author: CRONE, Judge. ROBB, Chief Judge,

text:
    GARED HOLDINGS, LLC, Appellant-Plaintiff/Counterdefendant, v. BEST BOLT PRODUCTS, INC., Appellee-Defendant/Counterclaimant.
    No. 49A02-1210-PL-811.
    Court of Appeals of Indiana.
    July 23, 2013.
    Rehearing Denied Sept. 13, 2013.

      Jeffrey O. Meunier, Carmel, IN, Attorney for Appellant.
    S. Gregory Zubek, Whitham Hebenstreit & Zubek LLP, Indianapolis, IN, Attorney for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Gared Holdings, LLC (“Gared”), approached Best Bolt, Products, Inc. (“Best Bolt”), to see whether Best Bolt could supply pulleys for use in basketball goal systems that Gared manufactures. Gared provided Best Bolt with samples of the pulleys that it had been using, but also indicated that there were problems with those pulleys. Gared did not provide detailed specifications to Best Bolt and did not specifically request a lubricated bushing, a cylindrical part that fits between the wheel and axle to reduce friction. Best Bolt produced some samples, and Gared had some testing performed on the pulleys, but did not discover that the pulleys lacked a lubricated bushing. The lack of lubrication caused the pulleys to seize up soon after the basketball goals were sold.

Gared sued Best Bolt on several theories, including breach of contract, breach of the implied warranty of fitness for a particular purpose, and breach of the implied warranty of merchantability. Best Bolt filed a counterclaim seeking payment for a second order of pulleys and an order of clevis pins, which Gared had refused to accept. The trial court ruled in Best Bolt’s favor on each of Gared’s claims and on Best Bolt’s counterclaim. Gared now appeals.

Gared had argued that the parties’ contract required Best Bolt to replicate the samples that Gared provided to Best Bolt, and the trial court rejected that argument. The evidence favorable to the judgment reflects that Gared informed Best Bolt that it was having problems with the pulleys that it was using at the time. From this, it is reasonable to infer that Gared did not want or expect duplicates of the sample pulleys. Regarding the warranty of fitness for a particular purpose, the trial court found that Gared had not established that it relied on Best Bolt’s skill or judgment in producing a pulley that was appropriate for use in the basketball goal systems. The evidence favorable to the judgment reflects that Gared was aware that the pulleys should have a lubricated bushing and simply assumed that Best Bolt would include one in its design. We conclude that the evidence supports the trial court’s judgment on these two issues.

The trial court concluded that the warranty of merchantability did not apply because Best Bolt was not a merchant of pulleys. The trial court found that Best Bolt was a distributor rather than a manufacturer and had made only one sale of pulleys. We conclude that the fact that Best Bolt was not a manufacturer is not relevant to the issue of whether it was a merchant. Also, the undisputed evidence shows that Best Bolt made two sales of pulleys and was willing to continue selling pulleys. We conclude that these facts indicate that Best Bolt is a merchant with a relatively new product rather than a non-merchant seller making an isolated sale. Because the evidence is in conflict and the trial court did not reach the issue, we remand for the trial court to determine whether Best Bolt breached the warranty of merchantability. Depending on the trial court’s resolution of this issue, it may also be necessary to reconsider the ruling on Best Bolt’s counterclaim. Therefore, we affirm in part and remand.

Facts and Procedural History

Best Bolt primarily sells fasteners, such as “bolts, nuts and screws and miscellaneous hardware items.” Tr. at 115. Best Bolt is a distributor; it does not manufacture the products that it sells. Sometime in 2006, Curtis Sparks, a salesman for Best Bolt, noticed that Gared had playground equipment outside its facility and thought that Gared could be a potential customer. Sparks stopped in and introduced himself. He was directed to Lori Turner, a purchasing manager who is responsible for ordering parts that Gared uses in the products that they manufacture. Sparks began stopping in every four weeks in hopes of establishing a business relationship with Gared. Gared eventually placed orders for cable clamps, clevis pins, and D rings.

At issue in this case are two orders that Gared placed for pulleys. Gared uses pulleys in the basketball goal systems that it manufactures. The basketball goals are designed to hang from the ceiling and can be raised and lowered. The facts favorable to the judgment reflect that, during one of Sparks’s regular sales calls in 2006, Turner asked him if Best Bolt could supply pulleys. Turner indicated that their current supplier, Inventory Sales, was going to raise the price, and she was hoping to find a less expensive pulley. Turner also indicated that there was a problem with cables slipping off the wheel and becoming lodged between the wheel and the side plate. Turner provided samples pulleys in two sizes, # 3 and # 5. Sparks told Turner, “I’ll see what I can do.” Id. at 129. Sparks did not tell Turner that neither he personally nor Best Bolt generally had ever sold pulleys before.

Sparks requested a drawing, but Turner indicated that they did not have one. Gared did not provide detailed specifications for the pulleys, but did indicate that the # 5 pulleys needed to be rated at 1550 pounds, withstand a standard pull test of 8000 pounds, and withstand a side pull test of 5000 pounds. At some point during the design process, Gared also requested that the pulleys be fastened together with ny-locks rather than rivets.

Best Bolt decided to source the pulleys through Dakota Engineering, which would manufacture the pulleys in China. The sample pulleys from Gared were sent to Dakota’s engineer in China, who sent back a sample. Joe Connerly, the engineering manager for Gared, examined the samples, measured the diameter, and looked for a proper gap between the wheel and side plate. He did not take the samples apart because they “appeared to be correct.” Id. at 191. Although he could not tell for sure without taking the pulley apart, he believed that the pulley contained a lubricated bushing because there was a small gap on each side of the wheel between the wheel and the side plate. However, the sample pulleys did not actually have a bushing.

Gared then sent the samples to St. Louis Labs, which performed the standard pull and side pull tests. The standard pull test involves pulling down on the pulley to see how much weight it takes to destroy the pulley. The side pull test is designed to determine how much force it takes to pull the pulley apart from the sides. The sample pulleys exceeded the minimum requirements that Gared had set for each test.

On June 27, 2007, after receiving the test results, Turner placed an order with Best Bolt for 4995 # 5 pulleys. On April 14, 2008, Turner placed an order for 2000 # 3 pulleys and an additional 5000 # 5 pulleys. The purchase order requested that Best Bolt send samples of each for testing, although it is unclear whether Best Bolt sent the samples and, if so, whether Gared had any testing done.

In the fall of 2008, one of Gared’s customers reported that a basketball goal had fallen part way to the floor. Connerly examined the goal system and determined that the pulley had stopped turning. Because the pulley was not moving with the cable, the cable eventually became frayed and snapped. Connerly took the pulley apart and realized for the first time that the pulley did not have a bushing and was not lubricated in any way. Without any lubrication, the wheel and axle had become “frozen” together. Id. at 194. Connerly conducted a cycling test on two Best Bolt pulleys, which involves repeatedly lifting and lowering a load. The pulleys each seized up after twenty-one cycles.

Gared contacted Best Bolt about the problem, and Best Bolt proposed applying a spray lubricant to the pulleys. Connerly felt that this solution was inadequate because there was no guarantee that the spray could be accurately applied to the axle, the spray would likely need to be applied repeatedly, and the process would require a lot of manpower. Gared wanted Best Bolt to accept the return of the unused pulleys and pay for the replacement of the pulleys that had been already been used, but Best Bolt refused. Concerned that the basketball goal systems incorporating the Best Bolt pulley posed a safety hazard, Gared decided to replace the pulleys with a more expensive pulley manufactured by Block Division (“Block”). Gared refused to pay for the second order of Best Bolt pulleys and also refused delivery of an order of clevis pins.

On September 10, 2009, Gared filed a complaint against Best Bolt stating five claims: breach of contract, breach of the implied warranty of merchantability, breach of the implied warranty of fitness for a particular purpose, breach of express warranty, and fraud. On November 4, 2009, Best Bolt filed an answer and a counterclaim seeking payment for the second order of pulleys and the clevis pins.

A bench trial was held on June 5 through 7, 2012.' It was undisputed that Gared did not specifically request that the pulley have a lubricated bushing. However, Gared attempted to show that a lubricated bushing was a standard or essential component of a pulley, and therefore a buyer would not typically need to make a specific request for a lubricated bushing. Connerly testified that he considered pulleys to be an “off-the-shelf’ item that could be purchased from a catalog without needing to provide a drawing. He testified that a buyer would not have to specify that it have a lubricated bushing or bearing because “[tjhat’s standard in the industry.” Id. at 189. Connerly stated that the pulleys that Gared has purchased from suppliers other than Best Bolt have all had lubricated bushings and did not have problems with seizing up. Connerly testified that a pulley without a lubricated bushing could work only “[f]or a short period of time,” but not for the “expected life of the ... pulley.” Id. at 190. He stated that the Best Bolt pulleys started failing less than a year after the basketball goal systems were sold, and he would expect a pulley to last more than a year. Connerly testified that he had not opted to perform a cycle test on the pulleys before approving them for purchase because “the pulleys that ... are normally manufactured ... it’s a requirement of that pulley to be able to rotate. So when you purchase a pulley you expect it to be able to rotate and it was really no reason to do a cycle test at that point in time.” Id. at 188. After the problem arose with the Best Bolt pulleys, Connerly made a detailed drawing of a pulley “so that if we chose to go to ... another supplier who was not a normal manufacturer of pulley[s] they would understand the requirements of manufacturing a pulley.” Id. at 200. However, when Gared started purchasing pulleys from Block, it did not provide the drawing to Block because Block had its own drawing.

Turner likewise testified that the pulleys that Gared had purchased from other manufacturers all had lubricated bushings. She said that at the time that she started ordering from Best Bolt, Gared did not have a specification sheet for the # 5 pulley -because “it was a standard item. There was nothing custom about it....” Id. at 52. She did not think that it was necessary to specify that the pulleys needed to have a lubricated bushing because they were an off-the-shelf item and always have a lubricated bushing.

Kevin Needier, the operations manager of Gared, also characterized pulleys as an off-the-shelf part. Needier also testified that the pulleys that Gared had purchased from other manufacturers all had lubricated bushings. He stated that Gared had not had to ask Inventory Sales or Block to provide a lubricated bushing.

Gared also presented testimony from Bobby Day, the president of Block. Day has a B.S. degree in engineering and has designed a pulley. Day testified that he did not ask Gared to supply a drawing and that Block’s customers typically rely on its catalog. He characterized the pulley that Block sells to Gared as an off-the-shelf product. While he agreed that it would be good practice to give a manufacturer a set of requirements, he did not think that a pulley should be made without a lubricated bushing regardless of what the requirements were. Day opined that the Best Bolt pulley was “doomed to failure” because the friction between the metal parts would eventually “cause the effect known as galling where the metal will grab to the metal and finally it will just completely seize.” Id. at 273-74. Day testified that he is not aware of any manufacturer that makes a pulley without a lubricated bushing and that it would not be good engineering or manufacturing practice to do so.

Alan Jones, the president of Dakota, testified that he knew that the pulleys would bear a dynamic (moving) load. He acknowledged that the pulleys had failed due to galling between the wheel and axle, and the problem could have been prevented by a lubricated bushing. Jones is not an engineer, and he stated that he would not disagree with Day’s testimony that a lubricated bushing is an essential component of a pulley. However, he also testified that they did not receive drawings or specifications, that “every other product we sell is made to a specification,” and that it “is very uncommon to typical engineering business — to just have an unknown sample.” Id. at 338.

Dustin Hostetler, the quality manager of Best Bolt, testified that he knew that “if you had metal on metal it could fail,” and that the purpose of a bushing would be to prevent that problem.' Id. at 361. He was not aware that the pulleys lacked a bushing until Gared started having problems with the pulleys. However, he also testified that Best Bolt normally had prints and standards for the items that it sells.

Best Bolt presented expert testimony from Peter Hylton, an associate professor in the School of Engineering and Technology at Indiana University Purdue University Indianapolis. Hylton testified that he had never designed a pulley, but if he were asked to do so, he would want to know the specifications, such as dimensions and material properties. In the absence of specifications, he would want to know the “requirements,” which he defined as “the set of operating characteristics under which the component or the assembly or subas-sembly whatever you’re discussing will be operating that defines what it must be able to do — withstand, that sort of thing.” Id. at 451-52.

Hylton agreed that the Best Bolt pulleys had failed due to galling between the wheel and axle. He also agreed that it is not possible to tell that the pulleys are not lubricated without taking them apart. When asked if dynamic testing of the pulleys would have been appropriate, he said, “I would’ve thought it would’ve been mandatory.” Id. at 476.

Hylton testified that he had done some research on the internet and found one supplier that sold pulleys that could be ordered with or without bushings. He also stated that he has his students conduct a laboratory experiment involving pulleys, and those pulleys do not have bushings. He testified that “under certain load— static load or ... very low dynamic loads a non[-]bushed pulley could work just as well as a bushed pulley.” Id. at 509.

Gared voluntarily dismissed its fraud claim during the bench trial. On September 21, 2012, the trial court entered a judgment for Best Bolt on Gared’s remaining claims and on Best Bolt’s counterclaim. The court’s order included findings of fact and conclusions thereon. As to Gared’s breach of contract claim, the court’s order states:

The Court finds that the facts do not establish that there was an oral contract for the sale of pulleys which matched the samples provided by Turner to Sparks.... Turner and Sparks nor any other representative of either company agreed that they would provide pulleys identical to the samples furnished by Turner. In fact, Best Bolt furnished samples of what it “could do.” Gared agreed that [it] would complete [its] own inspection and testing on the samples provided by Best Bolt, as required by Gared policy.... [I]t was established that Best Bolt would provide samples of what it could supply at a cost that Gared would pay, and Gared would do its own inspection and testing to determine if the Best Bolt pulleys would work for Gared in its basketball systems.

Appellant’s App. at 17-18.

As to Gared’s claim for breach of the warranty of merchantability, the court’s order states: “The evidence demonstrated that this was the first and last sale of pulleys by Best Bolt. In fact Best Bolt was merely the distributor and Gared was aware that Best Bolt was trying to find a company to manufacture the pulleys at a price acceptable to Gared.” Id. at 20.

As to Gared’s claim for breach of the warranty of fitness for a particular purpose, the court’s order noted that Gared was required to prove three things: (1) that Best Bolt had reason to know of Gared’s particular purpose; (2) that Best Bolt had reason to believe that Gared was relying on Best Bolt’s skill and judgment; and (3) that Gared in fact had relied on Best Bolt’s skill and judgment. The court found that Best Bolt knew that the pulleys would be used in basketball goal systems. However, the court found that the evidence was unclear as to the second element and that Gared had not established the third element. The trial court also rejected Gared’s claim for breach of express warranty. Having rejected all of Gared’s claims, the trial court found that Gared was not justified in rejecting the second order of pulleys and the order of clevis pins and therefore entered judgment for Best Bolt on Best Bolt’s counterclaim. Gared now appeals.

Discussion and Decision

The trial court issued findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A). Our standard of review is well-settled:

First, we must determine whether the evidence supports the trial court’s findings of fact. Second, we must determine whether those findings of fact support the trial court’s conclusions of law. We will set aside the findings only if they are clearly erroneous. Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference. A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts.
In applying this standard, we neither reweigh the evidence nor judge the credibility of the witnesses. Rather, we consider the evidence that supports the judgment and the reasonable inferences to be drawn therefrom. To make a determination that a finding or conclusion is clearly erroneous, our review of the evidence must leave us with the firm conviction that a mistake has been made.

Hartley v. Hartley, 862 N.E.2d 274, 281 (Ind.Ct.App.2007) (quoting Gregg v. Cooper, 812 N.E.2d 210, 214-15 (Ind.Ct.App. 2004), trans. denied).

Gared argues that the trial court’s findings regarding Gared’s claims for breach of contract, breach of the implied warranty of fitness for a particular purpose, and breach of the implied warranty of merchantability are erroneous. Gared also argues that it had a proper basis for rejecting the second order of # 5 pulleys and that the court therefore erred in its ruling on Best Bolt’s counterclaim insofar as Gared was ordered to pay for the # 5 pulleys.

I. Breach of Contract

“The elements of a breach of contract action are the existence of a contract, the defendant’s breach thereof, and damages.” Murat Temple Ass’n v. Live Nation Worldwide, Inc., 953 N.E.2d 1125, 1128-29 (Ind.Ct.App.2011), trans. denied. Gared was required to prove these elements by a preponderance of the evidence. Rollins Burdick Hunter of Utah, Inc. v. Bd. ofTrs. of Ball State Univ., 665 N.E.2d 914, 922 (Ind.Ct.App.1996).

Gared does not dispute that it did not provide detailed specifications to Best Bolt and did not specifically request a lubricated bushing. Gared argues, however, that the parties’ agreement required Best Bolt to match the samples that Gared provided.

Sparks testified that Turner approached him about providing pulleys:
A. Well, what happened whenever she asked me about pulleys she had a problem with pulleys she was using where the wire rope had slipped out of the pulley and lodged between the side and wheel. She said, I got a problem — she said I don’t need this. So she said, can you take of this — can you find me a source. And I said, yes I think we can find you a source.
Q. And she gave you [a] sample, didn’t she?
A. Yes she did.
Q. And she told you that’s what she needed, didn’t she?
A. No, she didn’t tell me anything like that.
Q. Okay what did she tell when she gave me the sample?
A. She asked me to see what I could do.

Tr. at 118.

While Gared employees denied that there was a problem with the Inventory Sales pulleys that they had been using at the time, the trial court rejected this testimony and found that Gared “wanted to locate a new pulley vendor due to price and quality problems with the current vendor.” Appellant’s App. at 10. This finding is supported by Sparks’s testimony.

Gared faults the trial court for finding that the agreement merely required Best Bolt to produce a sample within Gared’s price range and that Gared would do its own testing to determine whether the pulleys would be suitable for use in its basketball goal systems. Gared notes that the testing that was performed was to determine the strength of the pulley and was not designed to reveal whether the pulley was properly lubricated. Even if we were to conclude that the trial court improperly relied on the testing that Gared had performed on the pulleys, that still does not alter the trial court’s valid finding that Gared was having problems with the Inventory Sales pulleys. From that fact, it is reasonable to conclude that Gared did not want or expect Best Bolt to replicate the Inventory Sales pulley. Gared’s argument is a request to reweigh the evidence, which we will not do.

II. Implied Warranty of Fitness for a Particular Purpose

Indiana’s version of the Uniform Commercial Code provides:

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is, unless excluded or modified under IC 26-1-2-316, an implied warranty that the goods shall be fit for such purpose.

Ind.Code § 26-1-2-315. The implied warranty of merchantability is imposed by operation of law for the protection of the buyer, and it must be liberally construed in favor of the buyer. Woodruff v. Clark Cnty. Farm Bureau Coop. Ass’n, 153 Ind. App. 31, 43, 286 N.E.2d 188, 194-95 (1972).

In an action for breach of the warranty of fitness for a. particular purpose, the buyer must show: “(1) that seller must have had reason to know buyer’s particular purpose, (2) that seller must have had reason to believe buyer was relying on seller’s skill and judgment, and (3) that buyer in fact had relied on seller’s skill and judgment.” Paper Mfrs. Co. v. Rescuers, Inc., 60 F.Supp.2d 869, 881 (N.D.Ind.1999). The trial court found that Gared proved the first element, that the evidence was unclear as to the second element, and that Gared had not proven the third element by a preponderance of the evidence.

On cross-examination, Connerly was questioned about whether Gared relied on Best Bolt’s judgment:

Q. 'Knowing that your standard operating procedure was to check specifications and|7]or a drawing and[/]or a narrative and based upon your testimony that you did that in this case and that you tested ... the pulleys the way you wanted and that you inspected them the way that you wanted to, isn’t it a fact that you were not relying on Best Bolt’s judgment as to what Gared needed for this Number Five (# 5) pulley?
A. That would be correct.
Q. ■ Would you agree that Best Bolt never advised Gared that the Best Bolt pulley would do whatever it was that Gared required?
A. Not to my knowledge.
Q. In fact Gared made its own independent analysis that the pulleys would meet its requirements, isn’t that right?
A. That’s correct.

Tr. at 240, 243.

On redirect, Connerly testified as follows:

Q. [D]id you ever have any expectation that the Best Bolt pulleys would not have a lubricated bearing?
A. No.
Q. Or a bushing?
A. No.
Q. [D]id you rely on them to provide that?
A. Yes.

Id. at 254-55.

Connerly initially testified that Gared did not rely on Best Bolt’s judgment, and while he later stated that he relied on Best Bolt to provide a lubricated bushing, it is clear from his testimony as a whole that he knew that the pulley needed to have a lubricated bushing and assumed that Best Bolt would know that, too. Gared again notes that the testing that was performed on the pulleys was not designed to show whether the pulley was properly lubricated. However, the evidence reflects that Gared determined what testing would be performed and did not rely on Best Bolt to perform any testing. The drawing that Connerly later produced demonstrates that Gared knew what it needed in a pulley and was capable of specifying its needs; Gared simply failed to do so. See Adsit Co. v. Gustin, 874 N.E.2d 1018, 1024-25 (Ind.Ct.App.2007) (seller of vehicle seat covers did not breach warranty of merchantability by supplying seat covers that did not match interior of vehicle where buyer did not provide vehicle’s VIN number or other information that would enable seller to determine the exact color needed). The evidence favorable to the judgment supports the trial court’s conclusion that Gared failed to establish that it relied on Best Bolt’s judgment to select a suitable pulley.

III. Implied Warranty of Merchantability

The trial court ruled that the implied warranty of merchantability did not apply because Best Bolt is not a merchant as that term is defined by Indiana’s version of the Uniform Commercial Code. Indiana Code Section 26-1-2-314(1) provides: “Unless excluded or modified (IC 26-1-2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.” The comments to this section state, “A person making an isolated sale of goods is not a ‘merchant’ within the meaning of the full scope of this section and, thus, no warranty of merchantability would apply.” Ind. Code § 26-1-2-314, cmt. 3. Indiana Code Section 26-1-2-104 defines a “merchant” as “a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction.” The comments to this section state that, in the context of the implied warranty of merchantability, the term “merchant” is restricted “to a much smaller group than everyone who is engaged in business and requires a professional status as to particular kinds of goods.” Ind.Code § 26-1-2-104, cmt. 2. At the same time, our cases hold that the implied warranty of merchantability “is imposed by operation of law for the protection of the buyer and must be liberally construed in favor of the buyer.” Frantz v. Cantrell, 711 N.E.2d 856, 859 (Ind.Ct. App.1999).

Regarding Gared’s claim for breach of the warranty of merchantability, the court’s order states: “The evidence demonstrated that this was the first and last sale of pulleys by Best Bolt. In fact Best Bolt was merely the distributor and Gared was aware that Best Bolt was trying to find a company to manufacture the pulleys at a price acceptable to Gared.” Appellant’s App. at 20. The term “merchant” is not limited to manufacturers, and Best Bolt does not cite any authority that supports the proposition that a distributor cannot be a merchant. Furthermore, the court’s order is incorrect insofar as it states that Best Bolt made only one sale of pulleys. Best Bolt made two sales to Gared, and we also note that Best Bolt’s vice president testified that Best Bolt would be willing to continue selling pulleys if it had a buyer.

Gared argues that if the trial court’s “interpretation of the definition of ‘merchant’ is accepted then .a seller such as Defendant which sells a wide variety of industrial products would get a free pass on its first sale of any. item that it sold.” Appellant’s Br. at 13. Although the number or frequency of sales surely is relevant to the question of whether a seller is a merchant, we are inclined to agree that a small number of sales is not necessarily conclusive proof that the seller is not a merchant; rather, it could be indicative that the seller simply has a relatively new product or a limited market for a particular product.

Gared argues that this case is similar to Frantz. In that case, a homeowner sued Joseph Frantz and Frantz Lumber Company over defective shingles that were installed on his roof. The opinion treats Frantz and the lumber company as a single entity, although the opinion is somewhat vague as to their relationship and the lumber company’s role in • the work that was performed on the roof. However, the ultimate holding appears to be that the lumber company was found to be a merchant of shingles because it represented that it sold “all kinds of building material” and appeared knowledgeable about roofing materials. Frantz, 711 N.E.2d at 859. Similarly, Best Bolt sold a variety of hardware products, and pulleys are in the same general line of business. On the other hand, Frantz does not shed much light on the issue of whether a seller who has made only a few sales of a product may be considered a merchant.

Frantz is one of only a few Indiana cases to discuss the meaning of the term merchant; therefore, we find it helpful to look to cases from other jurisdictions that have addressed the issue. One commentator states:

A single, isolated transaction is not enough to establish that a merchant deals in goods of that kind, but one can be found to be a merchant for this purpose if he customarily sells a general line of goods related to the item in question, even though that specific item is being sold for the first time.

Hawkland’s Uniform Commercial Code Series § 2-814:2 (West 2012) (footnotes omitted). Wood Products v. CMI Corp., 651 F.Supp. 641 (D.Md.1986), is cited in support.

Wood Products concerned a furnace that was originally designed by James Angelo to convert sawdust and other wood waste products into charcoal. CMI Corporation obtained the rights to manufacture the Angelo furnace and sold one to Wood Products, a company primarily engaged in milling and selling lumber. CMI altered the design of the furnace to incorporate a larger drum. Wood Products began experiencing problems with the furnace almost immediately, most of which stemmed from the fact that the drum was too large and too thin. Wood Products sued CMI on several theories, including breach of the warranty of merchantability. CMI argued that it was not a merchant with respect to goods of the kind due to “the experimental nature of the furnace.” Id. at 650. The court disagreed, noting that CMI “was then manufacturing (for the use of one of its affiliates) a similar furnace and it has manufactured another since.” Id. at 650-51. See also Geo. Byers Sons, Inc. v. E. Europe Import Export, Inc., 488 F.Supp. 574, 580 (D.Md.1980) (company that was trying to establish an American market for East European vehicles was held to be a merchant of East German motorcycles even though its only other sale at the time was a single Romanian jeep).

Best Bolt argues that this case is similar to Fred J. Moore, Inc. v. Schinmann, 40 Wash.App. 705, 700 P.2d 754 (1985). In that case, the Moore family was in the business of growing mint for the production of mint oil. The Moores were approached by the Schinmanns, who wished to buy spearmint roots. The Moores had never previously sold mint roots, but ultimately agreed to sell roots to the Schin-manns. When the mint roots turned out to be a mixture of spearmint and peppermint, the Schinmanns sued the Moores on several theories, including the warranty of merchantability. The court held that the Moores were not merchants with respect to mint roots because “this was the first and only sale of roots by the Moores.” Id. at 757. Moore involved a single sale, and there was no evidence to suggest that the Moores were interested in continuing to sell mint roots. The case at bar is more similar to Wood Products and Geo. Byers, where the sellers had made a few sales and there was evidence to suggest that the sellers were attempting to develop a new market.

We conclude that the trial court erred by focusing on the fact that Best Bolt was a distributor rather than a manufacturer because that fact is not relevant to the analysis. We also conclude that the trial court erred by characterizing Best Bolt’s experience with pulleys as a single sale where the undisputed evidence reflects that Best Bolt made two sales and was willing to continue selling pulleys if it had a buyer. See McHugh v. Carlton, 369 F.Supp. 1271, 1277 (D.S.C.1974) (service station that would procure and sell recapped tires upon request of customer was a merchant of recapped tires even though service station did not regularly stock and sell recapped tires). Based on the authorities that we have examined, we conclude that Best Bolt is a merchant with respect to pulleys.

We turn then to whether Best Bolt breached the implied warranty of merchantability. Indiana Code Section 26-1-2-314(2) provides:

Goods to be merchantable must at least be such as:

(a) pass without objection in the trade under the contract description; and
(b) in the case of fungible goods, are of fair, average quality within the description; and
(c) are fit for the ordinary purposes for which such goods are used; and
(d) run, within the variations permitted by the agreement, of even kind, quality, and quantity within each unit and among all units involved; and
(e) are adequately contained, packaged, and labeled as the agreement may require; and
(f) conform to the promises or affirmations of fact made on the container or label if any.

The undisputed evidence establishes that the ordinary purpose of a pulley is to bear a dynamic load. Several of Gared’s witnesses testified that a lubricated bushing was an essential part of a pulley, that lubricated bushings were standard in the industry, that it was unreasonable to make pulleys without lubricated bushings, and that a pulley without a lubricated bushing would inevitably have a short useful life. On the other hand, Hylton testified that he was aware of pulleys made without lubricated bushings and opined that “under certain load — static load or ... very low dynamic loads a non[-]bushed pulley could work just as well as a bushed pulley.” Tr. at 509. Because the evidence is in conflict and the trial court did not reach the issue, we remand for the trial court to determine whether Best Bolt breached the warranty of merchantability. Depending on the trial court’s resolution of this issue, it may also be necessary to reconsider the portion of Best Bolt’s counterclaim dealing with # 5 pulleys.

Conclusion

We conclude that the trial court’s judgment on Gared’s claims of breach of contract and breach of the implied warranty of fitness for a particular purpose is supported by the evidence, and we affirm as to those issues. However, we conclude that the trial court erred in ruling that Best Bolt was not a merchant. We therefore remand for the trial court to determine whether Best Bolt breached the implied warranty of merchantability, and if so, whether that alters the result of Best Bolt’s counterclaim.

Affirmed in part and remanded.

FRIEDLANDER, J., concurs.

ROBB, C.J., concurs with separate opinion.

ROBB, Chief Judge,

concurring with separate opinion.

I concur in the majority’s result with respect to Gared’s breach of contract and implied warranty of merchantability claims. I respectfully dissent, however, from the resolution of the implied warranty of fitness for a particular purpose claim.

The implied warranty of fitness for a particular purpose occurs where the seller has reason at the time of contracting to know of any particular purpose for which the goods are being purchased and the buyer is relying on the seller’s skill or judgment in choosing suitable goods for that purpose. See Irmscher Suppliers, Inc. v. Schuler, 909 N.E.2d 1040, 1048 n. 4 (Ind.Ct.App.2009). The trial court found that Gared had proved Best Bolt knew of the particular purpose for which the goods would be used — to raise and lower basketball backboards. I believe when Gared asked Best Bolt to procure pulleys and Best Bolt agreed to do so, Gared was relying on Best Bolt to offer a pulley that would suit this purpose and further, that Gared demonstrated that reliance when it did not test the pulleys for lubrication because, as the majority notes in the discussion of the implied warranty of merchantability, there was testimony indicating a lubricated bushing is an essential part of a pulley and is standard in the industry. Non-lubricated bushings could bear a static load or low dynamic load, but not the load Best Bolt knew these pulleys would be bearing. Gared gave Best Bolt a sample pulley, and although Gared did not want an exact replica of that pulley because they were having quality issues with the cable separating and jamming between parts of the pulley, there were no quality issues with the lubricated bushing and Best Bolt, offering to procure a suitable replacement, held itself out to have the ability to judge what would be suitable.

I would reverse the trial court’s judgment in favor of Best Bolt on the implied warranty of fitness for a particular purpose claim.

      . Gared does not challenge the trial court’s ruling that it must pay Best Bolt for the # 3 pulleys and clevis pins.

      . Naturally, we are not bound by a federal district court’s interpretation of Indiana law. However, there are a limited number of cases interpreting Indiana Code Section 26-1-2-315. Both parties cite Paper Manufacturers for its list of elements, and we agree that it appears to be an accurate summary of the elements that must be proved by the buyer. See Ind.Code § 26-1-2-315, cmt. 1 ("Under this section the buyer need not bring home to the seller actual knowledge of the particular purpose for which the goods are intended or of his reliance on the seller’s skill and judgment, if the. circumstances are such that the seller has reason to realize the purpose intended or that the reliance exists. The buyer, of course, must actually be relying on the seller.”).


source: Caselaw Access Project

author:
RILEY, Judge.
      BROWN, Judge,

license: Public Domain

text:
    Eddie G. SHOWLEY, Executor, Estate of Phillip J. Showley, Appellant-Respondent, v. Tracey KELSEY, Individually and as Successor Personal Representative of the Estate of Sonya Sue Showley, Appellee-Petitioner.
    No. 09A04-1301-ES-22.
    Court of Appeals of Indiana.
    July 25, 2013.

      George W. Stephenson, Michael & Stephenson, Logansport, IN, Attorney for Appellant.
    Janet G. Horvath, Jones Obenchain, LLP South Bend, IN, Attorney for Appel-lee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Respondent, Eddie G. Show-ley, as Executor of the Estate of Phillip J. Showley (Showley), appeals the trial court’s Order, distributing the wrongful death proceeds to Appellee-Petitioner, Tracey Kelsey (Kelsey), Individually and as Successor Personal Representative of the Estate of Sonya Sue Showley.

We affirm.

ISSUE

Showley raises one issue on appeal, which we restate as follows: Whether the trial court abused its discretion when it distributed the wrongful death proceeds pursuant to the laws of the State of Rhode Island.

FACTS AND PROCEDURAL HISTORY

Sonya Sue Showley (Sonya), domiciled in Indiana, died intestate' on May 26, 2006, due to a defective hernia patch. At the time of her death, she was married to Phillip Showley (Phillip). To pursue an action for the hernia patch’s improper design and manufacture, Phillip sought to be appointed personal representative of Sonya’s estate. To that end, he filed a petition for issuance of letters with the trial court on April 25, 2008, listing Tracey Kelsey (Kelsey) as sole heir of Sonya’s estate. Kelsey is Sonya’s adult daughter, she is not Phillip’s daughter. On April 28, 2008, Phillip was appointed as administrator of Sonya’s estate. As administrator, Phillip filed a tort claim against Davol Inc. and C.R. Bard, Inc. in Rhode Island, instituting, in pertinent part, an action for Sonya’s wrongful death.

On August 7, 2011, while the tort claim action was pending in Rhode Island, Phillip died. On August 15, 2011, as Sonya’s sole remaining heir, Kelsey filed a petition for appointment of successor personal representative of Sonya’s estate, which was granted by the trial court on August 22, 2011. On November 8, 2011, Kelsey, as administrator of Sonya’s estate, accepted a gross settlement offer of $292,500 for the Rhode Island tort claim, which was classified as a wrongful death entitlement.

On June 7, 2012, Kelsey filed her personal representative’s intermediate accounting and petition for partial distribution. In this petition, Kelsey proposed to apply the Rhode Island statutory scheme for distribution of the wrongful death proceeds. Application of the Rhode Island statute would award these proceeds to Kelsey, as Sonya’s only surviving beneficiary. On June 27, 2012, Phillip’s estate objected to the petition for partial distribution. Showley, Phillip’s son and personal representative of Phillip’s estate, argued that Indiana law should be applied to the distribution and as such, all proceeds should be awarded to Phillip’s estate. Showley is not Sonya’s son; Phillip and Sonya did not have children together. On July 11, 2012, the trial court conducted a hearing on Kelsey’s petition. On October 2, 2012, the trial court issued its Order, distributing the wrongful death proceeds pursuant to the laws of the State of Rhode Island and awarding the settlement proceeds to Kelsey, as Sonya’s only surviving beneficiary.

On November 1, 2012, Showley filed a motion to correct error, which was denied by the trial court without a hearing.

Showley now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Showley contends that the trial court erred when it approved Kelsey’s petition for partial distribution and awarded her the wrongful death settlement as the sole surviving beneficiary of Sonya’s estate pursuant to the laws of Rhode Island. Showley maintains that the wrongful death proceeds should have been distributed pursuant to Ind.Code § 34-28-1-1 and thus, Phillip’s estate would have been the sole beneficiary.

This case comes before us as an appeal from a denial of a motion to correct error. A trial court has discretion to grant or deny a motion to correct error and we reverse its decision only for an abuse of that discretion. Hawkins v. Cannon, 826 N.E.2d 658, 662 (Ind.Ct.App.2005), trans. denied. An abuse of discretion occurs when the trial court’s decision is against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law. Id.

Properly characterized, the issue before us is whether the trial court abused its discretion in applying Rhode Island law to the distribution of the wrongful death proceeds when the decedent and all heirs are residents of Indiana and the injury, giving rise to the wrongful death settlement, occurred in Indiana but suit was filed in Rhode Island. We analyzed a similar question in Matter of Estate of Bruck, 632 N.E.2d 745 (Ind.Ct.App.1994), in which we approved the distribution of wrongful death proceeds in accordance with Ohio law.

In Brack, two separate estates were opened in Indiana for spouses Derek and Michelle who had died intestate after they were killed in an accident in Ohio. Id. at 746. Michelle survived Derek for approximately ten to forty minutes. Id. Analyzing the issue of determining the law to govern a wrongful death distribution as one of first impression, we first turned to the traditional lex loci delicti — the law of the place where the injury occurred. Id. at 747. Recognizing the modern trend of abandoning the lex loci delicti in favor of the significant relationship test, we noted that “[i]n this case, the most relevant factor is the unique legal status of the wrongful death proceeds.” Id. at 748. We acknowledged that pursuant to Indiana’s wrongful death statutes, no award would have been made as Derek had not left a surviving spouse or dependent children; whereas Ohio law permits not only recovery for survivors other than dependents and spouses, but also permits an equitable distribution of the damages. Id. Another distinction focused on the fact that the wrongful death proceeds may not become part of the estate and pass through intestate distribution in Indiana. Id. As such, we concluded that

Because Indiana’s wrongful death statute does not contemplate the damages awarded in the present case, and because wrongful death proceeds may not enter the decedent’s estate, the present case is best treated as outside the ambit of our statutory scheme for the distribution of wrongful death proceeds. No mechanism for the distribution of these damages exists in Indiana.
[I]t may be taken as thoroughly established that the law of the forum will govern if the question for determination involves the remedy or procedure, except where the remedy prescribed by the foreign law which is the basis of the right sought to be enforced is so inseparable therefrom that it must also be enforced in order to preserve the integrity of the substantive right.
Here, the distribution of the recovery is inseparable from the recovery in that only under Ohio law can the distribution fulfill the essential purpose of the damages, which is to benefit the immediate survivors regardless of dependency.

Id. at 748^49 (quoting 15A C.J.S. Conflict of Laws § 9).

Likewise, here, Phillip, as initial administrator of Sonya’s estate, filed a suit for wrongful death based on the laws of Rhode Island. In his complaint, Phillip requested to be awarded punitive damages for Sonya’s wrongful death. Pursuant to Rhode Island, punitive damages are permitted under the wrongful death statute, whereas this award cannot be made under Indiana law. Compare R.I. Gen. Law § 10-7-7.1 with I.C. § 34-23-1-1. Under Indiana’s wrongful death statute, when the decedent leaves no surviving spouse, dependent children, or dependent next of kin, only medical, funeral, and administrative expenses may be awarded; while under Rhode Island statute a wrongful death action may be brought for the benefit of survivors other than dependents and spouses and provides for a minimum recovery of $250,000. Compare I.C. § 34-23-1-1 with R.I. Gen. Law § 10-7-2.

As in this situation a recovery under the Indiana wrongful death statute would have been doubtful, this case falls into a similar legal lacuna as Bruch Because a recovery only exists under the law of Rhode Island, its distribution cannot be separated and must be enforced in accordance with Rhode Island statute in order to preserve the integrity of the underlying substantive right.

In support of his argument that Indiana law should be applied, Showley focuses on Bemenderfer v. Williams, 745 N.E.2d 212 (Ind.2001)' where bur supreme court held that the wrongful death statute does not operate to preclude the statutory beneficiary who dies before judgment from recovering wrongful death damages. In other words, Showley maintains that even though Phillip survived Sonya but died prior to the settlement of her wrongful death, Phillip’s estate is the sole beneficiary of -the proceeds. However, by falling exclusively within Indiana’s jurisdiction, Bemenderfer does not provide us with guidance to resolve the threshold procedural choice of law issue we are faced with here as the instant situation was derived from a cause instituted in Rhode Island. Therefore, we find Bemenderfer inapplicable to the facts before us.

In sum, based on the unique facts of the case, we conclude that the trial court properly applied the law and thus, did not abuse its discretion by applying Rhode Island statutory law to the distribution of the wrongful death settlement.

CONCLUSION

Based on the foregoing, we conclude that the trial court properly ordered the wrongful death proceeds to be distributed pursuant to the laws of the' State of Rhode Island.

Affirmed.

BRADFORD, J., concurs.

BROWN, J., dissents with separate opinion.

BROWN, Judge,

dissenting.

I respectfully dissent. In my view, the majority misreads and misapplies the test articulated in Bruck. In Bruck, we discussed a similar conflict of laws issue previously addressed by Indiana courts, namely, which forum’s law governs liability, and we noted that the Restatement (Second) of Conflict of Laws provides:

[T]he distribution of wrongful death proceeds should be governed by the state law selected to govern liability, except that
where one state is the state of domicile of the decedent and the beneficiaries or the defendant and the beneficiaries, it would seem that, ordinarily at least, the wrongful death statute of this state should be applied to determine how the recovery in a wrongful death action should be distributed.

632 N.E.2d at 747 (quoting Restatement (Second) of Conflict of Laws § 177, cmt. B (1971)). We noted that “[t]he traditional conflict of laws rule in torts has been to apply lex loci delicti — the law of the place where the injury occurred,” but that there has been a modern trend to abandon this traditional rule “in favor of the ‘most significant relationship’ test” contained in the Restatement (Second) of Conflict of Laws, §§ 175 and 177. Id. We also observed that the Indiana Supreme Court, in Hubbard Mfg. Co., Inc. v. Greeson, 515 N.E.2d 1071 (Ind.1987), adopted a modified version of the “significant relationship test” as follows:

“Choice-of-law rules are fundamentally judge-made and designed to ensure the appropriate substantive law applies. In a large number of cases, the place of the tort will be significant and the place with the most contacts. E.g., Lambert v. Yellowbird, Inc. (1986), Ind.App., 496 N.E.2d 406, 409 n. 2. In such cases, the traditional rule serves well. A court should be allowed to evaluate other factors when the place of the tort is an insignificant contact. In those instances where the place of the tort bears little connection to the legal action, this Court will permit the consideration of other factors such as:
1) the place where the conduct causing the injury occurred;
2) the residence or place of business of the parties; and
3) the place where the relationship is centered.
Restatement (Second) of Conflicts of Laws § 145(2) (1971). These factors should be evaluated according to their relative importance to the particular issues being litigated.

Id. (quoting Hubbard, 515 N.E.2d at 1073-1074) (emphases added). We then restated that test as: “[Ljex loci delicti is the rule presumptively to be applied unless the place of the tort is an insignificant contact, in which case other factors may be considered. The relative importance of those factors must then be evaluated in determining which state’s law to apply.” Id. Applying that test to the facts at issue, in which the decedent, an Indiana resident, was traveling on the Ohio turnpike from New York to Indiana when he was struck by a tractor trailer and killed, we determined such contact with Ohio to be insignificant, and were accordingly then “left to consider other factors under the Hubbard analysis” in determining whether Indiana or Ohio’s wrongful death distribution laws governed. Id. at 747-748.

Here, by contrast, as alleged in the complaint filed in Rhode Island, although the Kugel Patch was manufactured in Cran-ston, Rhode Island, the surgery in which the Kugel Patch was implanted into Show-ley took place in Logansport, Indiana. Logansport was also the place where the subsequent surgeries occurred, as well as where Showley ultimately died. Philip and Showley were domiciled in Cass County, Indiana. Thus, the place of the tort, Indiana, was a very significant contact given the circumstances surrounding the wrongful death action, and it was unnecessary to turn to other factors described in Hubbard. Lex loci delicti should control distribution of the proceeds.

Indeed, my review of applicable Rhode Island law reveals that, had this matter proceeded to trial, the Rhode Island court would have decided to apply Indiana’s wrongful death statute. Rhode Island has adopted an “interest-weighing” approach to determine which state’s law to apply in a given case. Najarian v. Nat’l Amusements, Inc., 768 A.2d 1253, 1255 (R.I.2001) (citing Woodward v. Stewart, 104 R.I. 290, 299, 243 A.2d 917, 923, (1968), cert. denied, 393 U.S. 957, 89 S.Ct. 387, 21 L.Ed.2d 371 (1968)). Under this method, the Rhode Island trial court is required to look at the facts of the particular case and determine the rights and liabilities of the parties “in accordance with the law of the state that bears the most significant relationship to the event and the parties,” i.e., the modern significant relationship test. Id. (citing Cribb v. Augustyn, 696 A.2d 285, 288 (R.I. 1997) (quoting Pardey v. Boulevard Billiard Club, 518 A.2d 1349, 1351 (R.I. 1986))).

Factors which the Rhode Island court must weigh in determining which law applies are “(1) predictability of result; (2) maintenance of interstate and international order; (3) simplification of the judicial task; (4) advancement of the forum’s governmental interests; and (5) application of the better rule of law.” Id. (quoting Pardey, 518 A.2d at 1351 (citing Brown v. Church of the Holy Name of Jesus, 105 R.I. 322, 252 A.2d 176 (1969))). Also, in tort cases, the following contacts are also to be considered: (a) the place where the injury occurred; (b) the place where the conduct causing the injury occurred; (c) the domicile, residence, nationality, place of incorporation and place of business of the parties; and (d) the place where the relationship, if any, between the parties is centered. Id. (citing Brown, 105 R.I. at 326-27, 252 A.2d at 179; Restatement (Second) Conflict of Laws § 145(2) (1971)). Also, according to Rhode Island law, in personal injury actions the law of the state where the injury occurred governs the rights and liabilities of the parties unless one state has a more significant relationship with respect to a particular issue. Id. (citing Blais v. Aetna Casualty & Surety Co., 526 A.2d 854, 856-857 (R.I. 1987); Restatement (Second) Conflict of Laws § 146 (1971)).

Thus, had the Rhode Island court held a trial or ruled on this issue, it is probable that it would have applied Indiana law. That being said, it is puzzling that this court would then apply Rhode Island law to the distribution of the settlement proceeds. Thus, rather than falling into a “legal lacuna,” in my view this case is rather straightforward and Indiana’s wrongful death scheme should apply.

Having determined that Indiana law applies, the Indiana Supreme Court made clear in Bemenderfer v. Williams that “the wrongful death statute does not operate to preclude the statutory beneficiary who dies before judgment from recovering wrongful death damages.” 745 N.E.2d 212, 214 (Ind.2001). Instead, the person(s) entitled to the estate of the statutory taker stand(s) to recover such proceeds. Id. at 219. Thus, Eddie, as Philip’s sole heir, is entitled to Philip’s share of the proceeds of Showley’s settlement, which is the remainder of the settlement proceeds after payment to Showley’s estate of “reasonable medical, hospital, funeral and burial ex-pense[s],” Ind.Code § 34-23-1-1, because Kelsey did not demonstrate that she is a dependent child. See Luider v. Skaggs, 693 N.E.2d 593, 596 (Ind.Ct.App.1998) (holding that “the degree of kinship alone should not be the sole factor in determining the right of recovery in a wrongful death action,” that “the issue of dependency should also define the right,” and “[t]he fact that the decedent is survived by a brother who was not dependent upon her should not foreclose Luider’s right to recovery,” in which appellant Luider was a dependent second cousin of the decedent and appellee Skaggs, the decedent’s non-dependent brother, challenged the distribution), trans. denied; see also Necessary v. Inter-State Towing, 697 N.E.2d 73, 80 (Ind.Ct.App.1998) (“Thus, the legislature set forth two conditions for recovery under the wrongful death statute: dependency and heirship. If both of these cannot be shown by the claimant, then that person is precluded from recovering as a dependent under the wrongful death statute.”), reh’g denied, trans. denied.

Finally, I note that the majority implies that because Philip, in his Petition for Issuance of Letters, named Kelsey as heir of Showley’s estate, he meant to pursue the wrongful death claim on her behalf. In my view, however, Philip was merely listing Kelsey as a known heir of Showley’s estate, and was not necessarily excluding himself as an heir. Indeed, the court in its order named Philip as Showley’s heir when it also appointed Philip the administrator of her estate. To that end, I also note that Philip, in the complaint filed in the Rhode Island court, named himself as both the personal representative “and as next of kin” for Showley. Appellant’s Appendix at 13. Indeed, the complaint alleges among other things loss of consortium, in which Philip was the party directly impacted by the alleged conduct of Davol and Bard. The complaint does not mention Kelsey.

While I may be inclined to agree with the majority to the extent that, between the two prospective takers in this instance, Kelsey appears to be the more sympathetic figure, it also appears clear to me that the balance of Showley’s wrongful death proceeds should have been awarded to Philip’s estate. I would remand for a determination of the reasonable medical, hospital, funeral and burial expenses to be awarded to Showley’s estate, and award the remainder of the proceeds to Philip’s estate. I respectfully dissent.

      . On October 12, 2011, Phillip’s estate filed a petition to rectify the omission in the petition for issuance of letters requesting the trial court to add Phillip as heir of Sonya’s estate.

      . For the first time in his reply brief, Showley argues that even if Rhode Island statutory law is applicable to the distribution of the wrongful death proceeds, Phillip’s estate is entitled to receive half of the amount recovered based on R.I. Gen. Law § 10-7-2 which provides that "of the amount recovered in every action under this chapter one-half shall go to the husband or widow, and one-half shall go to the children of the deceased[.]” However, it is well settled that grounds for error may only be framed in an appellant’s initial brief and if addressed for the first time in the reply brief, they are waived. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005).
      Nevertheless, waiver notwithstanding, Showley's argument does not prevail. In Walsh v. Bressette, 51 R.I. 354, 155 A. 1, 2 (1931), the supreme court held that ”[i]n our opinion the class which is to participate in the recovery is closed, and the beneficiaries determined, not when the death occurs, but when judgment is entered.... It follows that the right of [deceased widow] to share to the extent of one-half in the amount recovered terminated with her death and vested in such of the children who are living when judgment is entered.”

      . Ind.Code § 34-23-1-1 provides in part:
      When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he or she, as the case may be, lived, against the latter for an injury for the same act or omission. When the death of one is caused by the wrongful act or omission of another, the action shall be commenced by the personal representative of the decedent within two (2) years, and the damages shall be in such an amount as may be determined by the court or jury, including, but not limited to, reasonable medical, hospital, funeral and burial expenses, and lost earnings of such deceased person resulting from said wrongful act or omission. That part of the damages which is recovered for reasonable medical, hospital, funeral and burial expense shall inure to the exclusive benefit of the decedent's estate for the payment thereof. The remainder of the damages, if any, shall, subject to the provisions of this article, inure to the exclusive benefit of the widow or widower, as the case may be, and to the dependent children, if any, or dependent next of kin, to be distributed in the same manner as the personal property of the deceased. ... (Emphasis added).


author: RILEY, Judge. BRADFORD, Judge,

text:
    Adam MILLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 53A05-1211-CR-560.
    Court of Appeals of Indiana.
    July 30, 2013.

      Stuart K. Baggerly, Bloomington, IN, Noah T. Williams, Bloomington, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Adam Miller (Miller), appeals the trial court’s denial of his motion to suppress.

We reverse.

ISSUE

Miller raises four issues, one of which we find dispositive and restate as the following: Whether the trial court erred by denying his motion to suppress.

FACTS AND PROCEDURAL HISTORY

On January 9, 2011, Officer Jordan Has-ler of the Bloomington Police Department (Officer Hasler) was patrolling in his vehicle when he saw a vehicle driven by Miller. After confirming that the vehicle’s license plate sticker had expired, he initiated a traffic stop of Miller’s vehicle. Officer Hasler saw Miller reach toward the right side of the car. Miller turned into a nearby restaurant parking lot and parked his car in a handicapped parking space, reaching toward the left side of the car as he did so.

Officer Hasler exited his vehicle and approached Miller’s vehicle on the passenger side. Miller exited his car, coming out all the way out as he saw Officer Hasler at the rear right bumper. Miller appeared irate and Officer Hasler commanded him to return to the inside of the car. Miller continued to exit the car three more times, with Officer Hasler commanding him to return. However, on the fourth time, Officer Hasler handcuffed Miller outside the car. The parking lot was filled with people during this time.

Officer Hasler commenced a patdown of Miller’s clothing. He found no weapons but noticed the smell of burnt marijuana on Miller’s clothes. Officer Hasler asked Miller why he smelled of marijuana and Miller replied that he did not smoke marijuana and that his father was a police officer. Officer Hasler asked Miller whether he had any “guns, knives, needles [...] rocket launchers or grenades in his car.” (Transcript p. 10). Miller responded, “none that [Officer Hasler] needed to know of.” (Tr. p. 10). Officer Hasler did not believe this was a common answer and was concerned that Miller may have a weapon.

Additional officers arrived at the scene. Officer Hasler determined that the car was registered to Miller, but pursuant to Bloomington Police Department policy, decided to have the vehicle towed because of its expired license plate sticker. Pursuant to policy, the officers began an inventory search of Miller’s car prior to towing. Officer Hasler issued Miller a citation. Miller was released from his handcuffs and told that he was free to leave. Miller said that he needed his cell phone and backpack which were still inside his car.

Officer Hasler retrieved the backpack and searched it for weapons. Inside the backpack, Officer Hasler saw two containers held together with a rubber band: a transparent Tupperware container that had green residue which Officer Hasler believed to be marijuana, and an opaque “wooden container that contained a smoking device that emitted burnt marijuana odor.” (Tr. p. 18).

Miller was arrested for possession of paraphernalia and the officers continued their inventory search of Miller’s vehicle. Officer Hasler took Miller’s car key to open the glove box in his car. Inside, a loaded handgun and a magazine containing 30 rounds of ammunition was found. Miller had a license to possess the handgun. Approximately 45 minutes to an hour elapsed from the beginning of the traffic stop to Miller’s eventual booking at jail.

On January 10, 2011, the State filed an Information charging Miller with Count I, possession of paraphernalia, a Class A misdemeanor, Ind.Code § 35-48-4-8.3(a)(l). On November 7, 2011, Miller filed a motion to suppress the evidence, alleging violations of both the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. On February 13, 2012, a hearing was held with Officer Hasler and Miller providing testimony. The trial court took the matter under advisement. On February 21, 2012, Miller filed a brief in support of his motion to suppress.

On February 24, 2012, the Stated filed a motion to reopen evidence. The State alleged that Officer Hasler had additional testimony required to resolve an issue concerning the level of invasiveness of Officer Hasler’s search of the backpack. On February 27, 2012, Miller opposed the State’s motion alleging prejudice if the State was permitted to present additional evidence after Miller had filed his. memorandum in support of his motion to dismiss. On March 15, 2012, the trial court held an additional hearing. Over, objection, .the State briefly examined Officer Hasler on his experience with marijuana smoking paraphernalia, particularly the paraphernalia found in Miller’s backpack. Miller then extensively cross-examined Officer Miller on the paraphernalia, the inventory search, his questioning of Miller regarding weapons, and his experience with hidden weapons.

On August 8, 2012, the trial court issued its Order denying Miller’s motion to suppress. On August 24, 2012, Miller filed a motion to correct error and on September 7, 2012, filed a motion to certify the trial court’s Order for interlocutory appeal. On October 3, 2012, the trial court denied Miller’s motion to correct error and certified its Order for interlocutory appeal. On December 14, 2012, we accepted interlocutory appeal.

Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Motion to Suppress

Miller argues that the trial court abused its discretion by denying his motion to suppress. He contends that Officer Has-ler’s search of his backpack violated his rights under the Fourth Amendment of the United States Constitution. Specifically, he asserts that Officer Hasler’s war-rantless search of the backpack was not based on a reasonable suspicion of criminal activity or reasonable safety concerns. He also contends that the automobile exception to the Fourth Amendment does not apply.

We review a denial of a motion to suppress similar to other sufficiency matters. Dora v. State, 957 N.E.2d 1049, 1052 (Ind.Ct.App.2011), reh’g denied, trans. denied. We do not reweigh the evidence, but consider conflicting evidence in the light most favorable to the trial court’s ruling. Id. Uncontested evidence, however, is viewed in favor of the defendant. Id.

A. Terry Stop

The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures; its protections extend to the States through the Fourteenth Amendment. Id. Warrantless searches are generally prohibited under the Fourth Amendment. Berry v. State, 704 N.E.2d 462, 465 (Ind. 1998). When a search is conducted without a warrant, the State has the burden of proving that an exception to the warrant requirement existed at the time of the search. Id.

In upholding the search of Miller’s backpack, the trial court relied primarily upon the United States Supreme Court decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which permits a warrantless but “reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” Id. at 27, 88 S.Ct. 1868. “The officer need not be absolutely certain that the individual is armed; rather, the issue is whether a reasonable prudent person in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id.

In Berry, a police officer found Berry sleeping under some bushes. Berry, 704 N.E.2d at 465. Berry was not under arrest nor considered dangerous. See id. After his story did not check out, the officer and Berry went to the officer’s patrol car. Id. The officer picked up Berry’s backpack, placed it on her patrol car, and heard a metallic sound. Id. at 465-66. The police officer searched both Berry and the backpack and found a handgun and ammunition. Id. at 466. The Berry court noted that, “circumstances that justify a Terry stop and search of a person for a weapon do not automatically justify examination of the contents of items carried by that person such as purses, backpacks or briefcases.” Berry, 704 N.E.2d at 465. However, “where either the suspicion that criminal activity may be afoot or a concern over the possibility of harm is reasonably heightened during the stop, the police are authorized to search such items within the suspicious person’s immediate control.” Id. at 466.

The Berry court relied on Owens v. State, 497 N.E.2d 230, 232 (Ind.1986), to uphold the search. In Owens, police stopped Owens based on a description of a robbery suspect. Id. at 231. After his story did not check out, an officer placed Owens’ bag on the patrol car and heard a metallic sound. Id. A subsequent patdown and search of the bag revealed a sawed-off shotgun. Id. The distinguishing feature in both cases was that the police could point to an articulable fact in support of “a concern over the possibility of harm [being] reasonably heightened during the stop.” Berry, 704 N.E.2d at 466.

Because Officer Hasler did not point to articulable facts supporting either a suspicion of criminal activity or a concern over the possibility of harm, we conclude that Officer Hasler’s search of Miller’s backpack was impermissible under the Fourth Amendment. Miller was initially detained by Officer Hasler for driving with an expired license plate registration sticker. Due to Miller’s unusual behavior, he was restrained and frisked for weapons by Officer Hasler. After Miller refused to consent to a search of his vehicle, Miller’s vehicle was to be inventoried and towed pursuant to Bloom-ington Police Department policy. Officer Hasler issued him a citation and Miller was released from handcuffs and told that he was free to go. Based upon Miller’s request, Officer Hasler retrieved the backpack from the vehicle but searched his backpack. In explaining why he searched Miller’s backpack, Officer Has-ler testified on cross-examination as follows:

[OFFICER HASLER]: [...]. I was going to search for weapons due to the fact that it was in the vehicle and it was being inventoried.
[MILLER]: So is it a — sorry, was it a search for weapons or an inventory?
[OFFICER HASLER]: If a person comes to me and says I want a backpack or I want a hat in my car and it’s being inventoried, I’m going to search it for weapons prior to giving it back to him because I’m not going to hand him a case or a back pack after inventory in it that has a'handgun or knife or something inside of it, for my safety.
[MILLER]: Okay. If I were a student, would you refuse to let me get my books out of the car before your searched the book bag?
[OFFICER HASLER]: I would search [... ] simply for our safety because you could have razor blades or other sharp objects or cut out, you know, a handgun could be in a book, I mean.
[OFFICER HASLER]: Would you say if you stopped [the trial court judge] and his tags, were expired and he said, hey I’d like to get my briefcase out of there. It’s got my files for [c]ourt today. You’d search it before you handed it to him?
[OFFICER HASLER]: Yes, sir.

(Tr. pp. 21, 24).

Unlike Owens and Berry, the traffic stop here terminated with the issuance of a citation. Officer Hasler did not point to any suspicion that criminal activity was afoot, nor any facts in support of “a concern over the possibility of harm [being] reasonably heightened during the stop.” Berry, 704 N.E.2d at 466. Instead, Officer Hasler’s testimony demonstrates that his election to search the backpack was based upon procedure. We conclude that this is insufficient under these circumstances.

In defense of Officer Hasler’s search, the State points to Miller’s erratic behavior prior to and immediately after the stop. As with many search cases and probable cause issues, the timing of events and the officer’s knowledge are critical in determining the validity of the search. Sears v. State, 668 N.E.2d 662, 666 (Ind.1996), overruled on other grounds, Scisney v. State, 701 N.E.2d 847, 849 (Ind.1998). Officer Hasler’s issuance of the citation ended the encounter and therefore the Terry stop; Miller had been released from his handcuffs and told that he was free to go. Miller’s erratic behavior was too attenuated to furnish either a suspicion of criminal activity or belief that it posed a safety threat to trigger a new Terry stop after having been released. We therefore conclude that Officer Hasler’s search of Miller’s backpack was impermissible under the Fourth Amendment.

B. Automobile Exception

In upholding the search of Miller’s backpack, the trial court also relied on the automobile exception to the Fourth Amendment. The trial court reasoned that Officer Hasler’s search was supported by probable cause based upon Officer Has-ler’s prior observation that Miller’s clothes smelt of burnt marijuana. On appeal, Miller argues that Officer Hasler’s search was not based on probable cause.

A search falls within the automobile exception when a vehicle is readily mobile and there is probable cause to believe it contains contraband or evidence of a crime. See Meister v. State, 938 N.E.2d 875, 878-79 (Ind.2010). If probable cause exists, the police have the authority to search a vehicle and all containers located therein. See Krise v. State, 746 N.E.2d 957, 962 (Ind.2001). However, “the scope of a warrantless search based on probable cause is no narrower — and no broader— than the scope of a search authorized by a warrant supported by probable cause.” Id. at 962.

The trial court concluded that “the distinctive odor of burnt marijuana emanated from [Miller’s] clothes” “justifie[d] a search of the vehicle and containers therein based on probable cause.” (Appellant’s App. p. 14). It also reasoned that Officer Hasler’s observation of green residue inside the Tupperware container found in Miller’s backpack “bolsters finding probable cause.” (Appellant’s App. p. 14). We disagree.

“Facts necessary to demonstrate the existence of probable cause for a warrantless search are not materially different from those which would authorize the issuance of a warrant if presented to a magistrate.” Meister, 933 N.E.2d at 879. Probable cause to issue a search warrant exists where the facts and circumstances would lead a reasonably prudent person to believe that a search would uncover evidence of a crime. Id. Officer Hasler noticed the smell of burnt marijuana emanating from Miller’s clothes prior to restraining him. Officer Hasler asked Miller why his clothes smelled of burnt marijuana and Miller replied that he did not smoke marijuana and that his father was a police officer. Following his pat-down of Miller’s clothes, Officer Hasler did not find marijuana. Thereafter, Officer Hasler issued him a citation and told Miller that he was free to leave.

We have recognized that the odor of marijuana on a person’s breath and emanating from inside a vehicle may give rise to probable cause that a person possesses marijuana. Edmond v. State, 951 N.E.2d 585, 590-91 (Ind.Ct.App.2011). At the same time, “[b]eeause the odor of burnt marijuana might linger in a vehicle for a period of time, that odor does not necessarily indicate illegal activity by a current occupant.” Id. at 591. Here, there is no evidence that the odor of marijuana emanated from the vehicle. Following Miller’s request, Officer Hasler entered Miller’s vehicle to retrieve the backpack yet he did not testify that the vehicle smelled of marijuana. To the extent that the State argues that Miller’s prior actions supplied probable cause, we again conclude that these circumstances are too attenuated given that Officer Hasler’s patdown found no marijuana and Miller was told that he was free to leave. Because we conclude that Officer Hasler provided no facts and circumstances that would lead a reasonably prudent person to believe that a search would uncover evidence of a crime, probable cause to search Miller’s backpack did not exist. As a result, the automobile exception to the Fourth Amendment cannot be applied to uphold the search. Therefore, the trial court erred by denying Miller’s motion to suppress.

CONCLUSION

Based on the foregoing, we conclude that the trial court erred by denying Miller’s motion to suppress.

Reversed.

BROWN, J., concurs.

BRADFORD, J., dissents with separate opinion.

BRADFORD, Judge,

dissenting.

While I agree with the majority that Officer Hasler’s search of Miller’s backpack was not justified by officer safety concerns or as part of an inventory search of the impounded car, I believe that it was supported by probable cause that contraband might be found within. Also, in addressing arguments not reached by the majority, I would conclude that Officer Hasler’s search did not violate the Indiana Constitution and that the trial court did not abuse its discretion in reopening the evidence at Miller’s suppression hearing.

■ I. Fourth Amendment

The State argues that Officer Hasler’s search of Miller’s backpack was justified pursuant to the automobile exception to the Fourth Amendment.

As a general rule, the Fourth Amendment prohibits warrantless searches, but there are exceptions to the warrant requirement. Black v. State, 810 N.E.2d 713, 715 (Ind.2004)....
The automobile exception was first applied in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). This exception was originally based on ready mobility and exigent circumstances. See Coolidge v. New Hampshire, 403 U.S. 443, 459-60, 91 S.Ct. 2022, 2034-35, 29 L.Ed.2d 564, 579 (1971). The United States Supreme Court later made. clear that separate exigent circumstances are not required for the automobile exception to apply because “[t]he mobility of automobiles ... ‘creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible.’ ” California v. Carney, 471 U.S. 386, 391, 105 S.Ct. 2066, 2069, 85 L.Ed.2d 406, 413 (1985) (quoting South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000, 1004 (1976)); see also Maryland v. Dyson, 527 U.S. 465, 466-67, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442, 445 (1999) (“[T]he ‘automobile exception’ has no separate exigency requirement. ... [I]n cases where, there [is] probable cause to search a vehicle ‘a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not been actually obtained.’ ”) (quoting United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 2164-65, 72 L.Ed.2d 572, 584 (1982)); Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031, 1036 (1996) (“If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more.”). Furthermore, the exception is based not only on ready mobility but also on the lesser expectation of privacy with respect to automobiles, so that even where an automobile is not immediately mobile, a warrantless search may still be justified. Labron, 518 U.S. at 940, 116 S.Ct. at 2487, 135 L.Ed.2d at 1036.
In Dyson, the United States Supreme Court' held that police need not obtain a search warrant before searching a vehicle that they have probable cause to believe contains illegal drugs. The Court emphasized that the automobile exception “does not have a separate exigency requirement,” id., 527 U.S. at 467, 119 S.Ct. at 2014, 144 L.Ed.2d at 445, and that “[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment ... permits police to search the vehicle without more.” Id. (quoting Labron, 518 U.S. at 940, 116 S.Ct. at 2485, 135 L.Ed.2d at 1035-36).

Myers v. State, 839 N.E.2d 1146, 1150-51 (Ind.2005).

I believe that Officer Hasler had ample probable cause to search Miller’s vehicle and its contents, including the backpack. In eases where police detected the odor of burnt marijuana emanating from a motor vehicle, Indiana Courts, adhering to the majority rule, have consistently held that probable cause to search the ear existed. See, e.g., State v. Hawkins, 766 N.E.2d 749, 752 (Ind.Ct.App.2002) (“[W]e have no hesitation in deciding that when a trained and experienced police officer detects the strong and distinctive odor of burnt marijuana coming from a vehicle, the officer has probable cause to search the vehicle.”), trans. denied.

While recognizing that there is nothing in the record to indicate that Officer Has-ler detected the odor of burnt marijuana emanating from Miller’s vehicle, I would still conclude that, under the circumstances of this case, probable cause existed to search it for contraband. First and foremost, Officer Hasler detected the odor of burnt marijuana on Miller’s person, which raises a reasonable inference that he had smoked marijuana somewhat recently and might be in possession of contraband, either on his person or in the vehicle he recently exited.

Moreover, Miller’s actions before, during, and after the traffic stop were suspicious and raised a reasonable inference that his vehicle contained contraband. After Officer Hasler activated his lights, he noticed Miller “abruptly lean[ ] down as if he was reaching for something or doing something to the right side as he turned into the parking lot.” Tr. p. 7. After Miller quickly parked his vehicle, Officer Has-ler observed Miller “reach[ ] down as if he was reaching to the left side[.]” Tr. p. 7. When Officer Hasler approached Miller’s car on the passenger side and had reached the back quarter panel, Miller “abruptly exited the vehicle.” Tr. p. 8. Although Miller briefly returned to his vehicle when advised to by Officer Hasler, he exited again almost immediately when Officer Hasler started toward the passenger-side window. Miller sat down a third time in the vehicle, but, again, almost immediately exited as Officer Hasler started to walk around the rear of the vehicle. Officer Hasler advised Miller once to stay seated in the vehicle, but Miller exited almost immediately for a fourth time.

In my view, Miller’s actions also give rise to a reasonable inference that his vehicle contained contraband. Miller’s furtive actions before and after parking his vehicle are entirely consistent with a person secreting contraband that might otherwise be plainly visible to a person standing outside looking into the vehicle, as Officer Hasler was about to do. Miller’s refusal to remain in his vehicle, despite being advised to several times, also leads to a reasonable inference that there was something within that he did not want Officer Hasler to see or otherwise become aware of. In short, Miller seemed to being doing everything he could to keep Officer Hasler away from his vehicle. Miller’s actions, along with the odor of marijuana emanating from his person, provided ample probable cause to search his vehicle and containers within for illegal drugs. It is not relevant to our analysis that Officer Hasler believed that his search of Miller’s backpack was justified as an inventory search. Officer’s Has-ler’s subjective beliefs, quite simply, have no legal effect. See, e.g., Moffitt v. State, 817 N.E.2d 289, 246 (Ind.Ct.App.2004), tram, denied. I believe that objective probable cause existed to search the backpack, and so Officer Hasler’s search, whatever his stated justification, was constitutional.

II. Article I, Section 11

I would also conclude that the search of Miller’s backpack did not violate Article I, Section 11, of the Indiana Constitution, which provides that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

The Indiana Supreme Court has noted that

[w]hile almost identical in wording to the federal Fourth Amendment, the Indiana Constitution’s Search and Seizure clause is given an independent interpretation and application. Mitchell v. State, 745 N.E.2d 775, 786 (Ind.2001); Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind.1999); Moran v. State, 644 N.E.2d 536, 540 (Ind.1994). To determine whether a search or seizure violates the Indiana Constitution, courts must evaluate the “reasonableness of the police conduct under the totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind.2005) (citing Moran, 644 N.E.2d at 539). “We believe that the totality of the circumstances requires consideration of both the degree of intrusion into the subject’s ordinary activities and the basis upon which the officer selected the subject of the search or seizure.” Id. at 360. In Litchfield, we summarized this evaluation as follows:
In sum, although we recognize there may well be other relevant considerations under the circumstances, we have explained reasonableness of a search or seizure as turning on a balance of: 1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of the search or seizure imposes on the citizens’ ordinary activities, and 3) the extent of law enforcement needs.

Id. at 361.

Myers v. State, 839 N.E.2d 1146, 1153 (Ind.2005).

Although Officer Hasler’s stated reason for searching Miller’s backpack was concern for his safety, there was nonetheless a relatively high degree of suspicion that a criminal violation had occurred. Miller was acting suspiciously, repeatedly failing to heed Officer Hasler’s requests that he remain in his vehicle, and he smelled of burnt marijuana. Miller seemed to be very intent on keeping Officer Hasler away ¡from this vehicle, raising suspicion that it might contain contraband. See, e.g., Edmond v. State, 951 N.E.2d 585, 592 (Ind.Ct.App.2011) (concluding that degree of suspicion weighed in State’s favor where there was probable cause to believe illegal drugs were present). The degree of intrusion into Miller’s activities was slight. Officer Hasler’s search of Miller’s backpack was not invasive or humiliating, did not involve searching his person, and apparently did not lengthen his detention appreciably. Finally, I would conclude that the extent of law enforcement needs was high enough to weigh in the State’s favor as well. While I agree that Officer Hasler did not have sufficient justification to search the backpack for officer safety reasons, there was ample reason to believe that it might have contained illegal drugs, in whose removal from the streets police have an obvious interest. Under the totality of the circumstances, I would conclude that Officer Hasler’s search of Miller’s backpack was reasonable pursuant to Article I, Section 11.

III. Reopening the Evidence on the Motion to Suppress

Finally, Miller contends that the trial court abused its discretion in allowing the State to reopen its evidence and present additional testimony from Officer Hasler at the suppression hearing.

[T]he granting of permission to reopen a case is within the discretion of the trial court and the decision will be reviewed only to determine whether or not there has been an abuse of that discretion. Gorman v. State (1984), Ind., 463 N.E.2d 254, 257. Among the factors which weigh in the exercise of discretion are whether there is any prejudice to the opposing party, whether the party seeking to reopen appears to have rested inadvertently or purposely, the stage of the proceedings at which the request is made, and whether any real confusion or inconvenience would result from granting the request. Flynn v. State (1986), Ind., 497 N.E.2d 912, 914. Two conditions must be shown to exist to justify a court of appellate jurisdiction in setting aside a ruling made by a trial court in the exercise of judicial discretion: 1) the action complained of must have been unreasonable in light of all attendant circumstances or it must have been clearly untenable or unreasonable; and 2) the action was prejudicial to the rights of the complaining party. Flynn, 497 N.E.2d at 916, citing Allman v. State (1968), 253 Ind. 14, 19-20, 235 N.E.2d 56, 59.
A party should be afforded the opportunity to reopen its case to submit evidence which could have been part of its case in chief. Gorman, 463 N.E.2d at 257. Given [a] claim of insufficient evidence, “the State should have had an opportunity to supply such insufficiency or reopen the case for that purpose, even after it had rested, since a trial is not a game of technicalities, but one in which the facts and truth are sought.” Eskridge v. State (1972), 258 Ind. 363, 369, 281 N.E.2d 490, 493.

Ford v. State, 523 N.E.2d 742, 745-46 (Ind. 1988).

I would conclude that the trial court did not abuse its discretion in allowing the State to reopen its evidence and present further testimony from Officer Hasler. In so concluding, I find the preliminary stage of the litigation to be dispositive. Because a pretrial suppression proceeding determines nothing with finality and retains no viability once the case goes to trial, the State could have simply introduced the additional evidence at that point if the trial court had denied its pretrial request.

Once the matter proceeds to trial, the question of whether the trial court erred in denying a motion to suppress is no longer viable. See Beverly v. State, 801 N.E.2d 1254, 1260 n. 5 (Ind.Ct.App. 2004), trans. denied; Packer v. State, 800 N.E.2d 574, 578 (Ind.Ct.App.2003), trans. denied; Washington [v. State], 784 N.E.2d 584, 586 [ (Ind.Ct.App.2003]. The logic behind this rule is that ‘“a ruling upon a pretrial motion to suppress is not intended to serve as the final expression concerning admissibility.’ ” Joyner v. State, 678 N.E.2d 386, 393 (Ind.1997) (quoting Gajdos v. State, 462 N.E.2d 1017, 1022 (Ind.1984)). In other words, the preliminary ruling on the defendant’s motion to suppress is subject to modification at trial. Id.

Kelley v. State, 825 N.E.2d 420, 424 (Ind. Ct.App.2005). Given that the State could just have presented Officer Hasler’s testimony at trial had the trial court denied its request to reopen its evidence, it would have made little sense to do so. I would therefore conclude that the trial court did not abuse its discretion in this regard.

CONCLUSION

I would conclude that Officer Hasler’s search of Miller’s backpack violated neither the Fourth Amendment of the United States Constitution nor Article I, Section 11, of the Indiana Constitution. I would further conclude that the trial court did not abuse its discretion in allowing the State to reopen its evidence at the suppression hearing. Consequently, I would affirm the trial court in all respects and must therefore respectfully dissent.

      . Because we conclude that the search of Miller's backpack and subsequent discovery of paraphernalia were improper under the Fourth Amendment, we do not address the parties’ arguments on whether the search comported with Article 1, Section 11 of the Indiana Constitution. Further, because we reverse the trial court, we do not discuss whether the trial court abused its discretion by reopening the evidence on the motion to suppress.

        . It is also worth noting that had Miller stayed seated in his vehicle as advised, Officer Hasler would likely have first detected the odor of marijuana emanating from within the vehicle, which would have unquestionably justified a search of the vehicle and its contents. As such, ruling in Miller’s favor would be, in effect, to reward him for refusing to cooperate with law enforcement, an outcome I cannot endorse.