author: BRADFORD, Judge.

text:
    John M. MAYER, Jr., as Special Administrator of the Estate of Paige R. Winn, Deceased, Appellant-Defendant, v. Michael W. DAVIS, Appellee-Plaintiff.
    No. 22A01-1212-CT-570.
    Court of Appeals of Indiana.
    June 21, 2013.

      J. Todd Spurgeon, Crystal G. Rowe, Kightlinger & Gray, LLP, New Albany, IN, Attorneys for Appellant. . ,
    Cara W. Stigger, Kerstin Schuhmann, Kaufman, Stigger & Hughes, Louisville, KY, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

On October 12, 2007, Appellee-Plaintiff Michael Davis was injured when the vehicle he was driving collided with a vehicle that was being driven by Paige Winn. Winn subsequently died of unrelated causes. On September 25, 2009, Davis filed a civil suit against Winn’s Estate, claiming to have suffered personal injuries and lost employment wages as a result of the October 12, 2007 automobile accident. Following a two-day jury trial, the jury awarded Davis $60,000, and the trial court entered a judgment reflecting this amount. Soon thereafter, Winn’s Estate filed a motion to amend the judgment, claiming that Davis’s recovery was limited to the funds available under Winn’s insurance liability policy because, pursuant to the time limitations set forth in the probate code, Davis failed to timely file his claim against Winn’s Estate. The trial court denied this motion.

We conclude that Davis’s claim against Winn’s Estate was not filed .in a timely manner, and, as a result, Davis is barred from recovering any funds from the Estate. Davis’s recovery is limited to funds recovered from Winn’s insurance carrier in the amount of Winn’s insurance liability policy limits. However, the trial court did not abuse its discretion in denying the motion to amend the judgment because the judgment is a valid judgment despite the fact that the excess judgment cannot be collected from Winn’s Estate. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 12, 2007, Davis and Winn were involved in an automobile accident. At the time of the accident, Winn was insured by Affirmative Insurance Company. Winn died on June 8, 2008, from causes unrelated to the October 12, 2007 automobile accident.

Davis requested that the trial court open an estate for Winn. The trial court granted this request. On September 25, 2009, Davis filed a complaint against Winn’s Estate (“the Estate”) claiming that Winn negligently operated her automobile, resulting in the collision of Winn’s vehicle with the vehicle driven by Davis. Davis claimed to have sustained personal injuries and lost wages as a result of the accident.

The case was tried before a jury on August 27 and 28, 2012. Following trial, the- jury returned a verdict in favor of Davis in the amount of $60,000. On August 29, 2012, the trial court entered judgment on the jury verdict.

On September 19, 2012, the Estate filed a “Motion to Correct Error/Motion to Amend Judgment.” Appellant’s App. p. 31. In this motion, the Estate alleged that because Davis failed to file his claim against the Estate within the time limitation set forth in the probate code, he could not recover any funds from the Estate, and his recovery was limited to the amount available under Winn’s insurance liability policy. On November 14, 2012, the trial court denied the Estate’s motion to amend the judgment. This appeal follows.

DISCUSSION AND DECISION

I. Whether the Trial Court Erred in Considering the Estate’s Motion as a Trial Rule 60(B) Motion

Initially, we note that Davis claims that the trial court erred in considering the Estate’s motion to amend the judgment because • the Estate was not entitled to relief under either Trial Rule 50 or 59. For its part, the Estate argued both during the hearing before the trial court and on appeal that its motion to amend the judgment was proper under Trial Rule 59. The Estate also acknowledged that the motion might more appropriately be considered as a motion for relief under Trial Rule 60(B) and requested that the trial court treat it as such during the hearing conducted by the trial court. “[W]e have frequently held that where the purpose of a rule is satisfied, this court will not elevate form over substance.” Parham n Parham, 855 N.E.2d 722, 727 (Ind.Ct.App.2006), trans. denied. The motion contained all information necessary for the court to consider it as a motion for relief under Trial Rule 60(B), and, as such, we will not elevate the form of identifying the wrong trial rules in the motion over the substance of the motion.

Furthermore, the standard of review on appeal is the same regardless of whether the Estate’s motion to amend the judgment is treated as a motion to correct error or a motion for relief under Trial Rule 60(B). See Outback Steakhouse of Fla., Inc. v. Markley, 856 N.E.2d 65, 72 (Ind.2006) (providing that a grant of equitable relief under Indiana Trial Rule 60 is within the discretion of the trial court); French v. French, 821 N.E.2d 891, 895 (Ind.Ct.App.2005) (providing that a trial court has the discretion to grant or deny a motion to correct error). We will reverse the judgment of the trial court only upon a showing that the trial court abused its discretion in denying the motion. See Markley, 856 N.E.2d at 72; French, 821 N.E.2d at 895. 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. French, 821 N.E.2d at 895.

II. Whether Davis Can Recover From the Estate

In challenging the trial court’s denial of its motion to amend the judgment, the Estate contends that the portion of the judgment in excess of Winn’s insurance policy limits is void because Davis’s claim against the Estate was not filed within the permissible timeframe set forth in Indiana Code section 29-1-14-1.

A. Indiana Code § 29-1-14-1

With respect to claims against the estate of a deceased individual, Indiana Code section 29-1-14-1 provides, in relevant part, as follows:

(a) Except as provided in IC 29-1-7-7, all claims against a decedent’s estate, other than expenses of administration and claims of the United States, the state, or a subdivision of the state, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, shall be forever barred against the estate, the personal representative, the heirs, devi-sees, and legatees of the decedent, unless filed with the court in which such estate is being administered within:
(1) three (3) months after the date of the first published notice to creditors; or
(2) three (3) months after the court has revoked probate of a will, in accordance with IC 29-1-7-21, if the claimant was named as a beneficiary in that revoked will;
whichever is later.
(d) All claims barrable under subsection (a) shall be barred if not filed within nine (9) months after the death of the decedent.
* * *
(f) Nothing in this section shall affect or prevent the enforcement of a claim for injury to person or damage to property arising out of negligence against the estate of a deceased tort feasor within the period of the statute of limitations provided for the tort action. A tort claim against the estate of the tort feasor may be opened of reopened and suit filed against the special representative of the estate within the period of the statute of limitations of the tort. Any recovery against the tort feasor’s estate shall not affect any interest in the assets of the estate unless the suit was filed within the time allowed for filing claims against the estate. The rules of pleading and procedure in such cases shall be the samé as apply in ordinary civil actions.

(emphasis added).

B. Nonclaim Statute vs. Statute of Limitations

“[Indiana Code section 29-1-14-1] is not a statute of limitations.” McEwen v. McEwen, 529 N.E.2d 355, 359 (Ind.Ct.App.1988). “It is a nonclaim statute and, as such, it imposes a condition precedent to the enforcement of a right of action ... and precludes recovery when this condition is not met.” Id. “The time element in the statute is a part of the action itself.” Id.

A statute which provides a right of action may also mandate the appropriate procedure for claiming the right. The procedure by which one avails himself of the right of action becomes part of that substantive right.
“The statute is an offer of an action on condition that it be commenced within the specified time, and if the offer is not accepted in the only way in which it can be accepted, by a commencement of the action within the specified time, the action and the right of action . no longer exist and the defendant is exempt from liability.” 51 AM. JUR.2D, supra § 15;. see also -HENRY, supra ch. 16 § 1 at 240.

Burnett v. Villaneuve, 685 N.E.2d 1103, 1107-8 (Ind.Ct.App.1997). The time limitations set forth in Indiana Code section 29-1-14-1 display a clear “legislative intent ... to not merely withhold the remedy, but to take away the right of recovery where a claimant fails to present his claim as provided in the statute.” Rising Sun State Bank v. Fessler, 400 N.E.2d 1164, 1166 (Ind.Ct.App.1980).

The policy behind such statutory interpretation is sound. Unlike a general claim against an individual, a claim - against an estate is against a finite, ascertainable sum of assets. Oftentimes, ■claims against an estate will exceed the assets of the estate, and the competing parties will receive less than the full amount to which they are entitled. This division of assets is not possible until such time as the personal representative is made aware of all the claims against an estate. Therefore, a time limit for claims is appropriate and in order to achieve its purpose is made absolute. When the time limit has expired, the personal representative should be able to divide the estate’s assets to satisfy the property interests of all of the creditors. If creditors were to be allowed to file a claim after the cutoff date, for any reason, a final resolution of the matters of the estate would be impossible.

Burnett, 685 N.E.2d at 1108.

“While an ordinary statute of limitation may be waived and is subject to equitable tolling, a nonclaim statute is not. Id. at 1107.

A nonclaim statute has been described as one which “creates a right of action 'and has inherent in it the denial of a right of action. It imposes a condition precedent-the time element which is a part of the action itself.” Wawrinchak v. United States Steel Corp. (1971) 148 Ind.App. 444, 267 N.E.2d 395.
“A distinction exists between statutes of limitation and special statutory limitations qualifying a given right in which time is-made an essence of the right created and the limitation is an inherent part of the statute out of which the right in question arises, so that there is no right of action whatever independent of the limitation; a lapse of the statutory period operates, therefore, to extinguish the right altogether.” 54 C.J.S.2D Limitations of Actions § 4 (1987).
See also 51 AM.JUR.2D Limitations of Actions § 15 (1970) (“the limitation of time for commencing an action under a statute creating a new right enters into and becomes a part of the right of action itself and is a limitation not only of the remedy but of the right also.”)

Id.

C. Analysis

The Estate argues that the trial court abused its discretion by not amending the judgment to reflect the fact that Davis’s recovery is limited to the amount available under Winn’s insurance liability policy in light of Davis’s failure to open an estate and assert his claim against the Estate within nine months of Winn’s death. In support, the Estate relies on the plain language of Indiana Code section 29-1-14-1. The Estate also relies on the Indiana Supreme Court’s opinion in Indiana Farmers Mutual Insurance Co. v. Richie, 707 N.E.2d 992 (Ind.1999).

In Richie, the Indiana Supreme Court considered the timeliness of a tort claim filed against the estate of a deceased individual. The tort claim arose from an automobile accident which occurred on October 16, 1994. Richie, 707 N.E.2d at 992. The deceased individual died on the day of the accident. Id. Exactly two years later, on October 16, 1996, Richie filed a, “complaint for personal injuries” naming the deceased as a defendant. Id. at 993. The deceased’s automobile liability insurance carrier, Indiana Farmers Mutual Insurance Co. (“Farmers Mutual”), subsequently requested ■ permission to intervene. Id. Farmers Mutual moved for summary judgment, claiming that Richie’s claim - was barred because he failed to bring a claim against the deceased’s estate within the time limit set forth under the probate code. Id. On February 7, 1997, nearly three months after Farmers Mutual filed its motion for summary judgment, Richie asked the trial court to open an estate for the deceased and moved to amend his complaint to include the estate. Id. The trial court granted Richie’s motion to amend his complaint, denied Farmers Mutual’s motion for summary judgment, and certified its order for interlocutory appeal. Id.

Upon review, the Indiana Supreme Court held that pursuant to Indiana Code section 29 — 1—14—1(f), an injured person may bring a tort claim against the estate of a deceased tortfeasor so long as the action is filed within the period allowed by the applicable statute of limitations. Id. at 995. However, the Indiana Supreme Court' further held that any recovery by the claimant is limited to the recovery of the deceased tortfeasor’s available insurance liability proceeds if the tort claim was not brought within the time limits set forth in Indiana Code section 29-1-14-1. Id. In reaching this holding, the Indiana Supreme Court observed:

The statute makes clear that the administration of the estate cannot be disturbed by a Johnny-come-lately tort suit because such a suit cannot reach the assets of the estate. If that is the case there seems to be no reason why a suit involving only insurance proceeds should not proceed as a normal tort suit uncomplicated by the Probate Code.

Id. (emphasis added).

In the instant matter, the record clearly demonstrates that Davis failed to either request that the trial court open an estate for Winn or file a claim against the Estate within the permissible timeframe set forth in Indiana Code section 29-l-14-l(d). As a result, Davis is barred from recovering any funds from the Estate. However, pursuant to the clear language of Indiana Code section 29 — 1—14—1 (f) and the Indiana Supreme Court’s holding in Richie, Davis may recover the funds available under the limits of Winn’s insurance liability policy from Winn’s insurance carrier.

III. Whether the Trial Court Abused its Discretion in Denying the Estate’s Motion to Amend the Judgment to Reflect the Applicable Policy Limits

Having concluded that Davis is barred from recovering from the Estate, and, as a result, is limited to recovering the available policy limits from Winn’s insurance carrier, we next turn our attention to the Estate’s claim that the trial court abused its discretion in denying the Estate’s request to amend the judgment to reflect only the amount available under the applicable policy limits. Despite the Estate’s contention to the contrary, upon review, we cannot conclude that the trial court abused its discretion in denying the Estate’s motion to amend the judgment because the judgment itself is valid despite the fact that any portion of the judgment that is in excess of Winn’s insurance liability policy limits cannot be recovered from the Estate. The Estate has pointed to no authority suggesting that a judgment is void merely because it is unenforceable, and we find none. Accordingly, we affirm the trial court’s order denying the Estate’s motion to amend the judgment.

The judgment of the trial court is affirmed.

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

      . Davis subsequently amended his complaint to add two additional defendants. The claims against these additional defendants were dismissed prior to trial.

      . We note that the parties spend a significant portion of their respective arguments discussing the applicability of this court’s opinion in Pistalo v. Progressive Casualty Insurance Co., 983 N.E.2d 152 (Ind.Ct.App.2012), trans. denied. In Pístalo, the claimant failed to file a timely claim against the deceased’s estate. 983 N.E.2d at 155. The deceased’s estate, however, subsequently assigned to Pístalo its interest in the recovery of potential proceeds from the deceased's insurance carrier. Id. at 156. Pístalo brought suit against the deceased’s insurance carrier, alleging that the insurance carrier had committed a bad faith failure to settle at policy limits. Id. This court found that the assignment was valid and that Pístalo could bring suit against the insurance carrier, and, upon a showing of bad faith, the insurance carrier would be liable for the excess judgment in its entirety. Id. at 160. Pístalo, however, is not applicable to and is easily distinguishable from the instant matter. Unlike in Pístalo, the instant appeal stems from a suit against the deceased tortfeasor’s estate seeking to establish liability on behalf of the deceased tortfeasor. It does not raise a claim of bad faith against Winn’s insurance carrier, and the record does not include any evidence relating to settlement discussions or bad faith by the deceased's insurance carrier.


source: Caselaw Access Project

author: MAY, Judge.

license: Public Domain

text:
    GASSER CHAIR COMPANY, INC., Appellant-Defendant, v. Marlene J. NORDENGREEN, Appellee-Plaintiff, Horseshoe Hammond, LLC, d/b/a Horseshoe Casino, Appellee-Third Party Defendant.
    No. 45A03-1210-CT-435.
    Court of Appeals of Indiana.
    June 21, 2013.

      Julie J. Havenith, Travelers Staff Counsel Office, Merrillville, IN, Attorney for Appellant.
    Stacy J. Vasilak, Querry & Harrow, Merrillville, IN, Attorney for Horseshoe Hammond, LLC.
   OPINION

MAY, Judge.

Marlene Nordengreen sued Horseshoe Casino and Gasser Chair Company, alleging she. was injured at Horseshoe while using a chair Gasser manufactured. The trial court granted summary judgment for Horseshoe but denied Gasser’s motion. Gasser appeals, arguing the trial court should not have granted summary judgment for Horseshoe because Horseshoe did not provide evidence the Gasser chair was the proximate cause of Nordengreen’s injury; it did not apply the correct standard of care by Horseshoe to its invitees; and there were issues of fact as to Horseshoe’s knowledge of a defect on its premises. We affirm the summary judgment for Horseshoe.

On cross-appeal, Horseshoe argues the trial court erred to the extent it determined certain third-party claims Horseshoe made against Gasser became moot by virtue of the summary judgment for Horseshoe. We agree and remand for consideration of those claims.

FACTS AND PROCEDURAL HISTORY

In September of 2009, Nordengreen was a patron at the Horseshoe Casino in Hammond. She sat on a chair at a slot machine and the chair “came down and caught the back of [her] leg.” (App. at 94.) Horseshoe bought 3300 chairs, including Nordengreen’s, from Gasser. The chairs feature “[p]layer adjustable seat height,” (id. at 154), and use a gas cylinder for the height adjustment.

The gas cylinders eventually wear out, “like the shock absorbers on your car.” (Id. at 156.) How long the cylinder lasts depends on how often it is used, but the cylinders have a one-year warranty. Gasser provided Horseshoe with general maintenance instructions to inspect the chairs, including the gas cylinders, annually. Horseshoe inspected them daily. Gasser suggested a visual inspection and a pressure test: “basically sit on them and push down on them to be certain that they’re holding the pressure.” (Id. at 159.) Gasser gave Horseshoe no warning about what might happen if a gas cylinder failed. Gasser’s president stated if the gas cylinder fails, the chair “[generally doesn’t collapse all at once.” (Id. at 163.)

Nordengreen’s chair was inspected immediately after the accident. It appeared the gas cylinder had failed, and the chair was removed from service so it could be repaired. It was repaired before Gasser could inspect it.

DISCUSSION AND DECISION

When reviewing a grant or denial of summary judgment, our standard is the same as it was for the trial court: whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Haub v. Eldridge, 981 N.E.2d 96, 101 (Ind.Ct.App.2012). Summary judgment should be granted only if the evidence sanctioned by Indiana Trial Rule 56(C) shows there is no genuine issue of material fact and the moving party deserves judgment as a matter of law. Id. There is a genuine issue of material, fact when facts concerning an is-, sue that would dispose of the litigation are in dispute or where the undisputed facts can support conflicting inferences on such an issue. Id. All evidence must.be construed in favor of the opppsing party, and all doubts as to the existence of a material issue must be resolved against the moving party. Id. However, once the movant has carried its initial burden of going forward under Trial Rule 56(C), the nonmovant must come forward with sufficient evidence demonstrating the existence of genuine factual issues that should be resolved at trial. Id. A fact is material if its resolution would affect the outcome of the case, and an issue is genuine if a trier of fact is required to resolve the parties’ differing accounts of the truth or if the undisputed facts support conflicting reasonable inferences. In re Paternity of G.W., 983 N.E.2d 1193, 1196 (Ind.Ct.App.2013).

1. Horseshoe’s Knowledge of a Dangerous Condition on its Premises

The trial court’s summary judgment in favor of Horseshoe was premised on evidence Gasser knew "the gas cylinders were subject to failure within a year, but Horseshoe had not been warned about that. Nor did Gasser warn Horseshoe about what might happen if the gas cylinder failed. Other Gasser chairs at Horseshoe had “failed” before the Nor-dengreen incident, (App. at 12), but only one-half of one percent of the 3300 chairs Horseshoe bought from Gasser “appeared to have issues with the gas cylinders.” (Id.) No patrons had been injured by gas cylinder problems. Therefore, the trial court determined, there was “no evidence from which it can be reasonably inferred that Horseshoe had actual or constructive notice that the chair upon which [Norden-green] was seated at the time of her alleged injury presented a dangerous condition to her.” (Id. at 12-13.)

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if he a) knows or by the exercise of reasonable care would discover the condition, and should realize it involves an unreasonable risk of harm to such invitees; b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and; c)" fails to exercise reasonable care to protect them against the danger. Burrell v. Meads, 569 N.E.2d 637, 639-40 (Ind.1991), reh’g denied. A defendant is entitled to summary judgment by demonstrating that the undisputed material facts negate at least one of the elements of the plaintiffs claim. McCraney v. Gibson, 952 N.E.2d 284, 288 (Ind.Ct.App.2011) trans. denied. The designated evidence negated the element of Horseshoe’s knowledge of the condition.

Gasser first asserts, without citation to authority, that

[b]efore the trial court could properly reach a conclusion regarding actual or constructive notice on the part of Horseshoe of a defect in the chair as a matter of law, there first had to be no genuine issue of material fact that a defect in the design or manufacture of the chair was in fact the sole proximate cause of [Nor-dengreen’s] accident rather than another cause such as negligent inspection or maintenance,of the chair by Horseshoe as alleged by [Nordengreen].

(Appellant’s Br. at 9.)

We decline to accept Gasser’s apparent premise that evidence of one element of a tort is necessarily required on summary judgment in order to negate a different element. Specifically, we decline to hold a premises owner’s knowledge of a dangerous condition on its premises cannot be determined without first knowing the dangerous condition was the “sole proximate cause,” (id.), of an injury. As ,we noted in McCraney, 952 N.E.2d at 288, a defendant is entitled to summary • judgment if it demonstrates the undisputed material facts negate a single element of the plaintiffs claim.

The question before us, then, is whether Horseshoe negated the element of knowledge of a dangerous condition on its premises, and we decline Gasser’s invitation to require in addition that Horseshoe offer proof regarding any other element. The trial court noted evidence other chairs at Horseshoe had failed before the incident involving Nordengreen, but Horseshoe received 3300 chairs from Gasser and only one-half of one percent “appeared to have issues with the gas cylinders on them.” (App. at 12.) None of the problems with those chairs involved injuries to patrons. The trial court found no evidence from which it could be reasonably inferred that Horseshoe had actual or constructive knowledge the chair Nordengreen was using “presented a dangerous condition to her.” (Id. at 18.)

Gasser asserts “the trial court held that there were other problems with the chair prior to Plaintiffs accident, and that Horseshoe knew of these problems.” (Appellant’s Br. at 24) (emphasis added); Gasser then states, without explanation or citation to authority, “[t]his alone constitutes evidence of actual or constructive notice of a danger on [Horseshoe’s] premises.” (Id. at 24.)

Gasser has waived this allegation of error. Bald assertions made in an appellate brief are not to be considered in determining whether there is a genuine issue of fact, Pitcock v. Worldwide Recycling, Inc., 582 N.E.2d 412, 416 (Ind.Ct.App.1991), and on review, we will not search the record to find a basis for a party’s argument. Young v. Butts, 685 N.E.2d 147, 151 (Ind.Ct.App.1997).

Notwithstanding the waiver, we cannot say the evidence gives rise to a genuine issue of fact as to Horseshoe’s knowledge the chair represented a dangerous condition on its premises. An invitor is not the insurer of the invitee’s safety, and before liability may be imposed on the invitor, it must have actual or constructive knowledge of the danger. Schulz v. Kroger Co., 963 N.E.2d 1141, 1144 (Ind.Ct.App.2012). As explained above, Gasser has not demonstrated Horseshoe had actual knowledge Nordengreen’s chair was dangerous.

Nor did it have .constructive knowledge. There is constructive knowledge when a condition has existed for such a length of time and under such cireum-stances that it would have been discovered in time to have prevented injury if the invitor had used ordinary care. Id.. In Schulz, the designated evidence reflected Schulz slipped on liquid at the back of the store. The time between her fall and a Kroger employee’s arrival at the place where she fell was tqn minutes at most, and ten minutes before she fell, the floor was clean and dry. “Short of imposing a strict liability standard or mandating an employee’s presence in every aisle at all times, we conclude that there is no genuine issue of fact in the case before us that Kroger did not have constructive knowledge of the hazardous condition.” Id. We affirmed summary judgment for Kroger. Id.

In the case before us, the evidence was that Horseshoe inspected the chairs daily. There had been no reported problems with the chair Nordengreen used. When a gas cylinder fails, the chair generally “doesn’t collapse all at once.” (App. at 163.) Instead, when someone sits on it, “it starts to drift downward.” (Id.) Gasser did not warn Horseshoe a gas cylinder could suddenly fail, or warn it about what might happen if a gas cylinder failed. While the trial court noted there had been unspecified “issues” with gas cylinders on one-half of one percent of the chairs at Horseshoe, none of the problems had resulted in injuries. We cannot find a genuine issue of fact as to Horseshoe’s knowledge the chair was a dangerous condition on its premises, and summary judgment for Horseshoe was not error.

2. Mootness

After Nordengreen brought her action, Horseshoe filed a third party complaint against Gasser alleging negligence, breach of contract, and breach of warranty. The trial court did not address those matters in the summary judgment order now before us, but in a footnote it said the “practical effect of this Order granting Horseshoe’s Motion, for Summary Judgment is to render moot Horseshoe’s Third-Party Complaint against Gasser.” (App. at 13 n. 1.) On cross-appeal, Horseshoe argues that was error because its breach of contract and breach of warranty claims against Gássér remain. We agree, and remand so the trial court may resolve’ the remaining issues raised in Horseshoe’s third-party complaint.

Affirmed in part and remanded.

BAKER, J., and MATHIAS, J., concur.

      . Gasser presents these as three discrete issues. As explained below, no evidence of proximate cause was required. The resolution of all three issues therefore turns on the determination whether there is an issue of fact as to Horseshoe’s knowledge the Gasser chairs amounted to a dangerous condition on its premises.

      . Gasser offers no citation to the record to support this statement regarding "the chair,” and we can find no such trial court "holding.” The trial court did note evidence “other chairs at the casino had ■ failed” before the incident involving Nordengreen, (App. at 12) (emphasis added), but only one-half of one percent of the Gasser chairs Horseshoe bought "appeared to have issues with the gas cylinders” and no injuries to patrons had resulted. (Id.) We find nothing in the trial court's Order that states, or even suggests, there were problems of which Horseshoe was aware with the chair Nordengreen was using, and we admonish counsel to refrain from so misrepresenting the record. See Young v. Butts, 685 N.E.2d 147, 151 (Ind.Ct.App.1997) (noting a number of affirmative misrepresentations by Young’s counsel of the evidence in the record, "which misrepresentations are particularly offensive because they would, if true, directly affect the propriety of the trial court grant of judgment on the evidence.”) The same is true of Gasser’s statement "there were other problems with the chair prior to Plaintiff's accident, and that Horseshoe knew of these problems.”

      . Gasser characterizes this and certain other statements as "unsupported, self-serving assertions” (Appellant’s Br. at 12) on which a summary judgment should not be based. We have held it is error to base summary judgment solely on a party’s self-serving affidavit "when evidence before the court raises a genuine issue as to the affiant's credibility.” Insuremax Ins. Co. v. Bice, 879 N.E.2d 1187, 1190 (Ind.Ct.App.2008), trans. denied. Gasser has not presented evidence disputing the credibility of Horseshoe’s affiant, nor, as in Bice, “is there inconsistent or evasive language in the designated evidence.” Id. We decline Gasser’s invitation to hold a statement in an affidavit must be disregarded as "self-serving” just because it might support the opposing party’s position.

      . Gasser argues Horseshoe’s attempt “to now appeal the trial court’s dismissal ” of the third-party claims is time-barred because Horseshoe "did not appeal the dismissal of its claims” within thirty days as required by rule. (Appellant’s Reply Br. at 11) (emphases added). Gasser directs us to nothing in the record that indicates there was a trial court order "dismissing” the third-party complaint. We decline to hold the trial court’s statement in a footnote about the “practical effect” of its summary judgment order amounts to a final order of dismissal that Horseshoe could have appealed.


text:
    Michael HOWARD, Appellant-Petitioner, v. ALLEN COUNTY BOARD OF ZONING, Appeals and Alvin Schmucker, Appellee-Respondent.
    No. 02A04-1301-PL-27.
    Court of Appeals of Indiana.
    June 24, 2013.

      Andrew P. Simmons, Van Gilder & Trzynka, P.C., Fort Wayne, IN, Attorney for Appellant.
    Robert W. Eherenman, Haller & Colvin, P.C., Fort Wayne, IN, Attorney for Appel-lee Allen County Board of Zoning Appeals.
   OPINION

BRADFORD, Judge.

Appellant-Petitioner Michael Howard appeals the trial court’s dismissal of his petition for judicial review of the decision by Appellee-Respondent the Allen County Board of Zoning Appeals (“the Board”) to grant a use variance for property owned by Appellee-Respondent Alvin Schmucker. The trial court determined that it lacked jurisdiction to hear the case because Howard failed to timely file the board record or timely request an extension of the filing deadline. Because the timing of filing the board record does not implicate matters of jurisdiction, we conclude that the trial court’s determination was clearly erroneous. But, because we interpret Indiana Code section 36-7-4-1613 to require dismissal where no materials supporting judicial review of the petitioner’s claim are timely filed and an extension of the filing deadline is not timely requested, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

On July 19, 2012, the Board approved a use variance for Schmucker’s property, allowing him to operate a tire repair business in an Agricultural Zoning District. On August 17, 2012, Howard, a nearby property owner, petitioned for judicial review of the Board’s decision. In his petition, Howard argued that Schmucker presented insufficient evidence of “unnecessary hardship” and “condition peculiar to the property” as required by Indiana’s variance approval statute. Ind.Code § 36-7-4-918.4.

On August 27, 2012, pursuant to Indiana Code section 36-7-4-1613, Howard requested that the Board produce a certified record of all materials relevant to its decision. The Board responded by immediately hiring an outside firm to prepare a transcript of the public hearing and business meeting on Schmucker’s use variance application. Howard acknowledged that he had until September 17, 2012, thirty days after filing his petition, to file the board record or request an extension of the filing deadline. As of September 17, 2012, neither the record nor an extension request had been submitted.

On September 25, 2012, Schmucker filed a motion to dismiss based on Howard’s failure to timely file the board record. On September 26, 2012, Howard belatedly moved for an extension of the filing deadline. The Board filed an objection to Howard’s motion for an extension and joined Schmucker’s motion to dismiss.

On October 1, 2012, Howard filed an amended petition for judicial review. Howard’s amended petition was identical to the original, except that it sought a thirty-day extension to file the board record. On October 9, 2012, the trial court denied Howard’s original motion for an extension, and the Board filed an objection to the amended petition the following day. When the record was completed, the Board’s attorney sent it to Howard, who finally filed it with the court on October 12, 2012. On December 13, 2012, the trial court held a hearing on Schmucker’s motion to dismiss and the Board’s objection to Howard’s amended petition. On December 20, 2012, the trial court dismissed Howard’s petition with prejudice, holding that it lacked jurisdiction to hear Howard’s petition due to his failure to timely file the board record or timely request an extension of the filing deadline.

DISCUSSION AND DECISION

Howard argues that the trial court committed clear error in dismissing his petition based on lack of jurisdiction. “The standard of appellate review of rulings on motions to dismiss on jurisdictional grounds depends on whether the trial court resolved disputed facts, and if so, whether the trial court conducted an evi-dentiary hearing or ruled on a paper record.” Wayne Cnty. Prop. Tax Assessment Bd. of Appeals v. United Ancient Order of Druids-Grove No. 29, 847 N.E.2d 924, 926 (Ind.2006) (citing GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind.2001)). Where, as here, the facts before the trial court are not in dispute, the question of jurisdiction is one of law, and no deference is afforded the trial court’s conclusion. Magness, 744 N.E.2d at 401.

Indiana Code sections 36-7-4-1600 through 36-7-4-1616 (the “1600 Series”) “establishf ] the exclusive means for judicial review of zoning decisions.... ” Ind. Code § 36-7-4-1601(a). At issue in this case is section 1613, which provides:

(a) Within thirty (30) days after the filing of the petition, or within further time allowed by the court, the petitioner shall transmit to the court the original or a certified copy of the board record for judicial review of the zoning decision. ...
' (b) An extension of time in which to file the record shall be granted by the court for good cause shown. Inability to obtain the record from the responsible board within the time permitted by this ■ section is good causé. Failure to file the tecord within 'the time permitted by this subsection, including any extension period ordered by the court, is cause for dismissal of the petition for review by the court, on its own motion, or on petition of any party of record to the proceeding.

Ind.Code § 36-7-4-1613. “Only a person who qualifies under ... section 1613 ... is entitled to judicial review of a final zoning decision.” Ind.Code § 36-7-4-1602(b)(4).

Because the judicial review provisions of the 1600 Series are materially identical to their analogs in the Administrative Orders and Procedures Act (“AOPA”), we are compelled to conclude that the legislature had the same intent in enacting both. We therefore interpret these respective provisions in the same manner and rely on AOPA case law below. See Habig v. Bruning, 613 N.E.2d 61, 64 (Ind.Ct.App.1993).

I. Whether the Trial Court Lacked Jurisdiction as a Result of Howard’s Failure to Timely File the Board Record

Howard claims that his failure to timely file the board record was an error of procedure, not of jurisdiction. We agree. “Like the rest of the nation’s courts, Indiana trial courts possess two kinds of ‘jurisdiction! ]’ (1) subject matter jurisdiction, “the power to hear and determine cases of the general class to which any particular proceeding belongs[,]” and (2) personal jurisdiction, the “require[ment] that appropriate process be effected over the parties.” K.S v. State, 849 N.E.2d 538, 540 (Ind.2006). “The timing of filing the agency record implicates neither....” Wayne Cnty., 847 N.E.2d at 926. “Other phrases ... like “jurisdiction over a particular ease,” confuse actual jurisdiction with legal error[.]” K.S., 849 N.E.2d at 540. The trial court’s determination that it lacked jurisdiction was clearly erroneous. However, because we conclude that Indiana Code section 36-7-4-1613 required dismissal on non-jurisdictional grounds, we affirm the trial court’s judgment.

II. Whether the 1600 Series Requires Dismissal of a Petition Where No Materials Supporting Judicial Review Are Timely Filed

Howard contends that dismissal is “not mandatory” under the 1600 Series, relying on this court’s recent decision in Lebamoff Enterprises, Inc. v. Indiana Alcohol & Tobacco Commission, 987 N.E.2d 525, 528-29 (Ind.Ct.App.2013). In Leba-moff, we recognized that “cause for dismissal” under AOPA “does not mean that the case must be dismissed;” rather, the trial court has discretion in the matter. Lebamoff Enters., Inc. v. Ind. Alcohol & Tobacco Comm’n, 987 N.E.2d at 529-30. But, there, we reversed the trial court’s dismissal of a petition for failure to timely file the agency record because materials submitted with the petition were sufficient for judicial review of the question of law at issue. Id. at 530-31. The only material submitted with Howard’s petition for judicial review was a list of individuals who presented evidence at the board .hearing— neither the transcript of that evidence nor the Board’s findings and conclusions thereon were included. Because Howard’s petition challenges the sufficiency of the evidence supporting the Board’s decision, this lone exhibit does not support judicial review of Howard’s claim.

Howard suggests that, under Le-bamoff, the trial court’s discretion with regard to untimely filings permits the court “to accept a belated record even where an official, extension has not been granted.” Id. at 528-29. We conclude that it does not. “[T]he statute does not excuse untimely filing or allow nunc pro tunc extensions.” Ind. Family & Soc. Servs. Admin. v. Meyer, 927 N.E.2d 367, 370-71 (Ind.2010). “[A]n extension must be granted by the court ... in order for a petitioner to transmit the agency record more than thirty days after filing a petition,” Lebamoff, 987 N.E.2d at 528, and an extension may be granted “only if the request is made during the initial thirty days following the filing of the petition for review or within any previously granted extension.” Wayne Cnty., 847 N.E.2d at 927.

For the reasons explained above, we reject Howard’s claim under Trial Rule 15 that the relation back doctrine forgives the tardiness of his second belated extension request, which Howard included in his amended petition for judicial review. Moreover, “[a]fter a filing deadline has elapsed, a party is not permitted to amend a petition to cure its procedural defects.” Corcoran v. State, 845 N.E.2d 1019, 1022 (Ind.2006).

The judgment of the trial court is affirmed. '

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

      . As we acknowledge in Lebamoff, the Indiana Supreme Court has expressed even division on the issue of whether a trial court may proceed with a case where .the agency record was not timely filed, but the submitted materials contained sufficient facts on which a-determination could be made. Ind. Family & Soc. Servs. Admin. v. Meyer, 927 N.E.2d 367, 372 (Ind.2010) (2-2 decision) (Sullivan, J., not participating).

      . This idea was merely contemplated, not established, in Lebamoff.'


author: BAKER, Judge.

text:
    Tequita RAMSEY, Appellant-Plaintiff, v. LIGHTNING CORPORATION, Appellee-Defendant.
    No. 49A02-1209-CC-705.
    Court of Appeals of Indiana..
    July 2, 2013.

      Zachary T. Rosenbarger, Wuertz Law Office, LLC, Indianapolis, IN, Attorney for Appellaht.
    William T. Niemier, New Palestine, IN, Attorney for Appellee.
   OPINION

BAKER, Judge.

In this case of first impression, we are confronted with the issue on interlocutory appeal as to whether the trial court abused its discretion in ordering the temporary decertification of a class, in an action brought by appellant-plaintiff Tequita Ramsey against the appellee-defendant Lightning Corporation, d/b/a First Class Car Company (Lightning). Ramsey claimed that she had the right to maintain a class action suit to recover vehicle document preparation fees that Lightning charged. Ramsey asserts that the. trial court erred in determining that she lacked standing to bring her lawsuit as a class action, that the class was improperly de-certified, and that she could not be a representative of the class.

Notwithstanding these contentions, Indiana Trial Rule 23 contemplates that a class action certification is subject to change before a decision is made on the merits. And there is nothing in the rule altering this standard when the trial court conditionally certifies a class action. Here, the evidence established, among other things, That- Ramsey is not a member of the defined class, and therefore may not serve, as a class representative. Thus, we cannot say that, the trial court erred in decertifying the class. As a result, we affirm the trial court’s judgment.

FACTS

On Juñe -27, 2009, Ramsey agreed to purchase a vehicle from Lightning for $1,791.40. The price included $1320 for the vehicle, $92.40 in sales tax, a “doc fee” of $199, and a warranty in the amount of $180. - Ramsey paid $1400 to Lightning at the'time of the sale and agreed to make payments on the remaining $391.40.

Shortly after Ramsey drove the vehicle from the lot, she returned to Lightning that same day because she was having mechanical difficulties with the car. Although Ramsey requested a refund, Lightning refused to return her money.

Ramsey left the vehicle on the lot and subsequently. filed a complaint in small claims court .on May 28, 2010. After receiving several responses from Lightning, Ramsey amended her complaint to include a class action .claim. Specifically, Ramsey alleged that Lightning charged a $199 document preparation fee on all of its sales in violation of Indiana..Code section 9-23-3-6.5. This statute essentiajly provides that it is an unfair. practice for. an automobile dealer to require a motor vehicle purchaser to pay a document preparation fee. unless certain conditions are met. Ramsey alleged that these certain conditions were not satisfied here. In response, Lightning filed a counterclaim, seeking the unpaid balance of $391.40, pre-judgment interest, attorney fees, and costs.

Upon leave of the trial court, Ramsey filed an amended complaint and a motion for class certification. The trial court conducted a hearing on Ramsey’s motion for class certification on January 12, 2012. The trial court admitted Lightning’s discovery responses • into evidence, which demonstrated that the same document preparation fee was charged on every sale and that Lightning made nearly one hundred sales per year.

Ramsey appeared at the hearing and testified about her appointment as class representative. After taking the matter under advisement for nearly six weeks, the trial court certified the class and appointed Ramsey as class representative on February 27, 2012. The certified class was defined as “any natural person who purchased a vehicle from Lightning in the preceding six years, and who paid a document preparation fee.” Appellant’s App. p. 71-73. The trial court ordered Lightning to provide a class list within two weeks of the date of the order.'

Lightning neither produced the class list nor took any affirmative action^ for over two month's. Thereafter, Lightning filed a motion to modify the class certification order. Lightning argued'' that Ramsey could not be an appropriate class representative bécause the $1400 that Ramsey actually paid toward the purchase price of $1791.40 did not include the portion due and owing for the $199 document preparation fee at issue. However, Ramsey asserted that Trial Rule 23 does not allow temporary decertification and that Ramsey remained an appropriate class representative.

At the conclusion of a hearing on the motion that commenced on August 3, 2012, the trial court ordered that the class be temporarily decertified. The trial court stated on the record that “[t]he issue with respect to class, document preparation fees and whether those are appropriate, you know, I don’t know how, you know, the Defendant does business, but from my experience, I think most car dealers are doing the same thing.” Appellant’s App. p. 156.

Despite what the trial court stated at the hearing, it did not issue a written order that “temporarily decertified” the class. Instead, the trial court’s written order denied the motion for class certification.- The written order appeared to relate back to the original class certification hearing that was conducted in January 2012, where it was stated that “this matter came before the Court upon a motion for class action-” Appellant’s App. p. 7.

Ramsey then filed a motion to correct error, seeking to have the trial court clarify the apparent conflict between its oral statement on the record and the written order. The trial court did not clarify either of its orders in a prompt matter, and because Ramsey is concerned that her options for redress could be limited depending on how the trial court construes the allegedly conflicting orders, - Ramsey brings this interlocutory appeal.

DISCUSSION AND DECISION

Ramsey maintains that the trial court misinterpreted the law when it decertified the class. More specifically, Ramsey maintains that the trial court erroneously determined that the document preparation fee of a vehicle is not an appropriate issue for class action litigation. Ramsey further contends that she has standing to be the class representative in this matter because, regardless of whether the $199 document preparation fee was included in the amount she already paid to Lightning, she has been sued for the remaining balance due under the sales agreement.

In resolving this issue, we note that the determination of whether an action is maintainable as a class action is committed to the trial court’s sound discretion. JK Harris & Co., LLC v. Sandlin, 942 N.E.2d 875, 885 (Ind.Ct.App.2011), trans. denied. In reviewing" the trial court’s ruling, we employ an abuse of discretion standard, unless there is a misinterpretation of the law. Id.; see also Assoc. Med. Networks, Ltd. v. Lewis, 824 N.E.2d 679, 682 (Ind.2005). In determining whether an abuse of discretion occurred, we will not reweigh the evidence and consider only the evidence most favorable to the trial court’s determination and all the reasonable inferences to be drawn therefrom. McCart v. Chief Exec. Officer in Charge, Indep. Fed. Credit Union, 652 N.E.2d 80, 83 (Ind.Ct.App.1995). We will affirm the trial court’s ruling if there is substantial evidence to support it. JK Harris & Co., 942 N.E.2d at 885.

Indiana Trial Rule 23 C(l) states in part that “[t]he court, upon hearing or waiver of hearing, shall determine by order whether [a class action] is to be so maintained. An order under this subdivision may be conditional and may be altered or amended before the decision on the merits.” A companion rule, Trial Rule 23(D) states that

[i]n the conduct of actions to which this rule applies, the court may make appropriate orders:
(1) Determining the course of proceedings ■...
(2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner - as the court may direct to some or ■ all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity. of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defense, or otherwise to come into the action;
(3) imposing conditions on the representative parties or on intervenors;
(5) dealing with similar procedural matters. ■
The orders may be combined- with an order under Rule 16, and may be altered or amended as may be desirable from time to time....

Although we -have not found a case directly on point in support of Lightning’s argument, Trial Rule 23 supports the conclusion that the trial court may amend, alter, modify and even revoke or rescind a previous order certifying a class. In our view, there is no logical reason to hold that the trial court may never revoke or rescind such an order. To hold otherwise would mean that once a class action is certified, the class cannot be later decertified, even if subsequently discovered facts and evidence suggest the class should not have been certified in the first instance.

Nonetheless, Ramsey argues that the trial court is prohibited from decertify-ing a class that has been previously certified without first providing notice to all class members. However, to the extent that Indiana Trial Rule 23 contemplates providing notice to all class members or potential unnamed class members upon the dismissal of a class action, we note that notice of the decertification of the class in this instance could not be accomplished because such a list had not been prepared.

Indeed, the record demonstrates that Lightning does not have the information or ability, without imposing an undue hardship and burden upon it, to prepare the list of class members as required by the order that certified the class. Appellant’s App. p. 65-69. More specifically, Ramsey requested the trial court to certify a class consisting of:

a. All natural persons;
b. Who purchased a motor vehicle from Lightning ...
c. Who paid a document preparation fee that violated I.C. § 9-23-3-5; and
d. who did so on or after a date six (6) years prior to this filing.

Appellant’s App. p. 66.

Had the issue of preparing a class list been addressed prior to the decertification of the class, Lightning could have explained that it has business records regarding prior vehicle sales, but not for six years before the date that Ramsey purchased her vehicle from Lightning. Id. at 84. Prior to the hearing on Ramsey’s motion for class certification, Lightning was not requested to prepare a list of its prior customers and it had no notice that any such request would be made. Moreover, the requirement for Lightning to prepare such a class list was not discussed during the hearing on January 12, 2012, which concerned Ramsey’s motion for class certification.

It was also established that Lightning’s counsel contacted Ramsey’s attorney and explained why Lightning could not produce a complete list of class members. Appellant’s App. p. 79. Lightning offered to resolve this matter by permitting Ramsey, or any representative, to inspect Lightning’s business records at its place of business to enable her to- prepare a customer list. However, Ramsey refused Lightning’s offer. Id. at 135, 149. As a result, no list of class members or potential class members exists, and the trial court could not have provided notice to such persons of the decertification of the class.

We also note that the trial court granted Ramsey’s request and issued an order defining the class exactly as she had requested. The “class” consists of only those individuals who actually “paid” a document preparation fee in alleged violation of Indiana Code section 9-23-3-6.5. However, Ramsey is not a member of the class as she defined it. Indeed, Ramsey has not paid a document preparation fee in the underlying transaction. As a result, the trial court properly concluded that Ramsey lacked standing to serve as the class representative.

However, even though Ramsey did not satisfy the above requirements, Ramsey directs us to Schloss v. City of Indianapolis, 553 N.E.2d 1204 (Ind.1990), for the proposition that she has standing to serve as the representative of the class because she is in “immediate danger of sustaining some direct injury as a result of the conduct at issue.” Appellant’s Br. p. 16. However, Schloss is distinguishable from the instant case.

In Schloss, the parties stipulated that the plaintiff, as an individual customer, would suffer a direct injury as a result of excessive franchise fees that were paid for cable television. Standing was found based on the parties’ stipulation. 553 N.E.2d at 1206. Even more compelling, a federal statute granted Schloss standing. Id.

Neither of these factors existed here. Rather, Ramsey states that because Lightning filed a counterclaim seeMng the unpaid balance of $391.40, she is in immediate danger of paying this amount and that she should be presumed to have paid this amount or the items for which this amount would cover as if she had actually paid those fees. In our view, Ramsey’s argument is only speculative. Ramsey should not be permitted to breach her contract with Lightning by failing to pay the amounts required under the purchase documents, and then when Lightning sues her for non-payment, be conferred the rights and benefits as if she had satisfied her obligations under the contract.

We further note that in Bowen v. Sonnenburg, 411 N.E.2d 390 (Ind.Ct.App.1980), a guardian ad litem over one or more patients in a state hospital lacked standing to represent a class of patients who sought compensation for services that they provided within such institutions. More particularly, it was determined that the trial court erred in permitting the guardian ad litem to intervene as a class representative. Id. at 396. It was observed that “since [the guardian ad litem] is clearly not a member of the proposed class of patient-workers, he was otherwise ineligible to participate as a party plaintiff in the cause.” Id.

It is apparent that the trial court applied the same rationale and reached the same conclusion here. Ramsey is not a member of the defined class, and she therefore may not serve as a class representative.

In sum, the facts and arguments presented at the August 2, 2012 hearing upon Ramsey’s motion to compel and Lightning’s motion to modify, and the reasonable inferences to be drawn therefrom, establish that the trial court acted within its discretion in determining the class could be decertified and that Ramsey lacked standing to serve as the class representative. For all these reasons, we affirm the trial court’s judgment in decertifying the class.

The judgment of the trial court is affirmed.

MAY, J., and MATHIAS, J., concur.

      . At the time of the transaction, Indiana Code section 9-23-3-6.5 provided: "It is ári unfair practice for a dealer to require a purchaser of a motor vehicle as a condition of the sale and delivery of the motor vehicle to pay a document preparation fee, unless the fee:
      (1) reflects expenses actually incurred for the preparation of documents;
      (2) was affirmatively disclosed by the dealer;
      (3) was negotiated by the dealer and the purchaser;

        (4) is not for the preparation, handling-, or service of documents that are incidental to the extension of credit; and
      (5) is set forth on a buyer's order or similar agreement by a means other than preprinting.


author: ROBB, Chief Judge.

text:
    Keion GADDIE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1212-CR-953.
    Court of Appeals of Indiana.
    July 3, 2013.
    Rehearing Denied Aug. 22, 2013.

      Suzy St. John, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

Keion Gaddie appeals his conviction, following a bench trial, of resisting law enforcement, a Class A misdemeanor. Gaddie raises the following issue for our review: whether the evidence was insufficient to sustain his conviction because he was free to disregard law enforcement in what was a consensual encounter. Concluding that Gaddie had no duty to stop when law enforcement ordered him to do so, we reverse.

Facts and Procedural History

On August 4, 2012, Indianapolis Metropolitan Police Officer Jeffrey Newlin responded.to a report of a disturbance at a residence on 10th Street. When he arrived, he saw six to eight people standing on the front porch and in the front yard, yelling and screaming. He saw several other people, one of whom was Gaddie, walking on the side of the residence towards the back. He tried to “corral” everyone to the front yard to keep an eye on them." Transcript at 8. Everyone went to the front yard, except for Gaddie, who was walking towards an alley. When back-up arrived, Officer Newlin headed toward the back, told Gaddie he was a police officer,' and ordered him to stop. Gaddie was approximately forty-five to fifty-five feet away from Officer Newlin and continued walking. Officer Newlin followed him and repeated his order to stop; Gaddie looked back at him two or three times but did not stop. Another police officer intercepted Gaddie the next street over approximately thirty-five to forty-five seconds later.

Gaddie was charged with resisting law enforcement, a Class A misdemeanor. At the bench trial, Officer Newlin testified that he was corralling people in the front yard for the purpose of “Officer safety and for their safety.” Id. at 17. He further testified that he had not seen Gaddie or anyone else commit a crime prior to ordering him to stop nor was Gaddie under arrest when he ordered him to stop. The court found Gaddie guilty as charged and ordered him to perform forty-eight hours of community service work. Gaddie now appeals. Additional facts will be provided as necessary.

Discussion and Decision

I. Standard of Review

Our standard of review for sufficiency claims is well-settled. We do not reweigh the evidence or assess witness credibility for ourselves. Boggs v. State, 928 N.E.2d 855, 864 (Ind.Ct.App.2010), trans. denied. We consider only the probative evidence and reasonable inferences supporting the verdict. Id. We will affirm the conviction unless no reasonable finder of fact could find the elements of a crime proven beyond a reasonable doubt. Id.

II. Fleeing from Law Enforcement

Gaddie was convicted of resisting law enforcement in violation of Indiana Code section 35-44.1-3-l(a)(3). The State was required to prove beyond a reasonable doubt that Gaddie did knowingly or intentionally flee from Officer Newlin after he had identified himself and ordered Gaddie to stop. See id. Gaddie argues that the evidence was insufficient to sustain his conviction because he had no duty to stop in what was a consensual encounter.

Gaddie relies upon the cases of Bovie v. State, 760 N.E.2d 1195 (Ind.Ct.App,2002), and Briggs v. State, 873 N.E.2d 129 (Ind.Ct.App.2007), trans. denied. In Bovie, the trial court found that the defendant violated his probation, in part, by resisting law enforcement in violation of a statutory provision analogous to the one Gaddie was convicted of violating here. 760 N.E.2d at 1196-97. A panel of this court stated that “before an individual may actually resist law enforcement by fleeing, the individual must have a duty to stop.” Id. at 1197. The court further noted that:

[i]n a consensual encounter, the individual remains free to disregard the police officer and to walk away. Only when an individual no longer remains free to leave does an investigatory stop begin. It follows that [the defendant] could be found guilty of resisting law enforcement only if he was the subject of an otherwise legal stop.

Id. at 1198 (citations omitted). The police officer had witnessed the defendant and his passenger, a known drug user and seller, leave a known drug house, go to a gas station, and stop their car. Id. The court concluded that while the officer may have had a “ ‘hunch’ that something was amiss,” this was not sufficient to constitute reasonable suspicion that the defendant was engaged in criminal activity. Id. Because of the lack of reasonable suspicion or statutory authority to make a stop, .this court held that the defendant was subject to an unlawful, stop and was therefore not guilty of resisting law enforcement. See id. at 1198-99.

In Briggs, the defendant was convicted, of resisting law enforcement for knowingly or intentionally resisting a law enforcement officer while the officer was lawfully engaged in the execution of his duties. 873 N.E.2d at 131-32. In that case, after the defendant allowed law enforcement to enter his home to provide stand-by assistance to his former roommate as he retrieved his belongings, he walked towards the back room. Id. at 131. Police asked him to stop but he did not comply. Id. A panel of this court held that because the defendant was not under arrest, in custody, or under suspicion for a crime, the encounter was consensual and the defendant “remained free to disregard the officers, walk away, or even order them to leave his home.” Id. at 133. The court concluded that even though the officer may have had a hunch that the defendant could have a weapon in his bedroom, his detention was an unreasonable seizure in violation of the Fourth Amendment and therefore the evidence was insufficient to sustain his conviction. Id. at 133-34.

There are two schools of thought on the issue of whether a person must obey an unlawful order to stop from a police officer. In Corbin v. State, a panel of this court held that “evidence of flight following a police officer’s order to stop is admissible in a prosecution for resisting law enforcement regardless of the lawfulness of the order.” 568 N.E.2d 1064, 1065 (Ind.Ct.App.1991). A number of cases have' subsequently cited to this rule. See, e.g., Dandridge v. State, 810 N.E.2d 746, 749 (Ind.Ct.App.2004), trans. denied; State v. Howell, 782 N.E.2d 1066, 1067 (Ind.Ct.App.2003). The court in Corbin based its decision in part on the language of the statute, which does not condition the offense upon a lawful order. 568 N.E.2d at 1065. The court further stated there was no Fourth Amendment issue because the defendánt’s “flight was in response to an order to stop; in fact he never stopped and nothing was seized from him.” Id. In a footnote, the court noted that the “remedy, if any, is with the civil law.” Id. at -1065 n. 2.

While the statutory provision under which Gaddie was convicted does not condition the offense upon a lawful order, the statutory language is not the end of the story. Another provision of the statute which defines resisting law enforcement as forcibly resisting, obstructing or interfering with a law enforcement officer does condition the offense upon the officer being “lawfully engaged in the execution of [his or her] duties,” see Ind.Code' § 35-44.1-3-l(a)(l), and yet the Indiana Supreme Court has stated that even if an arrest is invalid, resisting is an independent offense, Row v. Holt, 864 N.E.2d 1011, 1017 (Ind.2007). The reasoning behind this rule is that allowing a pers'on to forcibly resist an unlawful arrest “would effectively encourage rather than inhibit violence during arrests.” Dora v. State, 783 N.E.2d 322, 327 (Ind.Ct.App.2003), trans. denied. This rationale does not apply to the situation where a person merely walks away and does not obey a command to stop.

More importantly, we disagree that a conviction under this statutory provision does not have Fourth Amendment implications. The United States Supreme Court has stated that “a person is- ‘seized’ ... when, by means of physical force or a show of authority, his freedom of movement is restrained.” United States v. Mendenhall, 446 U.S. 544, 553, 100. S.Ct. 1870, 64 L.Ed.2d 497 (1980). To hold that Gaddie should have stopped immediately upon being ordered to do so by Officer Newlin or else face a criminal conviction would mean that a seizure took place under the Fourth Amendment. A seizure requires, at the minimum, a reasonable suspicion of criminal activity based on specific and articulable facts. See id. at 554, 100 S.Ct. 1870. The Fourth Amendment is not implicated in what is termed a “consensual encounter,” see Overstreet v. State, 724 N.E.2d 661, 663 (Ind.Ct.App.2000), trans. denied, where “the person to whom questions are put remains free to disregard the questions and walk away,” Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. To agree with the rationale in Corbin would effectively render the consensual, encounter nonexistent in the state of Indiana. However, “[t]he purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” Mendenhall, 446 U.S. at 553-54, 100 S.Ct. 1870 (quotes and citation omitted). Thus,we hold that as long as a seizure has not taken place within the meaning of the Fourth Amendment, a person is free to disregard a police officer’s order to stop and cannot be convicted of resisting law enforcement for fleeing.

The State argues there was reasonable suspicion to conduct an investigatory stop here. We disagree. We first note that the lower standard of reasonable suspicion, as opposed to probable cause, only applies to cases involving a brief encounter between a citizen and a law enforcement officer on a public street. State v. Atkins, 834 N.E.2d 1028, 1033 (Ind.Ct.App.2005), trans. denied. Here, Gaddie was at his own residence and not on a public street. However, we will address the parties’ arguments regarding whether this was an, investigatory stop. The State contends that .the encounter, was an investigatory stop, because Officer Newlin was responding, to a report of a disturbance. However, a report of a disturbance without more is not a sufficient, basis upon which to conduct an investigatory stop. See, e.g., id. at 1034 (holding there was no reasonable suspicion which would justify an investigatory stop despite report of a domestic disturbance). Moreover, Gaddie was not standing with the group of people who were yelling and screaming in the front of the home. Instead, he was walking on the side of his home towards the back yard. Officer Newlin 'testified that he had not observed Gaddie or anyone else commit a crime and he did not state that Gaddie was under any suspicion of having done so. Officer Newlin testified that he was corralling everyone into the front yard for officer safety and their safety. But while “[o]fficer safety is always a legitimate concern, ... standing alone [it] cannot form the basis for a valid investigatory stop.” Id. at 1033. In addition, it appears that the safety concern was merely speculative and there is no evidence that Gaddie walking away posed a safety risk to law enforcement. See Williams v. State, 959 N.E.2d 357, 359 (Ind.Ct.App.2011) (distinguishing the case from Briggs because of a greater safety risk to police where the police were outnumbered, violence had erupted once, and the defendant was not “merely walking] away from the police, as Briggs did, but was actively interfering with the officers’ investigation”), trans. denied. Because there was no reasonable suspicion, let alone probable cause, which would justify a seizure of Gaddie, he was subject to an unlawful stop and thus his conviction for resisting law enforcement is reversed for insufficient evidence.

Conclusion

Gaddie was under no duty to stop when Officer Newlin ordered him to do so. Moreover, there was no reasonable suspicion which would justify a seizure of Gad-die. Thus, his conviction for resisting law enforcement is reversed.

Reversed.

FRIEDLANDER, J., and CRONE, J., concur.

      . The State claims that the level of police investigation is irrelevant, in part, because Gaddie does not raise a challenge to the admissibility of the evidence. However, Gad-die’s argument regarding whether there was sufficient evidence to sustain his conviction encompasses the issue of the level of police investigation. ,

      . In Bovie, however, the standard of proof was the lower burden of preponderance of the evidence because it was a probation revocation case. 760 N.E.2d at 1197.

      . The defendant in Briggs was convicted under this statutory provision.


author: BARNES, Judge.

text:
    Tuan CHU, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1210-CR-495.
    Court of Appeals of Indiana.
    July 15, 2013.

      Darren Bedwell, Indianapolis, IN, Attorney for. Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Tuan Chu' appeals his convictions for three counts of Class D felony evasion of income tax, three counts of Class D felony theft, and one count of Class D felony failure to remit or collect sales tax. We affirm.

Issue

Chu raises one issue, which we restate as whether double jeopardy principles bar his convictions because the Indiana Department of Revenue (“the Department”) had already imposed nonpayment penalties for his failure to pay taxes. .

Facts

Chu operated a glass repair business and did not pay state and local income taxes or remit sales tax that he collected from customers. In April 2011, the Department issued fifteen “RECORD OF JEOPARDY FINDINGS” for unpaid sales tax from 2004 through 2011 and unpaid income tax from 2004 through 2009. Ex. E.' These notices informed Chu that he owed the unpaid taxes, interest, and nonpayment penalties. The nonpayment penalties assessed were 100% of the unpaid taxes: Corresponding “JEOPARDY ASSESSMENT NOTICE AND DEMANDS” were also issued. Id. Tax warrants were issued and, on May 2, 2011, a judgment was entered against Chu in the amount of $280,826.32.

In the meantime, on April 18, 2011, the State charged Chu with Class C felony corrupt business" influencé, three counts of Class'D felony evasion of income tax, nine counts of Class D felony theft, and four counts of Class D felony failure to remit or collect taxes. All of the criminal charges were based on conduct that occurred from 2007 through 2009. The State also alleged that Chu was an habitual offender.

On August 16, 2012, following a bench trial, Chu was found guilty and convicted of three counts of Class D felony evasion of income tax, three counts of Class D felony theft, and one count of Class D felony failure to,remit or collect sales tax. Chu was also found to be an habitual offender. Chu now appeals.

Analysis

Chu argues that the nonpayment penalties and his criminal convictions violate double jeopardy. Initially, the State asserts that any double jeopardy argument is waived because Chu did not raise it at trial and did not frame it as fundamental error on appeal. The State also acknowledges, however, that double jeopardy issues have been addressed sua sponte by our supreme court. See e.g., Logan v. State, 729 N.E.2d 125, 136 (Ind.2000). Because of our preference for resolving issues on their merits, we choose to address Chu’s double jeopardy claim as raised on appeal. See Perry v. State, 956 N.E.2d 41, 51 (Ind.Ct.App.2011).

Chu, argues that, because he was assessed the nonpayment penalties and convicted of tax-related crimes, he was improperly punished twice for the same conduct. Chu relies on Bryant v. State, 660 N.E.2d 290 (Ind.1995), cert. denied, to support his argument that the tax penalty was a punishment. In Bryant, our supreme court addressed whether imposing both civil and criminal sanctions for the failure to pay the Indiana Controlled Substance Excise Tax (“CSET”) violated the Double Jeopardy Clause of the 5th Amendment to the United States Constitution.

Specifically, after police found over 250 marijuana plants, marijuana seeds, dried marijuana, and drug paraphernalia in Bryant’s home, the Department assessed a $83,680 tax based on the weight of the marijuana. The Department agent met with Bryant and demanded payment. Because Bryant did not pay the CSET, the Department demanded that he pay the CSET plus a 100%, penalty for nonpayment, for a total obligation of $167,360. The next day, the Department of Revenue levied Bryant’s bank accounts and seized his home. The State then charged Bryant with failure to pay the CSET, a Class D felony, and other marijuana-related offenses, and Bryant was convicted as charged.

In determining whether the assessment of the CSET and its nonpayment penalty and the conviction for nonpayment violated the 5th Amendment, our supreme court explained:

Jeopardy is, in its constitutional sense, a technical term which has traditionally applied only to criminal prosecutions. Evans v. Brown, 109 U.S. 180, 3 S.Ct. 83, 27 L.Ed. 898 (1883). Departing from this historical rule, however, the U.S. Supreme Court has held in recent years that particular forfeitures, civil fines and financial exactions can be “jeopardies.” Montana Dep’t of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994); United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). Cf. Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). In determining whether a jeopardy has occurred, the Court has said that the sanction’s label of “criminal” or “civil” is not controlling. Halper, 490 U.S. at 447, 109 S.Ct. at 1901; see also United States v. Haywood, 864 F.Supp. 502, 506 (W.D.N.C.1994) (description of sanction as “Civil” does not foreclose possibility it is a jeopardy). Rather, the test is whether the civil sanction constitutes a “punishment.” Kurth Ranch, 511 U.S. at 779, 114 S.Ct. at 1946. When the sanction serves the goals of punishment rather than the remedial purposes of compensating the government for its loss, it is a “punishment” and thus a “jeopardy” within the Double Jeopardy Clause. Id. The sanction’s essence as a punishment can be identified “only by assessing the character of the actual sanctions imposed on the individual by the machinery of the state.” Halper, 490 U.S. at 447, 109 S.Ct. at 1901.

Bryant, 660 N.E.2d at 295-96. In determining whether the CSET’s civil sanction was a punishment, the Bryant court applied the four-factor test used by the Supreme Court in Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 773, 114 S.Ct. 1937, 1943, 128 L.Ed.2d 767 (1994), which required the examination of the tax’s deterrent purpose (as opposed to revenue purpose), its high rate, its prerequisite of the commission of a crime before assessment, and the nature of the tax. Id. at 296. The Bryant court ultimately con-eluded, “the assessment of the CSET and its 100 percent penalty against Bryant was a punishment and thus a jeopardy.” Id.- at 297.

Both.' Bryant and Kurth Ranch, however, rely heavily on the Supreme Court’s decision in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), which has since been abrogated by Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). The Hudson court specifically granted certio-rari “because of concerns about the wide variety of novel double jeopardy claims spawned in the wake of Halper.” Hudson, 522 U.S. at 98, 118 S.Ct. at 493. The Hudson court held, “[w]e believe that Halper’s deviation from longstanding double jeopardy principles was ill considered. As subsequent cases have demonstrated, Halper’s test for determining whether a particular sanction is ‘punitive,’ and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkable.” Id. at 101-02, 118 S.Ct. at 494 (footnote omitted). The Hudson court then applied the traditional,double jeopardy principles exemplified in United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 2641-42, 65 L.Ed.2d 742 (1980), to determine that administratively imposed monetary penalties and occupational disbarment for the violation of federal banking statutes and later criminal indictments for essentially the same conduct did not violate the Double Jeopardy Clause of the 5th Amendment. Id. at. 102-03, 118 S.Ct. at 494-95.

Although the State analyzes the nonpayment penalties under Hudson to argue that the subsequent convictions do not violate double jeopardy, Chu provides no argument that the imposition of the nonpayment penalties and the criminal convictions violate double jeopardy under Hudson. Instead, in his reply brief, Chu asserts that Bryants, holding has not been overturned and urges us to apply it as part of an Indiana constitutional analysis. To the extent Hudson now controls the 5th Amendment analysis, we decline to make a Hudson-based argument on Chu’s behalf, and Chu has not carried his burden to the extent he raises a claim based on the 5th Amendment. See State v. Peters, 921 N.E.2d 861, 867 (Ind.Ct.App.2010) (explaining that we are a neutral arbiter of disputes and not an advocate for either party).

Even if we assume Bryant is still good law and is applicable in determining whether a civil sanction is a punishment for Indiana double jeopardy purposes, we are not convinced the nonpayment penalties assessed to Chu are punishments. As an initial matter, in Bryant, our supreme court considered the CSET and the nonpayment penalty together as one sanction when determining whether they constituted a punishment for double jeopardy purposes. See Bryant, 660 N.E.2d at 295 n. 11, n. 18. Here, however, Chu concedes that the underlying sales and income taxes are revenue generating and not punitive and bases his argument on the assessment of the nonpayment penalties alone. Thus, the nature of the civil sanction at issue here is significantly different than the civil sanction Bryant faced.

Even in applying the four-part test used in Bryant, we are not persuaded that the nonpayment penalties are punishments for double jeopardy purposes. As for the deterrent purpose, although the assessment of a nonpayment penalty does serve a deterrent purpose because it encourages individuals to timely pay their taxes to avoid the imposition of a penalty, the Supreme Court has acknowledged “that all civil penalties have some deterrent effect.” Hudson, 522 U.S. at 102, 118 S.Ct. at 494. Further, because of the legitimate revenue generating purpose of the underlying taxes, the government has a significant interest in individuals timely paying those taxes.

Regarding the rate of the nonpayment penalties, although Chu compares it to the maximum fines imposed for the commission of a felony, he makes no argument comparing the rate of the nonpayment penalties to other tax penalties or to other civil sanctions. Without more, we are not convinced that the rate of the 100% nonpayment penalties alone is such that it constitutes a punishment.

As for the prerequisite of the commission of a crime before a nonpayment penalty may be imposed, we disagree with Chu’s bare assertion that the imposition of the nonpayment penalties “was conditioned on the commission of a crime.... ” Appellant’s Br. p. 13. Although the failure to pay the taxes also may have been a violation of a criminal statute, there is no indication that the Department’s assessment of the nonpayment penalties was dependent of the State’s decision to prosecute Chu for the failure to pay the taxes. Cf. Bryant, 660 N.E.2d at 296-97 (observing that the CSET is only assessed when police contact the Department of Revenue to report an individual who was in custody for the delivery, possession, or manufacture of a controlled substance).

Finally, although Chu does not specifically address the nature of the nonpayment penalty, he does argue that the Department’s use of jeopardy assessments suggests it was punitive. “Jeopardy assessments are a powerful collection tool that, when properly used, further the important state interest of collecting state tax revenue needed to pay for critical governmental services and conducting the business of the state.” Garwood v. Indiana Dep’t of State Revenue, 953 N.E.2d 682, 690 (Ind.T.C.2011), trans. denied. “[0]ur Legislature very narrowly tailored the Department’s jeopardy assessment power to further the essential state interest of exercising its power to tax when collection is at risk.” Id. at 686. In Garwood, the court suggested, “the Department wielded the power of jeopardy assessments as a sword to eliminate a socially undesirable activity and close down a suspected ‘puppy mill,’ not to fill the State’s coffers with the tax liabilities the Garwoods purportedly owed.” Id. at 690 (footnote omitted). Chu, however, does not explain what socially undesirable activity the Department was seeking to eliminate when it issued the jeopardy assessments against him, nor does he assert that the jeopardy assessments were issued in the absence of the necessary statutory requirements. See id. Without more, we are not convinced that the issuance of jeopardy assessments rendered the nonpayment penalties punitive.

As such, Chu has not shown that the nonpayment, penalties were punishments for double jeopardy purposes. Even if Chu had made such a showing, we are not convinced that Chu would be entitled to relief under the Indiana Constitution.

In Richardson v. State, 717 N.E.2d 32, 43-44 (Ind.1999), our supreme court clarified the proper analysis for double jeopardy challenges under the Indiana Constitution and- held that two or more offenses are the “same offense” “if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” Jones v. State, 812 N.E.2d 820, 823-24 (Ind.Ct.App.2004). In Jones we considered whether the Richardson analysis could be properly applied to a civil contempt sanction and a criminal conviction. Id. at 824. As Chu acknowledges, in Jones we held:

After carefully reviewing the language used by the supreme court in the Richardson opinion and considering its analysis, we conclude that it is not applicable to a fact pattern such as that with which we are faced today. Jones’ double jeopardy challenge focuses on one criminal conviction and one civil contempt sanction, not on two statutorily defined crimes. Jones was held in contempt of court for failing to pay child support after having been ordered to do so; he was not convicted pursuant to a statutorily defined crime. Indiana Code Section 31-14-12-3 provides, “If the court finds that a party is delinquent as a result of an intentional violation of an order for support, the court may find the party in contempt of court.” This section merely grants authority to the trial court, in its discretion, to find a party in contempt of court for failing to pay child support. It does not create a “statutorily defined crime” as contemplated by the analysis set forth in Richardson. Richardson, 717 N.E.2d at 49.

Jones, 812 N.E.2d at 824-25. Although Chu asks us to revisit Jones because it elevates form over substance, we stand by the reasoning in Jones.' Accordingly, because the nonpayment penalties are not statutorily defined crimes as contemplated in Richardson, Chu has not established that the imposition of the nonpayment penalties and the subsequent criminal convictions violate Richardson’s actuál evidence test and are barred by the Indiana Constitution.

Conclusion

Chu has not shown that the assessment of nonpayment penalties and the criminal convictions violate United: States or Indiana double jeopardy principles. We affirm.

Affirmed.

NAJAM, J., and BAILEY, J., concur.

      . Chu was found not guilty of the corrupt business influence charge and six of the theft charges, and the trial court vacated three of the failure to remit or collect taxes convictions on double jeopardy grounds.

      . In his opening brief, Chu urges us to hold that “the criminal prosecution was barred by the state and federal constitutional prohibitions against double jeopardy....” Appellant’s Br. p. 14. Chu also references the prohibitions against double jeopardy in the 5th Amendment to the United States Constitution and Article 1, Section 14 of the Indiana Constitution. Chu cites several United States Supreme Court cases and relies primarily on Bryant v. State, 660 N.E.2d 290 (Ind.1995), which was based solely on 5 Amendment double jeopardy principles. See Bryant, 660 N.E.2d at 295 n. 12 (noting that Bryant presented "no viable state constitutional basis for his appeal.”).
      In his reply brief, Chu clarifies that his claim is based on the Indiana Constitution and Indiana precedent, and not on the 5th Amendment. Specifically, Chu asks us to hold that he "was subjected to Bryant jeopardy when 'the State assessed the tax penalties against him” and to apply the actual evidence test of Richardson v. State, 717 N.E.2d 32 (Ind.1999). Reply Br. p. 4. Because Chu’s argument, even as it is framed in his reply brief, depends on Bryant’s analysis of 5th Amendment double jeopardy principles, we reject Chu’s assertion that his claim is based solely on the Indiana Constitution.

      . The Hudson court described the Ward test as follows:
      Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction.... A court must first ask whether the legislature,- "in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.” Ward, 448 U.S., at 248, 100 S.Ct., at 2641. Even in those cases where the legislature "has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect,” id., at 248-249, 100 S.Ct., at 2641, as to "transform] what was clearly intended as a civil remedy into a criminal penalty,” Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 222, 100 L.Ed. 149 (1956).

        In making this latter determination, the factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963), provide useful guideposts, including: (1) "[w]hether the sanction involves an affirmative disability or restraint”; (2) "whether it has historically been regarded as a punishment”; (3) "whether it comes into play only on a finding of scienter ”; (4) "whether its operation will promote the traditional aims of punishment-retribution and deterrence”; (5) "whether the behavior to which it applies is already a crime”; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it”; and (7) "whether it appears excessive in relation to the alternative purpose assigned.” It is important to note, however, that "these factors must be considered in relation to the statute on its face,” id., at 169, 83 S.Ct., at 568, and “only the clearest proof” will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty, Ward, supra, at 249, 100 S.Ct., at 2641-2642 (internal quotation marks omitted).

        Hudson, 522 U.S. at 99-100, 118 S.Ct. at 493.