author: Altice, Judge

text:
    Patricia M. JONES, Appellant-Plaintiff, v. VON HOLLOW ASSOCIATION, INC., Appellee-Defendant.
    Court of Appeals Case No. 08A02-1709-PL-2175
    Court of Appeals of Indiana.
    Filed May 25, 2018
    Attorney for Appellant: Joseph R. Delehanty, Lafayette, Indiana
    Attorney for Appellee: Steven Knecht, Lafayette, Indiana
    Case Summary
   Altice, Judge

[1] This case involves a dispute between Patricia Jones and the Von Hollow Association, Inc. (Von Hollow) over land abutting Lake Freeman in Carroll County. In 2016, Jones filed a complaint against Von Hollow seeking a declaratory judgment that she had a prescriptive easement over a portion of Von Hollow's property to access a shorefront area and, ultimately, the Lake Freeman shoreline. She also sought an injunction to prevent Von Hollow from obstructing or interfering with her use of the claimed easement and for a judgment of trespass against Von Hollow. Von Hollow filed its answer and a counterclaim against Jones for trespass. Following a hearing, Jones's preliminary injunction motion was denied. After a bench trial, the court denied Jones's claims for declaratory judgment and trespass and entered judgment in favor of Von Hollow on its trespass claim against Jones. On appeal, Jones raises three issues, which we restate as:

1. Whether the trial court erred when it denied Jones's claim for a declaratory judgment that she had a prescriptive easement over Von Hollow's property.
2. Whether the trial court erred when it determined that Jones trespassed on Von Hollow's property and that Von Hollow did not trespass on Jones's property.
3. Whether the trial court erred when it directed an entity that is not a party to this appeal to issue Jones and Von Hollow joint rights in a licensed shorefront area.

[2] We affirm in part, reverse in part, and remand.

Facts & Procedural History

[3] Von Hollow was formed in 1986 or 1987. Members of the Conway family (the Conways) are officers in the association, and Joseph Conway is a major shareholder. Von Hollow owns 3.446 acres on West Von Hollow Drive that are part of a residential subdivision and resort located on Lake Freeman in Carroll County. Part of the Von Hollow property meets the shoreline of Lake Freeman while another part abuts a shorefront area that is owned by the Shafer and Freeman Lakes Environmental Conservation Corporation (SFLECC). SFLECC issues a yearly shorefront license (the SFL) to Von Hollow that entitles Von Hollow to access the shorefront area and, ultimately, the lake, at the part where Von Hollow's property abuts SFLECC's shorefront area.

[4] Jones owns .566 acres at 11600 North Von Lane, located close to, but not directly on, Lake Freeman. Jones accessed the lake through the same SFLECC-owned shorefront area that Von Hollow utilized. SFLECC issues a separate, yearly SFL to Jones that entitles her to access the shorefront area over the part of her property that adjoins the shorefront area.

[5] A narrow strip of the Von Hollow property (the tail), that further narrows to a point (the corner), almost completely separates Jones's property from the shorefront area that her SFL entitles her to access. Jones's property only abuts the shorefront area at the corner, which measures less than one quarter of an inch wide.

[6] An asphalt and gravel roadway (the lane) runs along the Von Hollow property, through the shorefront area, to the lakeshore. Von Hollow controls access to the lane by means of a locked gate at one end of the lane. Historically, keys were distributed to "[t]enants, renters, owners" within the Von Hollow subdivision and to some individuals who did not live within the subdivision. Transcript Vol. 2 at 76.

[7] Jones's property was previously owned by George and Virginia Fischer. In 1994, the Fischers built stairs and a walkway from the house located on what is now Jones's property down to the shorefront area. Part of the walkway crossed over the tail of the Von Hollow property. Prior to the installation of the stairs and walkway, there were no steps or developed land access from the back of the house to the shorefront area.

[8] Two months after the stairs were completed, the Fischers sold the property to Ronald and Mary Lou Nutt. At the time of the sale, the Nutts received from the Fischers a key to the gate that provided access to the lane. Ronald Nutt testified that he used the lane daily to access the lake and that he occasionally used the stairs and walkway that led from his property, over the Von Hollow property, to the shorefront area. At times, instead of using his key to the lane gate, Nutt "would just simply drive [his tractor] around the end of the gate and drive down [to the shorefront area]." Id. at 44.

[9] The Nutts did not enjoy a good relationship with the Conways. In fall 1996, Von Hollow changed the lock on the lane gate and chose not to give the Nutts a key. Ronald, however, continued to use the lane, driving around the gate when necessary, though he was told by Joseph Conway not to do so.

[10] In 1998, the Nutts sold their property to Jones and her (then) husband Paul. The Joneses received a key to the lane gate from the realtor. Unlike the Nutts, the Joneses enjoyed an amicable relationship with the Conways. Jones testified that they were friends and often socialized together. Between 1998 and 2015, the Joneses used both the lane and the stairs and walkway to access the shorefront area and the lake. The Joneses also could access the shorefront area from the lake, by boat. In 2006, Von Hollow again changed the lock on the gate. Von Hollow provided the Joneses with a key to the new lock.

[11] Sometime between 2005 and 2007, the Joneses began to construct a deck at the bottom of their stairs. One of the Conways saw the construction and told the Joneses they needed to move the support posts because they were on the tail of the Von Hollow property. The Joneses complied.

[12] In 2013, Paul and Jones divorced, and their property was transferred to Jones as sole owner. The good relationship between Jones and the Conways continued, however, until August 2015, when the relationship deteriorated. During the first week of August 2015, Jones constructed a retaining wall made of paving stones to prevent gravel from the lane from spreading. According to Jones, the wall was erected in the part of the shorefront area that her SFL allowed her to access; per Joseph Conway, it blocked access to the lane and made it impossible for the Conways to maneuver their boats to the water. The Conways told her that the wall needed to be moved, and Jones moved the wall. Shortly before Labor Day 2015, Von Hollow changed the lock on the lane gate. Jones was not provided with a key to the new lock.

[13] On March 11, 2016, Jones filed a complaint and motion for hearing, requesting (1) a declaratory judgment that she had a prescriptive easement over both the lane and the tail of the Von Hollow property, (2) a preliminary injunction against Von Hollow to prevent it from obstructing or interfering with her use of the claimed easements over the Von Hollow property, and (3) a judgment against Von Hollow for trespass. Von Hollow filed its answer, requesting that the court deny Jones's requests for preliminary injunction and declaratory judgment. Von Hollow counterclaimed against Jones for trespass on its property. On May 13, 2016, a hearing was held on Jones's motion for preliminary injunction. On June 16, 2016, the court issued an order denying her motion, determining that Jones's use of the lane and tail was not adverse; rather, it was with Von Hollow's permission. The court further determined that "Jones does not likely have an easement by prescription over the Von Hollow Property." Appellee's Appendix Volume II at 14.

[14] In the summer of 2016, sometime after the trial court issued its June 16, 2016 order, Jones placed picnic tables and paving stones in the shorefront area and across a portion of the lane. Eventually, she chained the tables together, placed "No Trespassing" signs on the tables, and installed security cameras. The Conways moved the tables and paving stones because they were unable to drive down the lane to their boat slips.

[15] On May 8, 2017, a bench trial was conducted on Jones's complaint and Von Hollow's counterclaim. At the start of the trial, Jones informed the trial court that she did not wish to pursue her claim for a prescriptive easement in the lane. Following the trial, the parties submitted proposed findings of fact and conclusions thereon. On August 21, 2017, the court issued its order, along with findings of fact and conclusions thereon. The court denied Jones's claim for declaratory judgment that a prescriptive easement existed over the tail and her request for injunctive relief. It also found against Jones on her trespass claim and in favor of Von Hollow on its trespass claim against Jones. Jones now appeals. Additional facts will be provided as necessary.

Discussion & Decision

[16] The trial court entered findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A). We may not set aside the findings or judgment unless they are clearly erroneous. Menard, Inc. v. Dage-MTI, Inc. , 726 N.E.2d 1206, 1210 (Ind. 2000). In our review, we first consider whether the evidence supports the factual findings. Id. Second, we consider whether the findings support the judgment. Id. "Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference." Quillen v. Quillen , 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous if it relies on an incorrect legal standard. Menard , 726 N.E.2d at 1210. We give due regard to the trial court's ability to assess the credibility of witnesses. Id. We do not reweigh the evidence; rather we consider the evidence most favorable to the judgment with all reasonable inferences drawn in favor of the judgment. Yoon v. Yoon , 711 N.E.2d 1265, 1268 (Ind. 1999). We evaluate questions of law de novo and owe no deference to a trial court's determination of such questions. Kwolek v. Swickard , 944 N.E.2d 564, 570 (Ind. Ct. App. 2011) (citing McCauley v. Harris, 928 N.E.2d 309, 313 (Ind. Ct. App. 2010), trans. denied ), trans. denied.

[17] We also note that Jones appeals from a negative judgment. A party who had the burden of proof at trial appeals from a negative judgment and will prevail only if it establishes that the judgment is contrary to law. Helmuth v. Distance Learning Sys. Ind., Inc. , 837 N.E.2d 1085, 1089 (Ind. Ct. App. 2005). A judgment is contrary to law when the evidence is without conflict and all reasonable inferences to be drawn from the evidence lead only to one conclusion, but the trial court reached a different conclusion. Id.

1. Prescriptive Easement

[18] Jones contends the trial court erred when it determined that she failed to establish she acquired a prescriptive easement over the tail of Von Hollow's property. She argues that she acquired a prescriptive easement over the disputed property because she and "her predecessors in title used a walkway over [the tail] continuously from 1994 to the present," and "Von Hollow took no steps ... to either affirmatively place [Jones] on notice that it was ending her use of the walkway [over the tail] or that her use was by permission only." Appellant's Brief at 18, 22. She further argues that the trial court's findings are inconsistent and cannot be used to support the conclusions thereon.

[19] Von Hollow maintains the trial court correctly determined Jones's use of the tail was not adverse, but permissive. According to Von Hollow, Jones failed to "demonstrate the intent to claim full ownership of the tail (or the use thereof) superior to the rights of others ...[;]" "[s]he did not attempt to exclude Von Hollow from the tail; and she [acquiesced] when Von Hollow representatives told her to move her deck-in-progress." Appellee's Brief at 22.

[20] Prescriptive easements are not favored in the law. Carnahan v. Moriah Prop. Owners Ass'n., Inc. , 716 N.E.2d 437, 441 (Ind. 1999). For that reason, "the party claiming one must meet 'stringent requirements.' " Id. (citation omitted). Formerly, a party claiming the existence of a prescriptive easement was required to provide evidence showing "an actual, hostile, open, notorious, continuous, uninterrupted adverse use for twenty years under a claim of right." Id. (citation omitted). Further, each element had to be " 'established as a necessary, independent, ultimate fact, the burden of showing which is on the party asserting the prescriptive title, and the failure to find any one of such element [is] fatal ..., for such failure to find is construed as a finding against it.' " Id. (citations omitted, alteration in original).

[21] In Wilfong v. Cessna Corp. , 838 N.E.2d 403 (Ind. 2005), however, our Supreme Court modified the traditional elements of prescriptive easements to correspond to the Court's reformulated elements of adverse possession as follows:

In our recent decision, Fraley v. Minger, 829 N.E.2d 476 (Ind. 2005), we reviewed the history of the doctrine of adverse possession in Indiana and reformulated the elements necessary for a person without title to obtain ownership to a parcel of land. We held that the claimant in such circumstances must establish clear and convincing proof of (1) control, (2) intent, (3) notice, and (4) duration. Id. at 486. This reformulation applies as well for establishing prescriptive easements, save for those differences required by the differences between fee interests and easements.

Wilfong, 838 N.E.2d at 406 (footnote omitted). The Court explained each of the elements as follows, noting their relationship with the previous requirements:

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

Fraley , 829 N.E.2d at 485. The elements must be satisfied for a period of twenty years. See Ind. Code § 32-23-1-1 ("The right-of-way, air, light, or other easement from, in, upon, or over land owned by a person may not be acquired by another person by adverse use unless the use is uninterrupted for at least twenty (20) years."). Whether a prescriptive easement exists is a question of fact. Capps v. Abbott , 897 N.E.2d 984, 988 (Ind. Ct. App. 2008).

[22] Here, we find the element of intent dispositive. See Corp. for Gen. Trade v. Sears , 780 N.E.2d 405, 410 (Ind. Ct. App. 2002) (party asserting prescriptive easement has burden of showing each element "as a necessary, independent, ultimate fact, and the failure to establish any one of such elements is fatal"). In its findings of fact, the trial court stated in relevant part:

58. Jones and Von Hollow enjoyed friendly relationships with one another[,] sharing the Shore Front License Area and engaging in many social activities together from the time [Jones] and her husband acquired their ownership in 1998 until 2015.
* * * * *
62. Von Hollow was aware of Jones [sic] use of the walkway across the tail and permitted its use by Jones.
63. Jones has never denied Von Hollow Association access to the tail.
64. In 2006 or 2007 Jones, at the demand of Von Hollow Association, removed a deck that she had started building adjoining the walkway over the tail.
65. Von Hollow Association never denied Jones access across the tail.
66. Jones crossed the tail with Von Hollow Association's knowledge and permission.
67. Jones can access and use her boat lift, improvements and the Shore Front License Area by water via Lake Freeman without using the lane or crossing the tail.

Appellant's Appendix Vol. 2 at 16. Based on the findings, the trial court concluded:

F. In the present case the use of the tail by Jones has not been adverse, rather with permission from Von Hollow as evidenced by the long standing friendly, cordial relationship they, historically, had enjoyed with one another. Von Hollow requested Jones to move a deck which was being constructed on the tail adjacent to the walkway, which evidences the permissive nature of her use of the tail and demonstrates that Von Hollow was aware of Jones' use of the walkway and stairs and allowed use of same, until recently. Jones has failed to establish the elements of control, intent and notice to establish an easement by prescription.

Id. at 19.

[23] At trial, Jones described her relationship with the Conways as "[g]reat." Transcript Vol. 5 at 76. She testified that she was friends with several members of the Conway family; that "[w]e just got a long [sic];" and that Jackie Conway, Joseph Conway's sister, was her best friend. Id. Joseph testified that his relationship with Jones was amicable and that she joined the Conways in social activities. Additional testimony indicated that when Jones learned the deck her family was installing needed to be moved because it was on the Von Hollow property, the deck was moved.

[24] In Wilfong , a case involving a situation similar to that of the instant case, our Supreme Court found "implied permission grounded in the cordial relationship between [two] families." See Wilfong , 838 N.E.2d at 407 (noting the "goodwill" and "very cordial relationship" between two families supported a finding of permissive rather than adverse use). Before Wilfong , this court found implied permission where there was evidence of a friendly relationship between two sisters. See Searcy v. LaGrotte , 175 Ind. App. 498, 372 N.E.2d 755 (1978). In Monarch Real Estate Co. v. Frye , 77 Ind. App. 119, 133 N.E. 156, 158-59, (1921), this court found that there was no inconsistency between the appellee's ownership of an alleyway and the permissive use of the same by the appellants, and that "where there is no inconsistency between the use and the ownership, there can be no prescriptive right."

[25] We conclude that the evidence supports the court's finding that Jones's use of the walkway over the tail was permissive, and the findings support the conclusion that Jones did not acquire a prescriptive easement over the tail. The trial court properly determined that Jones did not acquire a prescriptive easement over the tail.

2. Trespass

[26] Next, Jones challenges the trial court's conclusion that she committed criminal trespass when she "repeatedly plac[ed] picnic tables and paver stones in the Shore Front License Area [and] interfered with Von Hollow's possession and use of its Shore Front License and its access to its Shore Front License Area improvements," and did so "knowingly, intentionally and without Von Hollow's consent." Appellant's Appendix Vol. 2 at 21-22.

[27] A person who "knowingly or intentionally interferes with the possession or use of the property of another person without the person's consent" commits criminal trespass, a Class A misdemeanor. Ind. Code § 35-43-2-2(b)(4). "It has long been the law in this state, as well as of many other states, that the penal statute relating to criminal trespass was not designed to try disputed rights in real estate, but such law was intended to punish those who willfully and without a bona fide claim of right commit acts of trespass on the lands of others." Myers v. State , 190 Ind. 269, 130 N.E. 116, 117 (1921) ; see also , Hughes v. State , 103 Ind. 344, 2 N.E. 956, 958 (1885) ("the machinery of the criminal law cannot be properly invoked for the redress of merely private grievances").

[28] Neither Jones nor Von Hollow owns the shorefront area. By separate one-year agreements with SFLECC, most recently executed in April 2016, each party was granted a license to use the shorefront area. The agreements provided, in relevant part, that at the point their properties touch the shorefront area, they could cross the shorefront area to gain access to the lake. The agreements also allowed both Jones and Von Hollow to maintain in the shorefront area an authorized structure for personal and private use upon written, prior permission from SFLECC. The agreements further provided that Jones and Von Hollow were not permitted to place or leave any material in the shorefront area, and any installation of equipment in the area must be approved in writing by SFLECC. Jones was found to have criminally trespassed on the shorefront area. Under her agreement with SFLECC, however, Jones was permitted to access the shorefront area and did not need Von Hollow's consent to do so.

[29] Based on the foregoing, we find the trial court properly determined that Von Hollow did not commit trespass; however, its conclusion that Jones committed criminal trespass under Ind. Code § 35-43-2-2 is not supported by the record and is clearly erroneous. Because the trial court erred when it determined that Jones committed criminal trespass, it also erred when it concluded that Von Hollow was entitled to costs of the action and reasonable attorney fees under Ind. Code § 34-24-3-1 (pecuniary loss as a result of property offenses). We, therefore, reverse the trial court's judgment on this issue.

3. Joint License

[30] Jones next argues the trial court erred when it directed the shorefront area to be "licensed jointly to Jones and Von Hollow by the SFLECC." Appellant's Appendix Volume 2 at 20. Specifically, in its findings of fact and conclusions thereon, the trial court concluded, in relevant part, as follows:

I. Contrary to the traditional definition of exclusive, the evidence clearly shows NIPSCO and its successor the SFLECC have, since their inception, granted both Jones and Von Hollow an exclusive Shore Front License to the very same Shore Front License Area.
J. Jones and Von Hollow have each used the Shore Front License Area for a long period of time and each has made substantial improvements within the Shore Front License Area that should not be disrupted.
K. The Court directs that the Shore Front License Area shall be licensed jointly to Jones and Von Hollow by the SFLECC ....
L. The Court's grant of a joint or co-license to the Shore Front License Area does not permit or grant Jones any right to cross Von Hollow property without its permission. Jones may gain access to the Shore Front License Area by receiving Von Hollow's permission to cross its tail, from other parcels adjoining to the Shore Front License Area[,] or via Lake Freeman.
M. This order does not guarantee or ensure either Von Hollow or Jones will continue to receive Shore Front Licenses from SFLECC.
N. This order does not prohibit SFLECC from specifically defining Parties' license area to mitigate discord and animosity among quarrelling neighbors.

Id. at 20-21 (emphasis added).

[31] Recognizing the discord that existed between the parties with respect to the SFL agreements and each party's rights within the shorefront area, the trial court attempted to mitigate the situation by directing SFLECC to issue the parties joint licenses to use the area. However, SFLECC is not a party to this action. See Ind. Dep't of St. Revenue v. Ind. Gamma Gamma of Alpha Tau Omega, Inc. , 181 Ind. App. 664, 687, 394 N.E.2d 187, 201 (1979) (judgment cannot properly be rendered for or against one not a party to the action). Regardless of its good intentions, the trial court erred by directing SFLECC to issue joint licenses. We reverse the trial court's judgment in this regard.

[32] In conclusion, we affirm the trial court's conclusion that Jones was not entitled to a declaratory judgment that she had a prescriptive easement over Von Hollow's property. However, we reverse the trial court's conclusion that Jones committed criminal trespass, and, therefore, also reverse its conclusion that Von Hollow is entitled to costs and attorney's fees. Finally, we reverse the trial court's conclusion that directed SFLECC to issue joint licenses in the shorefront area.

[33] The judgment is affirmed in part and reversed in part, and we remand for further proceedings consistent with this opinion.

Najam, J. and Robb, J., concur.

      In addition to issuing licenses that permit access to the shorefront area, SFLECC dredges the lake and removes silt material. SFLECC acquired ownership of the shorefront area from Northern Indiana Public Service Company (NIPSCO).

      Jones and Von Hollow argue that the SFL agreements define their specific areas of ownership within the shorefront area and the areas that each can access. Testimony was presented at trial that the shorefront area that Jones could access was separate from that of Von Hollow. A previous SFL agreement was admitted into evidence that included property legal descriptions. Also, evidence was introduced that SFLECC intended to "redefin[e] the license area" and create boundaries within the shorefront area. Exhibit 8 at 47, 49. However, these intended boundaries were never created. The previous SFL agreement that included legal descriptions is no longer in effect, as subsequent agreements have been executed by the parties; and, the most recently executed SFL agreements (from April 2016) do not define boundaries within the shorefront area or include property legal descriptions. The most recent agreements state only that each party is permitted to pass from the party's land "over such part of the adjoining lands of [SFLECC]." Id. at 74; Exhibit A at 13.


source: Caselaw Access Project

author: Vaidik, Chief Judge.

license: Public Domain

text:
    Wayne and Donna KIRCHGESSNER, Appellants-Plaintiffs, v. Betty KIRCHGESSNER, Albert Kirchgessner, Norbert Kirchgessner, Marcella Kirchgessner, Stephen Kirchgessner, Mary Ann Lee, Fred Kirchgessner, Mary Ann Emil Kirchgessner Junior, Mary Kirchgessner, Edward Kirchgessner, Ted Graf, Marcella Graf, James Fessel, Mildred Fessel, Martha Rhodes, Everett Rhodes, Mary Kirchgessner, Clifford Kirchgessner, Julia Bowe, Norbert Renn, Adelaide Renn, Board of Commissioners, Clark County, Indiana, and the Commissioners Paul Garrett, Larry Coates, Larry Dean in their official capacities, Appellees-Defendants
    Court of Appeals Case No. 10A01-1710-CP-2309
    Court of Appeals of Indiana.
    FILED May 29, 2018
    Attorney for Appellants: John A. Kraft, Young, Lind, Endres & Kraft, New Albany, Indiana
    Attorney for Appellees: Matthew J. McGovern, Anderson, Indiana
   Vaidik, Chief Judge.

Case Summary

[1] Indiana Rule of Trial Procedure 60(B)(7) allows a court to grant relief from a judgment if (1) "the judgment has been satisfied, released, or discharged," (2) "a prior judgment upon which it is based has been reversed or otherwise vacated," or (3) "it is no longer equitable that the judgment should have prospective application." Rule 60(B) provides that a motion for such relief "shall be filed within a reasonable time." In this case, the trial court granted relief under the third clause of Rule 60(B)(7)-the "no longer equitable" provision-and the appealing parties argue that the motion was not filed within a reasonable time. We have said that what constitutes a "reasonable time" under Rule 60(B) depends on the specific circumstances of each case. Here, the motion was filed more than twenty-five years after the judgment was entered. That is a long time. But under the unique circumstances of this case, it was not an unreasonable time. We therefore affirm the decision of the trial court.

Facts and Procedural History

[2] In 1949, Anthony, Emil, and Fred Kirchgessner acquired a large tract of land in western Clark County. The land is situated north of St. John Road, and members of the Kirchgessner family have accessed the land using Kruer Road, which runs north from St. John Road. The large tract was gradually broken up, and Wayne and Donna Kirchgessner purchased a forty-acre parcel from Anthony Kirchgessner's estate in June 1984.

[3] Just over a year later, Wayne and Donna filed a lawsuit against the owners of nearby parcels, including numerous other Kirchgessners, and the Clark County Board of Commissioners. Regarding the non-government defendants, Wayne and Donna alleged that their parcel was "landlocked," that Kruer Road was "the only way of ingress and egress," and that defendants Albert and Betty Kirchgessner "have harrassed [sic] and physically prevented use of Kruer Road and have denied Plaintiffs access to their property[.]" Appellants' App. Vol. II p. 16. They asked the court to "[q]uiet title to the easement claimed by Plaintiffs known as Kruer Road" and sought damages related to the alleged blocking of the road. Id. at 17-18. As to the county commissioners, Wayne and Donna claimed that Kruer Road "has been maintained as a Clark County road since at least 1967," that before they bought their parcel one of the commissioners "represented" to Wayne "that Kruer Road was a County road and would be maintained as such," that Wayne "relied upon said representation at the time he purchased his property in 1984," and that the county "has since failed to maintain said road to the detriment of Plaintiffs and as a result thereof Plaintiff[s'] property value has decreased." Id. at 16. Wayne and Donna asked the court to "[d]eclare the roadway known as Kruer Road[ ] a County Road and order the Clark County Board of Commissioners to resume the maintenance of Kruer Road as a County Road for the benefit of Plaintiffs and Defendants." Id. at 18.

[4] What happened with the case over the next four years is unclear from the record, but in September 1989, Wayne and Donna filed an amended complaint. Their allegations with regard to the non-government defendants remained largely the same, but they added further detail to their claim that Kruer Road was a "county road." Id. at 24, 26.

[5] In an answer to the amended complaint, a group of the non-government defendants, including Albert and Betty Kirchgessner, explained that they were not opposed to having their property crossed by Wayne and Donna but that there was a dispute regarding the appropriate path of the crossing. The same defendants later entered into a Stipulation of Facts with Wayne and Donna, which in turn was attached to a motion for summary judgment that Wayne and Donna filed in April 1990. The parties stipulated that Kruer Road was a "Clark County road" and that, even if it were not, it "may be used by Wayne and Donna Kirchgessner [and] their heirs, successors and assigns to gain access to their property[.]" Id. at 35, 36. The stipulation also included provisions addressing how future obstructions of and improvements to the road would be handled. In light of the stipulation by the non-government defendants, Wayne and Donna's memorandum in support of their motion for summary judgment was directed entirely at the government defendants, focusing on the claim that Kruer Road was a county road.

[6] In their response to Wayne and Donna's motion, the government defendants disputed that Kruer Road was an official "county road," a designation that they said only the county itself could make, and one that would impose heightened maintenance burdens and legal liabilities on the county. Id. at 55-63. However, they acknowledged a history of county maintenance of the road, and they indicated that they would have no objection to the court declaring the road a "public highway by use" and ordering them to perform limited maintenance on the road (laying gravel "from time to time"). Id. at 61-63. The government defendants described this as "[a]n ideal resolution of the family dilemma that brought this matter to court[.]" Id. at 62-63.

[7] On October 1, 1990, the trial court issued its order on Wayne and Donna's motion ("1990 Entry"). The court declared the road a "public highway by use" and "approve[d] the agreement of the governmental defendants" to maintain the road as proposed. Id. at 67. The court added that "[t]he previously tendered Stipulation between the plaintiffs and the non-governmental defendants is hereby ordered withdrawn[.]" Id. at 68. The court concluded, "That Judgment is now hereby entered in favor of plaintiffs in accord with the terms hereof. Further, upon plaintiffs' motion, the remainder of this entire action is hereby ordered dismissed with prejudice." Id.

[8] Fast forward twenty-two years. In late 2012, the county paved a new Kruer Road adjacent to the original road. Three years later, in December 2015, Richard and Theresa Williams filed a Motion to Vacate Summary Judgment Entry of October 1, 1990. They claimed that the original Kruer Road runs through their property, that "the newly paved Kruer Road is the primary access road over which vehicles regularly travel and it replaced the former 'roadway,' " and that "the need for any commissioner involvement on the former 'roadway' from 1990 is no longer in existence." Id. at 70-71. They argued that "[t]here is no legal reason to continue the existence of the 'roadway' and to, by extension, continue this burden or cloud on the title of the real estate owned by your movants" and that if the 1990 Entry is vacated the county commissioners "will no longer be exposed to any risk of liability in an old roadway that has been replaced by the newly paved Kruer Road." Id. at 71-72.

[9] Wayne and Donna filed an opposition to the motion, and the trial court held a hearing. The parties treated the motion as one for relief from judgment under Indiana Trial Rule 60(B). Wayne testified, and when asked why he didn't want the original Kruer Road to be vacated, he said, "I've been using it for forty-three (43) years, that my grandpa built, so I'm going to continue to use that road until somebody tells me I can't or stops me from using it." Tr. p. 143.

[10] After the hearing, the trial court issued an order granting the Williamses' motion. The court cited Rule 60(B)(7), which allows for relief from judgment if (1) "the judgment has been satisfied, released, or discharged," (2) "a prior judgment upon which it is based has been reversed or otherwise vacated," or (3) "it is no longer equitable that the judgment should have prospective application." Specifically, the court relied on the third clause-the "no longer equitable" provision:

Given that the Commissioners have eliminated (by building [the new Kruer Road] ) the 1990-based need for a court-created roadway, the exigencies for the 1990 temporary roadway have been eliminated. The court, given all the circumstances and risks involved, concludes that it is necessary to vacate the roadway portion of the 1990 Entry and that the same should no longer have prospective effect. T.R. 60(B)(7)[.]

Appellants' App. Vol. II p. 180. The court said that Wayne and Donna could no longer "enter upon" the original Kruer Road and that the Williamses are free to "close off all access" to it. Id. at 182.

[11] Wayne and Donna now appeal.

Discussion and Decision

[12] Wayne and Donna launch several attacks on the trial court's decision, but the only one that requires detailed discussion is their argument that the Williamses' Rule 60(B) motion was untimely. The rule includes eight sub-paragraphs that set forth different grounds for granting relief from judgment. Ind. Trial Rule 60(B). A motion under sub-paragraph (1), (2), (3), or (4) must be filed "not more than one year after the judgment, order or proceeding was entered or taken," while a motion under sub-paragraph (5), (6), (7), or (8) "shall be filed within a reasonable time." Id. In this case, the trial court granted relief because it found-under the third clause of sub-paragraph (7)-that it would no longer be equitable for the 1990 Entry to have prospective application. As such, the question is whether the motion was filed "within a reasonable time." The determination of what constitutes a "reasonable time" for purposes of Rule 60(B) is a matter within the trial court's discretion. Jordan v. State , 549 N.E.2d 382, 384 (Ind. Ct. App. 1990), reh'g denied , trans. denied . Therefore, we will reverse only for an abuse of that discretion.

[13] Determining whether a motion under Rule 60(B) was filed within a reasonable time "depends on the circumstances of each case, as well as the potential prejudice to the party opposing the motion and the basis for the moving party's delay." Parham v. Parham , 855 N.E.2d 722, 728 (Ind. Ct. App. 2006), trans. denied . Here, Wayne and Donna focus on the fact that the Williamses filed their motion twenty-five years after judgment was entered. "Inherently," they say, "asking for relief from a judgment after twenty-five years is not within a reasonable period of time." Appellants' Br. p. 15.

[14] But the fact that judgment was entered more than twenty-five years ago must be balanced against the fact that the change giving rise to the motion-the construction of the new Kruer Road-did not occur until late 2012. Wayne and Donna make no argument that the Williamses contributed to the delay in the construction of the new road, that they could have done something to get the road built sooner, or that they should have filed their motion sooner than they did. Furthermore, Wayne and Donna offer no response to the following explanation by the Williamses for the three-year delay between the construction of the new road and the filing of the motion in December 2015:

In the three year period between [the opening of the new Kruer Road] and the motion for relief from the 1990 order, [the Williamses] diligently conducted title searches to ascertain all persons who would be affected by the vacation of "Old Kruer Road." They then obtained consent forms from each of these property owners. [The Williamses] also obtained a consent from Clark County. Significantly, [the Williamses] obtained this consent on October 22, 2015. [The Williamses] filed their motion for relief from the judgment less than six weeks later .

Appellees' Br. p. 26 (citations omitted). Wayne and Donna do not deny that the Williamses did all those things, nor do they argue that it should have taken the Williamses less than three years to do them, nor do they otherwise assert that three years was an unreasonable amount of time. In fact, in addressing the timeliness of the motion, Wayne and Donna don't even mention the new Kruer Road, let alone the fact that it was built twenty-two years after the judgment.

[15] There is no question that twenty-five years is a long time. However, that does not necessarily mean it was an unreasonable time. Again, determining the timeliness of a motion under Rule 60(B)(7) requires consideration of the specific circumstances of the case, see Parham , 855 N.E.2d at 728, and we afford our trial courts discretion in making such determinations, Jordan , 549 N.E.2d at 384. In this unique case-where the county didn't build the new road until twenty-two years after the original judgment, and where the Williamses could not have filed a viable 60(B) motion before the new road opened-we cannot say that the trial court abused that discretion by finding the motion to be timely.

[16] Wayne and Donna argue that even if the Williamses' motion was timely, the "no longer equitable" clause of Rule 60(B)(7) is not applicable in this case. They acknowledge that the construction of the new Kruer Road constituted a change in circumstances but argue that it was reasonably foreseeable when judgment was entered in 1990 and therefore should not be the basis for the equitable relief contemplated by the third clause of 60(B)(7). Appellants' Reply Br. p. 10 (citing State v. Martinsville Dev. Co. , 174 Ind.App. 157, 366 N.E.2d 681, 684 (1977) ). We tend to agree with the trial court's assessment that it would be inequitable, given the availability of the new Kruer Road, to require the Williamses and the county to continue bearing the burdens and risks associated with the original road. In any event, Wayne and Donna didn't make their "reasonably foreseeable" argument-in fact, they didn't mention the third clause of Rule 60(B)(7) at all-until their reply brief, leaving the Williamses no chance to respond. "[A]n argument raised for the first time in a reply brief is waived." U.S. Gypsum, Inc. v. Ind. Gas Co. , 735 N.E.2d 790, 797 n.5 (Ind. 2000).

[17] The remainder of Wayne and Donna's arguments can also be easily disposed of. They say that the 1990 Entry was an "agreed judgment" and argue that Rule 60(B) relief is not available for agreed judgments. The Williamses assert that Wayne and Donna did not make this claim in the trial court, thereby waiving it for purposes of appeal. Wayne and Donna do not dispute this in their reply brief. As such, we hold that the issue is waived. See Cavens v. Zaberdac , 849 N.E.2d 526, 533 (Ind. 2006) ("Issues not raised at the trial court are waived on appeal.").

[18] Wayne and Donna also note that the trial court characterized the 1990 Entry as an interlocutory order, and they cite our holding in Mitchell v. 10th and The Bypass, LLC that Rule 60(B) does not authorize a motion for relief from an interlocutory order. 973 N.E.2d 606, 612 (Ind. Ct. App. 2012). What they fail to recognize is that our Supreme Court granted transfer in Mitchell and reached the opposite conclusion. Mitchell v. 10th and The Bypass, LLC , 3 N.E.3d 967, 974 (Ind. 2014) ("LLC is not precluded from seeking Trial Rule 60(B) relief from the trial court's January 2010 order on grounds that the order was not a final judgment.").

[19] Finally, Wayne and Donna contend that the trial court placed the burden of proof on them instead of on the Williamses. They cite the court's conclusion that "Wayne and Donna have not put forth any evidence, or prima facie claim, to establish a meaningful, legal or equitable reason why the [Motion to Vacate]

should not be granted." Appellants' App. Vol. II p. 181. But nothing in the rest of the court's order, or elsewhere in the record, suggests that this statement was anything more than an observation that Wayne and Donna failed to rebut the Williamses' showing that the 1990 Entry has become inequitable.

[20] Because the trial court acted within its discretion in finding the Williamses' Rule 60(B) motion to be timely, and because Wayne and Donna have not demonstrated any other error, we affirm the trial court's grant of the motion.

[21] Affirmed.

Barnes, J., and Pyle, J., concur.

      Also in 1989, the original 1985 case number (85-S1-90) was replaced with the current 1989 case number (10C01-8906-CP-214).

      The Williamses were not parties to the original litigation, but Theresa's mother, Mary Kirchgessner, was. Mary joined in the motion to vacate, but she died while it was pending. In Wayne and Donna's response to the motion, they challenged the Williamses' "standing" to pursue the motion, see Appellants' App. Vol. II p. 141, but they don't raise any such argument on appeal.

      The trial court also found that the Williamses had satisfied Rule 60(B)(8), which provides for relief from judgment for "any reason justifying relief from the operation of the judgment, other than those reasons set forth in sub-paragraphs (1), (2), (3), and (4)." Wayne and Donna challenge that conclusion on appeal, but because we affirm the trial court's conclusion that relief is appropriate under Rule 60(B)(7), we need not address 60(B)(8).

      In 1998, several people executed a "Grant of Easements" purporting to give Wayne and Donna an easement over Kruer Road. See Appellants' App. Vol. II pp. 166-71. In its order granting relief from judgment, the trial court found any claim to a private "easement" based on that document to be "void and of no legal effect" given the conflict with the 1990 declaration that the road is a "public highway by use." Id. at 177-78. Wayne and Donna do not challenge that part of the trial court's order.

      The availability of the new Kruer Road is also fatal to Wayne and Donna's claim that they will be "severe[ly]" prejudiced by the closing of the original road. See Appellants' Br. p. 16.


author: Mathias, Judge. Najam, Judge, concurring.

text:
    Rickie HENDERSON, Appellant-Petitioner, v. Elliott KLEINMAN, D.P.M., Appellee-Respondent.
    Court of Appeals Case No. 84A01-1710-CT-2566
    Court of Appeals of Indiana.
    FILED May 30, 2018 As Corrected August 21, 2018
    Attorney for Appellant: Eric A. Frey, Frey Law Firm, Terre Haute, Indiana
    Attorneys for Appellee: John D. Nell, Jere A. Rosebrock, Wooden McLaughlin, LLP, Indianapolis, Indiana
   Mathias, Judge.

[1] Rickie Henderson ("Henderson") filed a complaint in Vigo Superior Court against Dr. Elliott Kleinman ("Dr. Kleinman"). The complaint alleged that Dr. Kleinman failed to meet the applicable standard of care both in his record keeping and in his treatment of Henderson. Summary judgment proceedings ensued, and the trial court granted summary judgment in Dr. Kleinman's favor after concluding that the doctor was entitled to judgment as a matter of law. Henderson appeals and argues that the trial court erred when it granted Dr. Kleinman's motions for summary judgment and disregarded the medical review panel's opinion that Dr. Kleinman's record keeping failed to meet the applicable standard of care.

[2] We affirm.

Facts and Procedural History

[3] Henderson was a patient of Dr. Kleinman's for approximately five years, and during that time he performed three surgeries on Henderson's right foot and ankle. The most recent surgery, which is at issue in this appeal, was performed on August 27, 2010. Henderson presented to Dr. Kleinman with continued pain in her right foot, and the doctor performed several surgical procedures on her foot on that date.

[4] Henderson continued to experience pain after the surgery. After several follow up appointments with Dr. Kleinman, Henderson sought a second opinion from Dr. Dominic DiPierro in January 2012. Henderson reported her post-surgery pain to the doctor, and he believed that Henderson's pain was the direct result of the 2010 surgery.

[5] As required by Indiana's Medical Malpractice Act, on August 24, 2012, Henderson filed her proposed complaint against Dr. Kleinman with the Indiana Department of Insurance. Henderson's complaint alleged that "[i]n performing the [August 27, 2010] surgery, Kleinman failed to meet the appropriate standard of care for podiatry and orthopedic surgery." Appellant's App. Vol. II, p. 27. And "as a proximate result of the failure of the defendant to meet the standard of care, plaintiff sustained severe and permanent damage to her right foot and ankle and is permanently impaired." Id.

[6] The Medical Review Panel ("the Panel") reviewed her complaint and Henderson's patient records. On April 16, 2015, the Panel issued the following opinion:

The panel is of the unanimous opinion that the record keeping of the Defendant fails to meet the standard required, and that the lack of documentation makes it impossible for the panel to decide whether the evidence supports or does not support a conclusion that the Defendant failed to comply with the appropriate standard of care in his treatment of the Plaintiff.

Appellant's App. Vol. II, p. 86.

[7] Thereafter, Henderson filed a complaint against Dr. Kleinman in Vigo Superior Court. The complaint alleged:

2. In performing the surgery and preparing medical records of his care and treatment of the plaintiff, Dr. Kleinman failed to meet the appropriate standard of care for podiatrists and orthopedic surgeons.
3. Plaintiff's claim was presented to a medical review panel pursuant to Indiana's Medical Malpractice Act, and the Medical Review Panel found that the defendant failed to meet the standard of care in keeping records of his care and treatment of the plaintiff and that the Panel could not determine as a result of those poor records that the actual surgery he performed was within the standard of care.
4. That the plaintiff was injured and damaged as a result of the surgery and negligent failure of the defendant to perform within the applicable standard of care.

Appellant's App. Vol. II, pp. 16-17.

[8] On June 28, 2017, Dr. Kleinman filed a motion for partial summary judgment and argued that Indiana law does not impose a legal duty on physicians to keep any particular type of patient medical records. And therefore, Henderson does not have an actionable claim arising out of Dr. Kleinman's method of record keeping. Dr. Kleinman also argued that even if the duty did exist, Henderson has not established a causal connection between the breach of that duty and her alleged injuries.

[9] Shortly thereafter, Dr. Kleinman filed a motion for summary judgment and argued that he performed the August 27, 2010 surgery within the applicable standard of care and was therefore entitled to judgment as a matter of law. In support of his summary judgment motions, Dr. Kleinman designated the affidavit of Dr. J. Michael Miller, D.P.M., F.A.C.A.S. ("Dr. Miller"). In his affidavit, Dr. Miller stated that Dr. Kleinman's surgical and office visit records "provided [him] with sufficient information to reliably formulate and render" his opinion on whether Dr. Kleinman met the applicable standard of care. Appellant's App. Vol. III, p. 19. The doctor stated that Dr. Kleinman met the applicable standard of care in his diagnosis and treatment of Henderson and concluded that "the surgical procedures which [Dr. Kleinman] employed to treat Mrs. Henderson on August 27, 2010 were performed appropriately and within the applicable standard of care." Id.

[10] In response to Dr. Kleinman's motions, Henderson designated the Panel opinion and the depositions of the panel members discussing the inadequacy of Dr. Kleinman's record keeping. Henderson did not designate any evidence to counter Dr. Miller's opinion that Dr. Kleinman's diagnoses and treatment of Henderson met the applicable standard of care.

[11] On October 3, 2017, the trial court granted Dr. Kleinman's motion for summary judgment and entered judgment in the doctor's favor. Henderson now appeals. Additional facts will be provided as necessary.

Standard of Review

[12] When we review the entry of summary judgment, we apply the same standard as the trial court. City of Lawrence Util. Serv. Bd. v. Curry , 68 N.E.3d 581, 585 (Ind. 2017). Summary judgment is appropriate only when "the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C). An issue is "genuine" if a trier of fact is required to resolve the truth of the matter; a fact is "material" if its resolution affects the outcome of the case. Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014).

[13] Summary judgment is a "blunt instrument" by which the non-prevailing party is prevented from resolving its case at trial. Id. Because of this, our supreme court has cautioned that summary judgment "is not a summary trial" and courts on appeal should carefully "assess the trial court's decision to ensure [a party] was not improperly denied [their] day in court." Id. at 1003-04 (citations omitted). In other words, "Indiana consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims." Id. at 1004.

Discussion and Decision

[14] Henderson argues that a physician has a duty to maintain and keep adequate patient records. Therefore, the Panel opinion "establishes that there was evidence presented to the trial court demonstrating a failure to meet the standard of care with regard to defendant's legal duty to keep and maintain adequate records of the plaintiff's care." Appellant's Br. at 7.

[15] To establish a prima facie case of medical malpractice, a plaintiff must demonstrate: (1) a duty on the part of the defendant in relation to the plaintiff; (2) a failure to conform her conduct to the requisite standard of care required by the relationship; and (3) an injury to the plaintiff resulting from that failure. Sorrells v. Reid-Renner , 49 N.E.3d 647, 651 (Ind. Ct. App. 2016) (citing Thomson v. St. Joseph Reg'l Med. Ctr. , 26 N.E.3d 89, 93 (Ind. Ct. App. 2015) ). The plaintiff must come forth with expert medical testimony establishing: (1) that the doctor owed a duty to the plaintiff; (2) that the doctor breached that duty; and (3) that the doctor's breach proximately caused the plaintiff's injuries. Siner v. Kindred Hosp. Ltd. P'ship , 51 N.E.3d 1184, 1187 (Ind. 2016) ; Sorrells , 49 N.E.3d at 651.

[16] A unanimous opinion of the medical review panel establishing that the doctor failed to comply with the appropriate standard of care and that the doctor's conduct was a factor in causing the patients resultant damages is "ordinarily sufficient" to meet the patient's initial burden to show that there was no genuine issue of material fact. See Siner , 51 N.E.3d at 1187-88 ; Scripture v. Roberts , 51 N.E.3d 248, 252 (Ind. Ct. App. 2016). The burden then shifts to the doctor to designate sufficient expert testimony "setting forth specific facts showing the existence of a genuine issue" of material fact. Scripture , 51 N.E.3d at 252.

[17] Moreover, an Indiana summary judgment movant may not rely on a non-movant's failure to designate evidence in support of each element of her claim. Hughley , 15 N.E.3d at 1003. Rather, Indiana practice places the burden on the movant affirmatively to negate-that is, to designate evidence disproving-an element of the non-movant's claim. Id. If carried, the burden then shifts to the non-movant to come forward with contrary evidence requiring resolution by a trier of fact. Id.

[18] This is an extremely unusual case. There is no statutory authority or reported case law establishing a duty to maintain "adequate" records. Indiana Code section 16-39-7-1 requires doctors to keep records, and it would not be unreasonable to conclude that the duty to keep records requires that the doctor's records be adequate to determine what facts the doctor relied on to make a diagnosis, including the patient's relevant medical history, and the course of treatment recommended by the doctor. At a minimum a doctor's records should include sufficient information so that the Medical Review Panel can make a determination whether the doctor met the applicable standard of care. And if the sufficiency of medical records was a controlling factor in the determination of whether Dr. Kleinman's treatment of Henderson met the applicable standard of care, our review would end here.

[19] However, even if we assume that a physician has a duty to keep adequate records, whether Dr. Kleinman kept adequate records is a question of fact. In support of his motion for summary judgment, Dr. Kleinman designated the affidavit of Dr. Miller who stated that Dr. Kleinman's surgical and office visit records "provided [him] with sufficient information to reliability formulate and render" his opinion on whether Dr. Kleinman met the applicable standard of care. Appellant's App. Vol. III, p. 19. In response, Henderson designated the Panel's opinion that "the record keeping of the Defendant fail[ed] to meet the standard required." Appellant's App. Vol. II, p. 86. But under the facts and circumstances of this case, this factual issue does not mandate reversal of the trial court's entry of summary judgment in favor of Dr. Kleinman.

[20] Importantly, in his summary judgment motion, Dr. Kleinman also argued that in treating Henderson, he met the applicable standard of care. In support of his argument, he again designated Dr. Miller's affidavit. Dr. Miller, whose specialty is also podiatry, reviewed Dr. Kleinman's records of his office visits with Henderson and her surgical records. Dr. Miller concluded:

Based upon my education, training and experience, and the records which I have reviewed, it is my opinion based upon a reasonable degree of medical certainty that Dr. Kleinman met the standard of care in all respects in his care and treatment of Mrs. Henderson and, in particular, with respect to his diagnoses and treatment rendered in 2010.
Based on my training and experience, and Dr. Kleinman's operative note, the surgical procedures which he employed to treat Mrs. Henderson on August 27, 2010 were performed appropriately and within the applicable standard of care.

Appellant's App. Vol. III, p. 19.

[21] Dr. Kleinman also designated the deposition testimony of Panel member Dr. Oglesby who stated that there was nothing in the medical records that he reviewed that led him to believe that Dr. Kleinman failed to meet the standard of care in treating Henderson. Id. at 75. Dr. Henning, another review panel member, opined that Dr. Kleinman appropriately performed the surgical procedures during Henderson's August 27, 2010 surgery. Id. at 77. The third panel member, Dr. McGowan also stated in his deposition that from the surgical records it appeared that the procedures were appropriately performed and the surgical procedures were within the range of appropriate treatment for Henderson's diagnosis. Id. at 79.

[22] In response to the motion for summary judgment, Henderson did not designate any evidence that would establish that Dr. Kleinman's treatment of her fell below the applicable standard of care. And if Dr. Kleinman did not breach his duty to Henderson, her claim for medical malpractice fails as a matter of law.

[23] Henderson believes that the Panel opinion rebuts Dr. Miller's opinion that Kleinman met the applicable standard of care. But the Panel only found that "lack of documentation makes it impossible for the panel to decide whether the evidence supports or does not support a conclusion that the Defendant failed to comply with the appropriate standard of care in his treatment of the Plaintiff." Appellant's App. Vol. II, p. 86. We firmly believe that the presence or absence of medical records is certainly a factor in the determination of whether or not medical malpractice occurred in any case. However, in the face of an admissible affidavit from a competent expert opining that Dr. Kleinman's care of Henderson was within the applicable standard of care notwithstanding his extremely poor recordkeeping and deposition testimony from Panel members that the surgeries were adequately performed and appropriate for Henderson's diagnosis, it is inadequate as a matter of law to respond solely by pointing only to the Panel's finding that Dr. Kleinman's recordkeeping failed to meet the applicable standard.

[24] Dr. Kleinman met his burden as the summary judgment movant to affirmatively negate an element of Henderson's claim. The burden then shifted to Henderson to come forward with contrary evidence requiring resolution by a trier of fact. See Hughley v. State , 15 N.E.3d at 1003. Henderson failed to do so. We therefore affirm the trial court's grant of summary judgment in Dr. Kleinman's favor.

[25] Affirmed.

Barnes, J., concurs.

Najam, J., concurs with a separate opinion.

Najam, Judge, concurring.

[26] I concur, but write separately to emphasize the injustice caused by Dr. Kleinman's failure to maintain adequate and accurate medical records, which prevented the Medical Review Panel from rendering an opinion on the merits of Henderson's medical malpractice claim. As our Supreme Court has acknowledged, "the '[m]aintenance of health records by providers' is ... closely entwined with health care and ... records in general are ... important to a medical review panel's assessment of whether the appropriate standard of care was met." Howard Reg'l Health Sys. v. Gordon , 952 N.E.2d 182, 186 (Ind. 2011). It should follow, then, that a health care provider's failure to maintain documentation of a patient's treatment sufficient to enable a Medical Review Panel to form an opinion on alleged medical malpractice would support a claim against the provider. I urge our Legislature to amend the Act to provide that health care providers have an affirmative duty to maintain adequate and accurate medical records and that a violation of that duty could support a prima facie medical malpractice claim.

[27] A health care provider's failure to maintain adequate and accurate medical records is the functional equivalent of spoliation of evidence. While our courts do not recognize an independent tort claim for first party spoliation of evidence, "[i]n Indiana, the exclusive possession of facts or evidence by a party, coupled with the suppression of the facts or evidence by that party, may result in an inference that the production of the evidence would be against the interest of the party which suppresses it." Porter v. Irvin's Interstate Brick & Block Co. , 691 N.E.2d 1363, 1364-65 (Ind. Ct. App. 1998). Such an inference could defeat a summary judgment motion. See, e.g. , Dawson v. Hummer , 649 N.E.2d 653, 661 (Ind. Ct. App. 1995) (holding where evidence gives rise to conflicting inferences summary judgment is inappropriate).

[28] Here, Dr. Kleinman had exclusive control over the creation of Henderson's medical records, which evidence was a necessary predicate for her medical malpractice claim. The inadequacy of those records is akin to the suppression of evidence and supports an inference that adequate medical records would have been against Dr. Kleinman's interest. As the majority observes, it would be reasonable to assert that a health care provider has an affirmative duty to maintain adequate and accurate records. Such a duty is wholly meaningless without a consequence for a failure to comply. See, e.g. , Shirey v. Flenar , 89 N.E.3d 1102, 1112 (Ind. Ct. App. 2017) (Baker, J., concurring). Here, the Medical Review Panel's inability to evaluate Henderson's malpractice claim due to a "lack of documentation" should be sufficient to withstand Dr. Kleinman's summary judgment motion. Appellant's App. Vol. II at 86. Nonetheless, we must strictly construe the Act, and because Henderson did not designate any evidence to show that Dr. Kleinman's conduct fell below the applicable standard of care, I am compelled to agree with the majority that summary judgment for Dr. Kleinman is required.

      See Indiana Code § 34-18-8-4.

      In the trial and appellate proceedings in this case, Dr. Kleinman argued that even if the duty to maintain "adequate records" was recognized, and if a trier of fact found that he breached that duty, Henderson cannot establish that the breach was the proximate cause of any claimed injuries. Henderson failed to respond to that argument both at the trial level and in these proceedings.

      From our review of the record, it appears that the panel was more concerned with the adequacy of Henderson's office visit records, but not the surgical records. In their depositions, the panel members discussed omissions from the records of the office visits, including the lack of patient history and the lack of discussion of more conservative treatment options.

      Henderson included her records of patient visits with Dr. Dominic DiPierro in her Appendix. But it does not appear from the record that these patient records were designated to the trial court with her response to Dr. Kleinman's motion for summary judgment.

      With her memorandum in opposition to Dr. Kleinman's motions for summary judgment, Henderson only designated the Panel opinion and portions of Dr. Henning's and Dr. McGowan's depositions, who were both members of the Panel.


author: Pyle, Judge.

text:
    Marva Deskins HAMILTON, Appellant-Petitioner, v. Michael HAMILTON, Appellee-Respondent.
    Court of Appeals Case No. 29A02-1710-DR-2428
    Court of Appeals of Indiana.
    FILED May 31, 2018
    Attorneys for Appellant: Darlene R. Seymour, Bryan L. Ciyou, Ciyou & Dixon, P.C., Indianapolis, Indiana
    Attorney for Appellee: Janice Mandla Mattingly, Janice Mandla Mattingly, P.C., Carmel, Indiana
   Pyle, Judge.

Statement of the Case

[1] Marva Deskins Hamilton ("Mother") appeals the child custody order entered following the dissolution of her marriage to Michael Hamilton ("Father"). Mother specifically argues that the trial court abused its discretion in awarding primary physical custody of their daughter, L.H., to Father. Finding no abuse of the trial court's discretion, we affirm the trial court's judgment.

[2] We affirm.

Issue

Whether the trial court abused its discretion in awarding primary physical custody of L.H. to Father.

Facts

[3] When Mother and Father began dating in 2011, Mother lived in Maryland with her fourteen-year-old daughter, I.D., and Father lived in Indianapolis. Father visited Mother regularly in Maryland but told her that he would never move because he was actively involved in the life of his three-year-old son, I.H., who lived in Indianapolis. I.H. spent three to four nights per week and every third weekend with Father.

[4] Mother and Father eventually married in June 2013. Mother continued to live in Maryland with I.D., and Father continued his regular visits. In March 2014, Mother gave birth to the parties' daughter, L.H. Father was present for the birth and stayed with Mother, L.H., and I.D. for two weeks after L.H.'s birth. Four months later, Mother, I.D., and L.H. moved to Indianapolis. Mother and Father eventually purchased a home in Hamilton County where I.H. attended school.

[5] Mother, an attorney, obtained employment at a law firm, where she earned an annual base salary of $120,000, with the potential to earn an additional $30,000 in annual performance bonuses for reaching certain employment-related goals. Father is a firefighter/emergency medical technician who works a twenty-four-hour shift every third day. He earns $80,000 per year.

[6] The parties shared household responsibilities during their marriage. Father frequently took L.H. to daycare and picked her up at the end of the day. On Father's days off from the firehouse, he fixed dinner, supervised homework, and got L.H. ready for bed. He was familiar with the pediatrician's recommendations for L.H.'s asthma treatment in the event she had difficulty breathing. L.H. was very close to both her brother, I.H., and her sister, I.D. Father's parents, who lived nearby, were actively involved in all of the children's lives and provided transportation for the children on the days that both parents worked.

[7] In October 2016, Mother filed a petition for legal separation, and in November 2016, Father filed a petition for dissolution. On March 7, 2017, the parties entered into an agreed preliminary order regarding parenting time with three-year-old L.H. and distribution of the parties' property. Later that month, Mother filed a notice of intent to relocate to Maryland and a request for a final custody hearing, wherein Mother advised Father and the trial court that she intended to relocate to Maryland with L.H. by July 1, 2017. Father filed an objection to the relocation and a petition for physical custody of L.H. in April 2017.

[8] The trial court held a three-day hearing on custody, child support, and parenting time in June and July 2017. Testimony at the hearing revealed that in October 2016, Mother learned that her former federal government job in Maryland might be available. Without telling Father, Mother began researching schools in the Maryland area and applied for L.H. to attend the Langley School ("Langley"), a private school, which is located in Virginia and offers foreign languages, art, and music. In early March 2017, Mother received notice that L.H. had been accepted at Langley and had received a considerable financial aid package. Mother visited Maryland later in March 2017 for a job interview, and while she was there, she took L.H. to visit Langley. Thereafter, Mother placed a deposit at Langley to hold L.H.'s spot. Mother never mentioned Langley to Father.

[9] Mother further testified that she had not been happy with her law firm job in Indianapolis and had never met the billable hour requirement. She planned to return to her former job and house in Maryland less than a week after the hearing. She had already sent all of her belongings to Maryland, and they were in a storage facility. Mother explained that because of the flexible alternative work schedules and hours, government holidays and vacation policy, she would have flexibility in her job to spend more time with L.H. She would earn $146,000 per year. According to Mother, she also had church, family, and educational contacts in the Maryland area. Mother further testified that L.H. had a close bond with both I.H. and I.D., and that I.D. would be attending college in New Jersey in the fall. Mother admitted that, although she had always discussed the choice of schools for I.D. with I.D.'s father, she had not discussed Langley with Father. During cross-examination, Mother admitted that she had not investigated schools or government jobs in the Indianapolis area. She also told the trial court that she planned to move to Maryland "whether [the] court award[ed] custody to [her] or not." (Tr. 160).

[10] Father testified that he would not be able to move to Maryland because of his relationship with I.H. He expressed concern that if Mother relocated to Maryland, she would not communicate with him about L.H. He told the trial court that his parents would help him with L.H. on the days that he had to work and that L.H. would be his primary focus if he was awarded physical custody of her.

[11] At the end of the hearing, the trial court stated as follows:

I'll tell you one thing that stuck out at me that bothers me, then I'll get to my order. And the thing that bothers me is that in January, I think it was, that [Mother] was looking for a school for her daughter in the D.C. area. Yeah, that occurred before a job interview. Yeah, that occurred before she had a job offer. But I feel like that [Mother] already has both feet out the door, all her stuff is already in D.C., decisions were already made, and at this point it's whether or not I basically rubberstamp [Mother's] decision to move to Washington, D.C. with [L.H.] And the other factor that I found concerning was that when asked specifically about school decisions for [I.D.], [Mother] indicated she always-she specifically said always-talked to [I.D.'s father] about enrolling [I.D.] wherever she was going to put her in school, whether it be in the District area, or if it was-when she was in kindergarten or when she went to Carmel High School. She always contacted [I.D.'s father] .... We have an effort, at this point, where she's not extended that same courtesy to [Father] with regards to a child that is three years old and trying to move the child out of state. I find that problematic .... So I just want the parties to know that I care about your situation. I have agonized about this since I first met the two of you ... like, two weeks ago .... But the thing is, is that this is tough. I do-as I told the lawyers this morning, I don't have a situation where both of you are-or one of you is a bad person. At no point have I heard anything that leads me to believe that-anything other than you both love your daughter, you both want what's best for her, you both want each other involved with her life. That puts me in a horrible place. The person who loses the most, no matter what I decide, is [L.H.] ... I will agonize over this for the next few weeks, while I wait on the findings from everybody. But, you know, I mean, I think that there's some that think that judges don't care about what happens in their cases. I promise you I'm not one of those ....

(Tr. Vol. 3 at 68-69).

[12] In October 2017, the trial court issued a detailed thirty-seven-page dissolution order that awarded Father physical custody of L.H., thereby denying Mother's request to relocate the child to Maryland. Mother now appeals.

Decision

[13] Mother argues that the trial court abused its discretion when it awarded primary physical custody of L.H. to Father. We disagree.

[14] At the outset, we note that Father requested the trial court to enter findings of fact and conclusions thereon pursuant to Trial Rule 52(A). We therefore apply the following two-tiered standard of review: we first determine whether the evidence supports the findings of fact and then determine whether the findings of fact support the judgment. Troyer v. Troyer , 987 N.E.2d 1130, 1134 (Ind. Ct. App. 2013), trans. denied . We will set aside findings if they are clearly erroneous, which occurs only when the record contains no facts to support them either directly or by inference. Campbell v. Campbell , 993 N.E.2d 205, 209 (Ind. Ct. App. 2013), trans. denied .

[15] We further note that there is a well-established preference in Indiana " 'for granting latitude and deference to our trial judges in family law matters.' " Steele-Giri v. Steele , 51 N.E.3d 119, 124 (Ind. 2016) (quoting In re Marriage of Richardson , 622 N.E.2d 178, 178 (Ind. 1993) ). In this regard, the Indiana Supreme Court has explained as follows:

Appellate deference to the determinations of our trial court judges, especially in domestic relations matters, is warranted because of their unique, direct interactions with the parties face-to-face, often over an extended period of time. Thus enabled to assess credibility and character through both factual testimony and intuitive discernment, our trial judges are in a superior position to ascertain information and apply common sense, particularly in the determination of the best interests of the involved children.

Best v. Best , 941 N.E.2d 499, 502 (Ind. 2011). It is not enough on appeal that the evidence might support some other conclusion; rather, the evidence must positively require the result sought by the appellant. D.C. v. J.A.C. , 977 N.E.2d 951, 957 (Ind. 2012). Accordingly, we will not substitute our own judgment if any evidence or legitimate inferences support the trial court's judgment. Id.

[16] In an initial custody determination, both parents are presumed equally entitled to custody, and "[t]he court shall determine custody and enter a custody order in accordance with the best interests of the child." I.C. § 31-17-2-8. There is no presumption favoring either parent. I.C. § 31-17-2-8. See also Kondamuri v. Kondamuri , 852 N.E.2d 939, 945 (Ind. Ct. App. 2006). In determining the child's best interests, the trial court must consider all relevant factors, including specifically the following:

(1) The age and sex of the child.
(2) The wishes of the child's parent or parents.
(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child's parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(5) The child's adjustment to the child's:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian ....

I.C. § 31-17-2-8. The trial court's decisions on child custody are reviewed only for an abuse of discretion. Sabo v. Sabo , 858 N.E.2d 1064, 1068 (Ind. Ct. App. 2006).

[17] Further, INDIANA CODE § 31-17-2.2-2(a) provides that "if a party provides notice of relocation at an initial hearing to determine custody, the court may consider the factors set forth in this chapter in the court's initial custody determination." Those relocation factors are as follows:

(1) The distance involved in the proposed change of residence.
(2) The hardship and expense involved for the nonrelocating individual to exercise parenting time or grandparent visitation.
(3) The feasibility of preserving the relationship between the nonrelocating individual and the child through suitable parenting time and grandparent visitation arrangements, including consideration of the financial circumstances of the parties.
(4) Whether there is an established pattern of conduct by the relocating individual, including actions by the relocating individual to either promote or thwart a nonrelocating individual's contact with the child.
(5) The reasons provided by the:
(A) relocating individual for seeking relocation; and
(B) nonrelocating parent for opposing the relocation of the child.
(6) Other factors affecting the best interest of the child.

I.C. § 31-17-2.2-1(b). In addition, INDIANA CODE § 31-17-2.2-5(c) provides that the relocating parent has the burden to prove that the proposed relocation is made in good faith and for a legitimate reason.

[18] Here, our review of the trial court's order and the evidence reveals that both parents have actively co-parented L.H. and are competent to handle L.H.'s medical issues. L.H.'s family support system has been established in Indiana, and L.H. is very close to her paternal grandparents. Further, although L.H. is close to both of her siblings, she will have more opportunities to maintain her bond with her brother, I.H., than she will with her sister, I.D. because I.D. currently attends college in New Jersey. In addition, it would be nearly impossible to foster the brother-sister bond between L.H. and I.H. if L.H. moved to Maryland. We further note that Mother did not attempt to find alternative employment in the Indianapolis area in order to preserve the existing family bonds and did not advise Father of her interest in returning to Maryland until she had filed her notice of intent to relocate. She did not involve Father in the school application process or inform him that she was applying for L.H.'s enrollment at Langley. In fact, Father had never heard of Langley until the final hearing. Mother has clearly not extended the same courtesies to Father that she has previously extended to I.D.'s father. In addition, Mother attempted to minimize Father's parental contributions because he is not as detail-oriented as Mother is. However, we agree with the trial court that although each parent has a different parenting style, both styles have a place in the development of a child. We further note that distance is a major factor in the case. It is an eight to ten-hour drive from Indianapolis to Maryland, and with Father's work schedule, the distance would create a substantial hardship on Father exercising parenting time with L.H. Because Mother's new job offers a flexible schedule and increased earing capacity, it would be less of a hardship for Mother to visit L.H. in Indianapolis than for Father to visit her in Maryland. This evidence supports the trial court's award of primary physical custody of L.H. to Father. The trial court did not abuse its discretion.

[19] Affirmed.

Vaidik, C.J., and Barnes, J., concur.

      The parties entered into a final settlement agreement regarding the distribution of their personal property.

      To the extent that Mother argues that she should have been awarded physical custody of LH. because L.H. is a young girl, we note that Father correctly points out that the "Maternal Preference Rule (sometimes known as the Tender Years Doctrine) has been prohibited for decades." (Father's Br. at 21). The purpose of this "statute prohibiting such presumptions is to overcome ... the maternal preference rule followed in many cases where the mother has been given preference particularly as to custody of children of tender years or female children." D.H. v. J.H., 418 N.E.2d 286, 290 (Ind. Ct. App. 1981).


author: May, Judge.

text:
    John W. ANTHONY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 49A02-1712-CR-2859
    Court of Appeals of Indiana.
    Filed May 31, 2018
    Attorneys for Appellant: Ruth Ann Johnson, Victoria L. Bailey, Marion County Public Defender Agency, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Tyler G. Banks, Deputy Attorney General, Indianapolis, Indiana
   May, Judge.

[1] John W. Anthony appeals the trial court's determination he violated Indiana Code section 9-19-19-3, which prohibits driving "with a sign, poster, sunscreening material, or other nontransparent material upon the front windshield, side wings, or side or rear windows of the vehicle that obstructs the driver's clear view of the highway or an intersecting highway." As the State did not present any evidence to prove Anthony violated that statute, we reverse.

Facts and Procedural History

[2] On July 25, 2017, Indianapolis Metropolitan Police Department Officer Kenneth Greer observed a car being driven by Anthony. The car "had plastic bags of trash, canned foods, clothes, piled from the bottom of [its] floor to the ceiling ... on the dashboard and along the side windows and rear windows." (Tr. Vol. II at 6.) After looking around the car and being able to see in only the driver's window, Officer Greer issued a citation to Anthony for violation of Indiana Code section 9-19-19-3.

[3] On November 13, 2017, at a bench trial, Anthony represented himself and denied violating the statute. Throughout his testimony Anthony repeatedly noted the statute prohibits "nontransparent material upon the" windows, Ind. Code § 9-19-19-3 (emphasis added), and argued he "didn't have nothing on the windshield. [He] didn't have nothing on the side windows. [He] did have items in the automobile." (Tr. at 13) (errors in original).

[4] The State, during its cross-examination of Anthony, told Anthony he was not understanding the statute correctly. The following exchange occurred:

[State:] A person may not drive a motor vehicle with a sign, poster or non-transparent material, that's debris, on the front windshield, side windows, rear window of the vehicle, obstructs the driver's clear view of the highway or intersection highway. You read this?
[Anthony:] It says nothing on the windshield. I don't have nothing on the windows.
[State:] I don't believe you understand what I'm saying, sir.
[Anthony:] I understand what you're saying. I understand what I'm reading too.
[State:] So you do understand that non-transparent materials is not a decal? That's not a sticker. It's any nontransparent material, do you understand?
[Anthony:] Yeah, it's not on the windows. It's in the vehicle.
[State:] That's correct and as you can see here, it actually says that you cannot have those things inside your vehicle to obstruct your view of the highway.

(Id. at 17.) The trial court found Anthony had committed the violation and assessed a fine. Anthony paid the fine and filed this appeal.

Discussion and Decision

Statutory Interpretation

[5] Anthony was cited for violating Indiana Code section 9-19-19-3, which provides:

(b) A person may not drive a motor vehicle with a sign, poster, sunscreening material, or other nontransparent material upon the front windshield, side wings, or side or rear windows of the vehicle that obstructs the driver's clear view of the highway or an intersecting highway. However, signs, posters, or other nontransparent material not larger than four (4) inches square may be placed upon the front windshield, side wings, or side or rear windows in the lower corner farthest removed from the driver's position.

[6] Anthony asserts the "State presented no evidence of any nontransparent materials upon [his] windshield or windows[.]" (Appellant's Br. at 7) (formatting changed). Although Anthony concedes his car had items stacked to the ceiling, he argues the statute requires the items to be upon the windows and they were not. The State argues the legislature's intent was to prevent drivers having their view obstructed by items blocking the windows. Further, it argues the word "upon" should be construed broadly and not just mean "affixed" because the legislature uses that word in other statutes and would have used it here if it meant the nontransparent material only applied to items affixed to the windows. (Appellee's Br. at 7-8.) The crux of the parties' arguments, and thus our review, focuses on the meaning of the word "upon."

[7] When faced with a question of statutory interpretation, our review is de novo . In re M.W. , 913 N.E.2d 784, 786 (Ind. Ct. App. 2009). We first decide if the statute is ambiguous. Id. If not, we need not and do not interpret it, but instead apply its plain and clear meaning. Id. If the statute is susceptible to more than one reasonable interpretation, it is ambiguous, and we must determine the legislature's intent so that we can give effect to that intent. Maroney v. State , 849 N.E.2d 745, 748 (Ind. Ct. App. 2006). Statutes must be read in harmony with related statutes. St. Margaret Mercy Healthcare Ctrs., Inc. v. Poland, 828 N.E.2d 396, 402 (Ind. Ct. App. 2005), trans. denied. We assume the legislature intended statutory language to be applied in a logical manner consistent with the statute's underlying policy and goals. B.K.C. v. State , 781 N.E.2d 1157, 1167 (Ind. Ct. App. 2003).

[8] "Upon" was defined in Clark v. Clark , 971 N.E.2d 58 (Ind. 2012), a case that interpreted Indiana's Guest Statute. Our Indiana Supreme Court held:

The word "upon," both at the time it was originally added to the Guest Statute, see Act of Mar. 11, 1937, ch. 259, § 1, 1937 Ind. Acts 1229, and when the statute was most recently amended, see Pub.L. 68-1984, 1984 Ind. Acts 925, should be given its literal meaning: "[u]p and on" or simply "on." The New Century Dictionary 2112 (1929); American Heritage Dictionary 1328 (2d college ed. 1985). Being "in or upon the motor vehicle" thus connotes a physical connection to or contact with the vehicle, such as being "in" a car or "upon" a motorcycle or truck bed. ... Thus, if the injury is sustained at a time when a passenger is in mere physical contact with the motor vehicle but standing outside of or off of it or at a time when the passenger is not being "transported" by the vehicle, then the Indiana Guest Statute does not bar a passenger's damage action against the driver.

Id. at 62 (footnotes omitted).

[9] The plain meaning of the word "upon" has not changed. Simply, it means "on." https://www.merriam-webster.com/dictionary/upon (last visited May 2, 2018). The definition of the word "on" is "a function word to indicate position in contact with and support by the top surface of[.]" https://www.merriam-webster.com/dictionary/on (last visited May 2, 2018). The word "on" (and thus, the word "upon") does not merely mean "near" but rather "fixed" to or in some way resting atop or dependent on. The word "upon" in this statute is not ambiguous. It clearly means the listed items are not allowed to be affixed to the windows.

[10] The State argues the statute should be construed broadly to include the circumstances at issue herein. However, the legislature has already seen fit to prohibit the operation of a vehicle when the driver's view of the roadway is obstructed by materials loaded in the vehicle. Indiana Code section 9-21-8-43 provides: "A person may not drive a vehicle when [it] is loaded in a manner ... so as to obstruct the view of the person who drives the vehicle to the front or sides of the vehicle." Because the legislature has already provided a means to punish citizens who drive vehicles loaded in a manner that obstructs the driver's view, we need not interpret Indiana Code section 9-19-19-3 so broadly that "on" means more than its plain and ordinary meaning. See House of Prayer Ministries, Inc. v. Rush Cty. Bd. of Zoning Appeals , 91 N.E.3d 1053, 1063-64 (Ind. Ct. App. 2018) (if the language of the statute is plain, the "judiciary has no discretion to substitute different language for that of the statute[;]" however, even if the language is ambiguous, the judiciary "would be obliged to avoid interpreting it" in a way that would lead to an absurd result).

Sufficiency of the Evidence

[11] "[T]raffic infractions are civil, rather than criminal, in nature and the State must prove the commission of the infraction by only a preponderance of the evidence." Rosenbaum v. State , 930 N.E.2d 72, 74 (Ind. Ct. App. 2010), trans. denied. When reviewing a challenge to the sufficiency of the evidence, we will consider only probative evidence in the light most favorable to the trial court's judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995), reh'g denied. The decision comes before us with a presumption of legitimacy, and we will not substitute our judgment for that of the fact-finder. Id. We do not assess the credibility of the witnesses or reweigh the evidence in determining whether the evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). If there is substantial evidence of probative value supporting the trial court's judgment, it will not be overturned. Rosenbaum , 930 N.E.2d at 74.

[12] While there seems to be little doubt Anthony's vehicle was full of items that obstructed his view, those items were not affixed to the windows or dependent on the windows for their support. Rather, the items in Anthony's car were resting on the floors, the seats, and the dashboard. By all accounts, his operation of the vehicle raised safety concerns because his view was obstructed. However, Indiana Code section 9-19-19-3 does not prohibit an "obstructed view," generally. It prohibits placement of "material upon ... windows ... that obstructs the driver's clear view." Ind. Code § 9-19-19-3. The State did not present such evidence. Accordingly, we reverse. See Atteberry v. State , 911 N.E.2d 601, 611 (Ind. Ct. App. 2009) ("State's failure to properly charge ... is no mere technicality ... the State must prove the elements of the crime it charged, not the elements of some other crime the defendant may have committed.").

[13] Reversed.

Riley, J., and Mathias, J., concur.

      Anthony submitted a picture of his vehicle as Defendant's Exhibit A. An affidavit from the court reporter indicates the Exhibit was admitted but could not be located when the Exhibit volume was being prepared for appeal.

      Indiana's Guest Statute provides one is not responsible for damages "arising from injuries to or death of [certain family members or hitchhikers] resulting from the operation of a motor vehicle while [those persons were] being transported ... in or upon the motor vehicle[.]" Ind. Code § 34-30-11-1.