those changes, the sheriffs department notified Becker to begin registering every 90 days. Becker then petitioned the sentencing court in 2008 for an order relieving him from the additional SVP obligations, arguing they were an unconstitutional ex post facto law as applied to him. In February 2008, following a contested hearing, the trial court found that SVP status did not exist when Becker was sentenced; and that when he was released from prison and his registration obligation began, SVP status could only be determined by an affirmative finding made at sentencing. The Court therefore concluded that since no such finding had been made at Becker’s sentencing, retroactively classifying him as an SVP would be unconstitutional. The trial court’s order held in relevant part:

Because the status and consequent burdens and responsibilities of being judicially deemed a “sexually violent predator” did not exist at the time ... Beeker[] was sentenced, no judge has ever determined him to be a sexually violent predator and the statute constitutes an ex post facto law in his case. The defendant shall continue to register annually and not every ninety (90) days.

Though the State had objected to Becker’s petition, it did not appeal the 2008 Order; nor did the DOC intervene to challenge it.

In early 2011, Becker returned to court after ten years on the sex-offender registry, seeking clarification of the 2008 Order, which had not specifically stated whether he was also exempt on ex post facto grounds from the SVP statute’s lifetime registration term. This time, the State entered into an Agreed Order with Becker, reciting that he had satisfied his registration obligations under the ten-year statute that existed at the time of his conviction and was no longer required to register. The trial court approved the agreement on June 10, 2011.

Barely two weeks later, this Court decided Lemmon v. Harris, which rejected an ex post facto argument identical to the one on which Becker had prevailed in the 2008 Order. 949 N.E.2d 803 (Ind.2011). This time, the Attorney General intervened on behalf of the DOC as administrator of Indiana’s sex offender registry, and filed a timely Motion to Correct Error arguing that under Harris, extending Becker’s registration obligation from ten years to life was not an ex post facto violation. The trial court granted the DOC’s motion and vacated both the Agreed Order and the 2008 Order, thus ordering Becker to continue registering every 90 days for his lifetime.

Becker appealed, arguing that Harris is distinguishable, and that the 2008 Order was res judicata against the DOC. In an unpublished decision, the Court of Appeals held that Harris was indistinguishable, and that the 2008 Order was not binding against the DOC because Becker became an SVP “not because of action on the part of the DOC, but by operation of law” under Harris. Becker v. State, No. 45A03-1112-CR-539, 2012 WL 2152693 (Ind.Ct. App. June 14, 2012).

The Court of Appeals was right about Harris, but we granted transfer because we find a different issue dispositive — that even though the 2008 Order was erroneous, it nevertheless became res judicata against “the State,” both the prosecutor and the DOC, when the State failed to appeal it. We therefore reverse the trial court.

Standard of Review

In this case, Becker appeals from the trial court’s grant of the DOC’s Motion to Correct Error. Generally, rulings on motions to correct error are reviewed only for abuse of discretion, recognizing the trial court’s superior position to resolve disputed facts. In re S.H, 984 N.E.2d 630, 633 (Ind.2013). But when, as here, a motion to correct error depends on a question of law, we review the trial court’s resolution of that question de novo. Id.

I. Res Judicata

The parties’ main dispute on transfer is whether the DOC and the prosecutor are in privity as “the State” — because if so, the DOC’s relitigation of Becker’s SVP status is barred by res judicata. Res judi-cata, whether in the form of claim preclusion or issue preclusion (also called collateral estoppel), aims to prevent repetitious litigation of disputes that are essentially the same, by holding a prior final judgment binding against both the original parties and their privies. See, e.g., Indianapolis Downs, LLC v. Herr, 834 N.E.2d 699, 703-05 (Ind.Ct.App.2005), trans. denied.

The DOC does not dispute that the 2008 Order was a final judgment, but instead challenges its privity with the prosecutor. “[A] ‘privy5 is one who after rendition of [a] judgment has acquired an interest in the subject matter affected by the judgment,” or “whose interests are represented by a party to the action.” Micro-Vote Gen. Corp. v. Ind. Election Comm’n, 924 N.E.2d 184, 196 (Ind.Ct.App.2010). “[A]n entity does not have to control a prior action ... for privity to exist.” Id. “[I]n determining the parties for res judi-cata purposes, [the] court looks beyond the nominal parties and treats those whose interest[s] are involved as the real parties.” Id. Under that standard, the DOC is in privity with the prosecutor, and is therefore bound by the prosecutor’s failure to appeal the 2008 Order’s final judgment about Becker’s SVP status.

The DOC argues that it and the Deputy Attorneys General who ordinarily represent it have special expertise in the law governing administration of the sex offender registry, so that its interests are not “adequately represented” by a local prosecutor. But this argument misunderstands res judicata terminology. “Adequate representation” is not about the qualifications of the attorneys, but the commonality of the parties’ substantial interests. See, e.g., Hansberry v. Lee, 311 U.S. 32, 44-45, 61 S.Ct. 115, 85 L.Ed. 22 (1940) (holding that an agreed judgment upholding the enforceability of racially restrictive covenants was not binding against later challengers to the covenants, whose “substantial interests [were] not necessarily or even probably the same as” the interests of the prior litigants). Here, the prosecutor had the same substantial interest in the 2008 proceedings as the DOC — keeping Becker on the registry under the heightened SVP requirements. The prosecutor therefore also had the same incentive as the DOC to appeal from the adverse ruling in the 2008 Order, and yet it failed to do so. Indeed, the prosecutor objected to the relief granted to Becker in 2008 on precisely the same ex post facto grounds the DOC now seeks to reargue — grounds that might have been vindicated in this case instead of Harris, had the 2008 Order been appealed. Since the DOC’s interests were more than “adequately represented” by the local prosecutor, they are in privity for purposes of res judicata, and so the 2008 Order — and the failure to appeal from it — are binding against the DOC.

II. Intervention

The 2008 Order is also binding against the DOC for a second reason unrelated to privity or res judicata—that the DOC’s 2011 intervention was simply too late to challenge the 2008 Order. Generally speaking, parties who intervene in a case must take the case as they find it. “An intervenor is treated as if it was an original party and has equal standing with the parties.” Mercantile Nat. Bank of Ind. v. Teamsters Union Local No. 142 Pension Fund, 668 N.E.2d 1269, 1271 (Ind.Ct.App.1996). But that means that intervenors, just as any other party, are “not permitted to relitigate matters already determined in the case,” and are bound “to all prior orders and judgments in the case.” Id. Though the DOC’s Motion to Correct Error was timely as to the 2011 Agreed Order, granting that Motion would necessarily nullify the 2008 Order as well-and that Order had become final more than three years earlier. Under black-letter intervention principles, then, the 2008 Order was binding against the DOC and could not be relitigated for that reason as well.

Conclusion

If the res judicata shoe were on the other foot in this case, Becker would be hard-pressed to avoid its preclusive effects. There is, after all, only one of him, with no alter egos to intervene on his behalf if a law later changed in a way favorable to his position. Final judgments in a criminal case should be similarly binding against “the State” — not just the prosecutor, but also the various alter egos of the State whose substantial interests are adequately represented by the prosecutor. In this case, the DOC is also “the State” — not because it is a State agency, but because it has the same substantial interests as the prosecutor in maximizing a sex offender’s registration obligations. The DOC, being in privity with the prosecutor, is thus bound by the unappealed 2008 final judgment in Becker’s favor. We therefore reverse the trial court’s grant of the DOC’s Motion to Correct Error, thus reinstating the June 2011 Agreed Order finding that Becker’s registration obligations are complete.

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

      . William Shakespeare, Romeo and Juliet act 2, sc. 2.

      . Gertrude Stein, Sacred Emily, in Geography and Plays 178, 187(1922).

      . Ind.Code §§ 5-2-12-4(l)(B), -5, -13 (1997).

      . I.C. §§ 5-2-12-4.5, 35-38-1-7.5 (2003).

      . I.C. § 5-2-12-13(b) (1998).

      . I.C. § 5-2-12-13(b) (2003).

      . I.C. § 35-38-1-7.5(b)(1)(B) (2006).

      . I.C. § 11-8-8-14(b) (2008).

      . See Ind. Const. art. 1, § 24.


author: MASSA, Justice.

text:
    John W. SCHOETTMER & Karen Schoettmer, Appellants (Plaintiffs below), v. Jolene C. WRIGHT & South Central Community Action Program, Inc., Appellees (Defendants below).
    No. 49S04-1210-CT-607.
    Supreme Court of Indiana.
    Aug. 27, 2013.

      Jeremy S. Baber, Carmel, IN, Attorney for Appellants.
    James J. Hutton, Indianapolis, IN, Attorney for Appellees.
   MASSA, Justice.

After he was injured in an automobile accident, John Schoettmer cooperated with the other driver’s insurer in hopes of settling his claim. Nearly a year later, when settlement proved elusive, he hired a lawyer and filed suit. Only then did he learn that the other driver was employed by a political subdivision subject to the Indiana Tort Claims Act. Schoettmer cited several reasons to excuse his failure to comply with the notice requirements of that Act, including waiver, substantial compliance, agency, and estoppel. We find the first three unavailing, but conclude he should be permitted to present proof of estoppel to the trial court, and we reverse and remand on that basis.

Facts and Procedural History

On November 24, 2008, Schoettmer was driving down North German Church Road in Indianapolis. As he passed through the 46th Street intersection, he was involved in a collision with Jolene Wright, an employee of South Central Community Action Program, Inc. Schoettmer suffered personal injuries as a result of the collision.

On December 29, Schoettmer received a letter from Cincinnati Insurance Company, South Central’s liability insurer, stating that it had been trying unsuccessfully to contact him and requesting information to process his claim. About two weeks later, Schoettmer provided a recorded statement to a Cincinnati Insurance agent, who advised him his claim could not be settled until his medical treatments were completed. On April 22, 2009, those treatments were completed, and Schoettmer signed a release form giving Cincinnati Insurance access to his medical records and bills. On August 13, the agent informed him she had all the information necessary to settle his claim, and Cincinnati Insurance subsequently offered Schoettmer a settlement.

Schoettmer declined that offer, and in September 2009, he retained legal counsel. Efforts to negotiate an acceptable settlement failed, and on October 6, 2010, Scho-ettmer sued Wright and South Central for personal injury damages. His wife, Karen Schoettmer, also brought claims against both defendants for loss of consortium. Defendants answered the complaint on November 29, but on February 3, 2011, they moved to amend their answer to assert an affirmative defense: South Central is a community action agency and thus a political subdivision governed by the Indiana Tort Claims Act, and the Schoett-mers failed to comply with the ITCA notice requirement. On April 12, 2011, defendants moved for summary judgment on that ground. Both in a written response to the motion and at a hearing on it, the Schoettmers identified three issues of material fact:

First, did the Plaintiffs substantially comply with the requirements of the Tort Claims Act? Second, did the Defendants[’] failure to timely raise the defense of Plaintiffs!?] alleged noncompliance act as a waiver? Three, did the actions and representations of the Defendant and its agents rise to the level that Defendant should be estoppe[d] from asserting Plaintiffs!?] alleged noncompliance?

Tr. at 17. The trial court ultimately granted summary judgment in the defendants’ favor.

The Schoettmers appealed, raising the same arguments they brought up in the trial court. A divided panel of our Court of Appeals rejected all of these arguments and affirmed the trial court. Schoettmer v. Wright, 971 N.E.2d 118, 120 (Ind.Ct.App.2012). Judge Crone dissented, believing “South Central should be estopped from asserting the Schoettmers’ noncompliance with the ITCA.” Id. at 126 (Crone, J., dissenting).

We granted transfer. Schoettmer v. Wright, 977 N.E.2d 353 (Ind.2012) (table); Ind. Appellate Rule 58(A).

Standard of Review

Summary judgment is appropriate only when the moving party shows there are no genuine issues of material fact for trial and he is entitled to judgment as a matter of law. Haegert v. Univ. of Evansville, 977 N.E.2d 924, 936 (Ind.2012); see also Ind. Trial Rule 56(C). Once that showing is made, the burden shifts to the non-moving party to rebut. Town of Avon v. W. Cent. Conservancy Dist., 957 N.E.2d 598, 602 (Ind.2011). When ruling on the motion, the trial court construes all evidence and resolves all doubts in favor of the non-moving party. Id. We review the trial court’s grant of summary judgment de novo, Woodruff v. Ind. Family & Soc. Servs. Admin., 964 N.E.2d 784, 790 (Ind.2012), cert. denied, — U.S. -, 133 S.Ct. 233, 184 L.Ed.2d 44 (2012), taking care to ensure that no party is denied his day in court. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 974 (Ind.2001).

This Case Is Not Ripe for Summary Judgment.

The Indiana Tort Claims Act provides that a tort claim against a government entity is barred unless the claimant provides the entity with notice of the claim within 180 days of the loss. Ind. Code § 34-13-3-8 (2008). The notice “must describe in a short and plain statement the facts on which the claim is based,” including “the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, the amount of the damages sought, and the residence of the person making the claim at the time of the loss and at the time of filing the notice.” Ind. Code § 34-13-3-10 (2008). This requirement is intended to ensure that government entities have the opportunity to investigate the incident giving rise to the claim and prepare a defense. Galbreath v. City of Indianapolis, 253 Ind. 472, 477, 255 N.E.2d 225, 228 (1970). “Like any statute in derogation of the common law, the ITCA ‘must be strictly construed against limitations on the claimant’s right to bring suit.’ ” City of Indianapolis v. Buschman, 988 N.E.2d 791, 794 (Ind.2013) (quoting Hinshaw v. Bd. of Comm’rs of Jay Cnty., 611 N.E.2d 637, 639 (Ind.1993)). And as we have said before, so long as its essential purpose has been satisfied, it should not function as “a trap for the unwary.” Galbreath, 253 Ind. at 480, 255 N.E.2d at 229.

Here, the Schoettmers acknowledge they failed strictly to comply with the ITCA notice requirement, but they raise four theories under which their claim might proceed anyway. First, they argue South Central waived its ITCA notice defense by failing to raise it in a timely fashion. Second, they suggest their cooperation with Cincinnati Insurance constituted substantial compliance with the notice requirement. Third, they argue Cincinnati Insurance acted as South Central’s constructive agent such that notice to Cincinnati Insurance operated as notice to South Central. Finally, they assert that even if South Central had no notice of their tort claim, the equitable principle of estoppel nevertheless should apply to bar its ITCA notice defense.

I. South Central Did Not Waive Its ITCA Notice Defense.

As a threshold matter, the Schoett-mers contend South Central waived its ITCA notice defense by failing to raise it in its original answer. We previously have said this defense is waived if not “asserted in a responsive pleading.” Thompson v. City of Aurora, 263 Ind. 187, 190, 325 N.E.2d 839, 841 (1975). An answer is a responsive pleading, and our trial rules permit a party to amend his pleading by leave of court, which should be granted “when justice so requires.” Ind. Trial Rule 15(A). Absent prejudice to the non-moving party, we have said that such amendments “should be liberally allowed.” Templin v. Fobes, 617 N.E.2d 541, 543 (Ind.1993). Indeed, our Court of Appeals has found no abuse of discretion where a trial court permitted a defendant to amend its answer to assert an ITCA notice defense as long as eighteen months after the original answer was filed because the plaintiffs failed to show the amendment caused them undue prejudice. Fowler v. Brewer, 773 N.E.2d 858, 862-63 (Ind.Ct.App.2002), trans. denied.

South Central filed its original answer on November 29, 2010, and moved for leave to amend that answer on February 3, 2011. The Schoettmers apparently did not object to that motion, and the trial court granted it on March 23. In their appellate brief, the Schoettmers do not specify how the amendment prejudiced them except to say they did not know South Central was covered under the ITCA until it filed its amended answer. But even if South Central had asserted its ITCA notice defense in its original answer, it is unclear how the Schoettmers’ position would be any different. The accident occurred on November 24, 2008. Under the ITCA, the Schoett-mers had 180 days — until Monday, May 25, 2009 — to file their notice. That deadline had long expired by the time South Central filed its original answer on November 29, 2010. The Schoettmers have not shown they suffered undue prejudice; thus, we find the trial court did not abuse its discretion by permitting the amendment, and we conclude South Central has not waived its ITCA notice defense. We therefore turn to the Schoettmers’ remaining arguments on appeal.

II. Notice to Cincinnati Insurance Did Not Constitute Substantial Compliance with the ITCA Notice Requirement.

The Schoettmers argue their communications with Cincinnati Insurance satisfied the purpose of the ITCA notice requirement such that the trial court should have found they substantially complied with that requirement. We disagree.

“Substantial compliance with the statutory notice requirements is sufficient when the purpose of the notice requirement is satisfied.” Ind. State Highway Comm’n v. Morris, 528 N.E.2d 468, 471 (Ind.1988). “The purposes of the notice statute include informing the officials of the political subdivision with reasonable certainty of the accident and surrounding circumstances so that [the] political [subdivision may investigate, determine its possible liability, and prepare a defense to the claim.” Id. “What constitutes substantial compliance, while not a question of fact but one of law, is a fact-sensitive determination.” Collier v. Prater, 544 N.E.2d 497, 499 (Ind.1989). “The crucial consideration is whether the notice supplied by the claimant of his intent to take legal action contains sufficient information for the city to ascertain the full nature of the claim against it so that it can determine its liability and prepare a defense.” Id. at 500. But “mere actual knowledge of an occurrence, even when coupled with routine investigation, does not constitute substantial compliance.” Morris, 528 N.E.2d at 470.

Different panels of our Court of Appeals have reached varying conclusions as to whether a plaintiffs notice to a defendant’s insurer constitutes substantial compliance with the ITCA. In City of Tipton v. Baxter, 593 N.E.2d 1280 (Ind.Ct.App.1992), for example, the plaintiff was a passenger in a vehicle hit by a City-owned truck. Id. at 1280. Although he did not provide written notice of his claim to any City official or department, the panel noted that the City’s insurer “had actual knowledge of the accident several days after it happened, conducted an investigation, and indicated a willingness to settle.” Id. at 1283. It was also significant, the panel stated, that the insurance examiner “admitted he knew the date the accident occurred, the identities of the claimant ... and the truck driver for the City, and that there had been personal injuries,” “had information concerning the vehicles involved in the accident, the location where the accident occurred, the phone number and address where the [plaintiff] could be reached, and information concerning the extent of the injuries” as well as a copy of a statement the plaintiff gave to an insurance investigator. Id. Taken together, the panel concluded, all of this information added up to substantial compliance. Id.

On the other hand, in Brown v. Alexander, 876 N.E.2d 376 (Ind.Ct.App.2007), trans. denied, the plaintiff driver was injured when a city utility truck trailer detached and collided with her vehicle. Id. at 378. The truck driver informed the city’s insurer of the accident, and a claims representative attempted to contact the plaintiff, who was variously unavailable, uncooperative, and uncommunicative until she filed a personal injury lawsuit—seventeen days before the statute of limitations was due to expire. Id. at 378-79. The panel noted that while the utility “knew about the accident it had none of the financial details required to settle the claim” and concluded “we cannot find substantial compliance when the claimant took no steps whatsoever to comply with the notice statute.” Id. at 383; see also Hasty v. Floyd Mem’l Hosp., 612 N.E.2d 119, 123 (Ind.Ct.App.1992) (finding notice to hospital’s insurer did not substantially comply with ITCA notice requirement); Fowler, 773 N.E.2d at 865 (finding notice to fire department’s insurer did not substantially comply with ITCA notice requirement, even where fire department had actual knowledge of the claim).

On balance, we agree with the Brown panel and decline to find substantial compliance where, as here, the claimant communicated only with the insurer and “took no steps whatsoever to comply with the notice statute.” We recognize that it may be desirable to encourage potential claimants to work with insurers to settle claims rather than proceed directly to litigation, and we acknowledge that our conclusion today may tend to encourage the opposite. We are confident, however, that such policy considerations will be addressed in the proper forum: the General Assembly.

III. Cincinnati Insurance Is Not South Central’s Agent for the Purpose of Notice of Tort Claims.

The Schoettmers also contend that by purchasing liability coverage from Cincinnati Insurance, South Central effectively appointed Cincinnati Insurance as its agent for the purpose of settling Scho-ettmer’s claim, and thus notice to the insurer should be deemed notice to the insured. Again, we disagree.

The Schoettmers cite no section of the Tort Claim Act, and the Court finds none, providing that a governmental entity’s insurer is the entity’s agent for the purpose of receiving tort claim notices. Ind.Code § 34-13-3-20(a) authorizes the entity to purchase liability insurance if it wishes to do so, but it says nothing about agency or notice. Ind.Code § 34-13-3-20(a) (2008 & Supp.2012). The General Assembly has demonstrated a clear ability to draft statutes regarding agency for notice purposes when it wishes to do so. See, e.g., Ind. Code §§ 27-8-1-13 (2012) (requiring life insurance companies incorporated outside Indiana to appoint an individual or corporate resident of Indiana “or an authorized Indiana insurer as its agent ... upon whom service of process ... may be made”); 27-11-9-1 (2012) (imposing the same requirement on fraternal business societies authorized to do business in Indiana). As it has not done so here, we will presume it did not intend for such an agency relationship to be part of the ITCA, and we will apply the statute in accordance with that intent.

IV. Genuine Issues of Material Fact Remain as to Whether South Central Should Be Estopped from Asserting Its ITCA Notice Defense.

Finally, the Schoettmers argue equitable estoppel should apply to bar South Central from raising its ITCA notice defense because the Schoettmers were unaware South Central was a government entity covered by the ITCA. The trial court found this argument failed as a matter of law. We believe that conclusion is premature.

“The party claiming equitable estoppel must show its ‘(1) lack of knowledge and of the means of knowledge as to the facts in question, (2) reliance upon the conduct of the party estopped, and (3) action based thereon of such a character as to change his position prejudicially.’ ” Story Bed & Breakfast LLP v. Brown Cnty. Area Plan Comm’n, 819 N.E.2d 55, 67 (Ind.2004) (quoting City of Crown Point v. Lake Cnty., 510 N.E.2d 684, 687 (Ind.1987)). Equitable estoppel will not apply against the State unless there is “clear evidence that its agents made representations upon which the party asserting es-toppel relied.” Id. The burden to produce that evidence rests upon the party claiming estoppel. Id.

Here, the Schoettmers have presented evidence that they did not know South Central was a statutorily designated community action program and thus a political subdivision ■ subject to the ITCA until South Central asserted its ITCA notice defense in its amended complaint. John Schoettmer executed an affidavit stating neither the Cincinnati Insurance agent nor the defendants ever gave him any reason to believe South Central was covered by the ITCA and his claim might be time-barred unless he complied with its notice requirements. Neither the written correspondence Schoettmer received from Cincinnati Insurance nor the telephone conversations he had with its agent contain any mention of the ITCA or the 180-day time limit.

There is also evidence that Schoettmer relied on the agent’s conduct and representations. Schoettmer’s affidavit states that on at least two occasions, the agent told him it would be in his best interest to wait until all his medical treatments were complete before settling his claim. The agent’s notes from her February 2, 2009, telephone conversation with Schoettmer corroborate the affidavit; she noted she told Schoettmer “it would be in his best interest to wait until he is released from treatment” to settle his claim. Appellants’ App. at 78.

Finally, there is evidence that Schoett-mer failed to act because of his reliance on the Cincinnati Insurance agent’s representations. He worked with the agent; he provided a recorded statement on January 12, 2009 and signed a release providing her access to his medical records and bills on April 22, 2009. Nevertheless, he did not receive a settlement offer until August 20, 2009 — nearly three months after the 180-day ITCA time limit had expired. Thus, we are inclined to agree with Judge Crone that “the designated evidence reveals that genuine issues of material fact remain, and the Schoettmers should be allowed to present proof of estoppel to the trial court.” Schoettmer, 971 N.E.2d at 127 (Crone, J., dissenting) (citing Delaware Cnty. v. Powell, 272 Ind. 82, 85, 393 N.E.2d 190, 192 (1979)).

Conclusion

We therefore reverse the trial court’s grant of summary judgment in the defendants’ favor as to the adequacy of the Schoettmers’ tort claim notice and remand this case for further proceedings consistent with our opinion.

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

      . Both parties agree that at the time of the accident, Wright was acting within the scope of her employment.

      . The Schoettmers raised a fourth argument in the hearing and on appeal: because Cincinnati Insurance acted as South Central's agent for the purpose of resolving Schoett-mer’s claim, notice to Cincinnati Insurance should have operated as notice to South Central.

      . The 180th day actually would have been Saturday, May 23, 2009, but as that was a weekend day, we count forward to the next working day. Ind. Trial Rule 6(A).