author: Shepard, Senior Judge.

text:
    Bobby J. JOHNSON, Jr., Appellant-Plaintiff, v. HIX WRECKER SERVICE, INC., Appellee-Defendant.
    Court of Appeals Case No. 18A-PL-10
    Court of Appeals of Indiana.
    Filed October 3, 2018 December 10, 2018
    Attorney for Appellant: Ronald E. Weldy, Weldy Law, Indianapolis, Indiana
    Attorney for Appellee: Tony H. Abbott, Foley & Abbott, P.A., Indianapolis, Indiana
   Shepard, Senior Judge.

[1] Appellant Bobby J. Johnson, Jr.'s employer Hix Wrecker Service wrongly withheld portions of his wages, and the trial court awarded $700 in actual damages and another $3800 in liquidated damages, pre-judgment interest, and costs.

[2] The court also awarded some $35,000 in attorney fees. Johnson's counsel Ronald E. Weldy argues that this amount was an abuse of discretion that will be "jeopardizing the ability of all wage claimants to obtain counsel." Appellant's Br. p. 11.

Facts and Procedural History

[3] This case began in August 2009 when Johnson filed a complaint against Hix for unpaid wages and improper deductions. Seven years later in December 2016, the trial court granted Johnson's motion for partial summary judgment, awarding Johnson $700.92 in actual damages, $1,601.84 in liquidated damages, and $1,843.25 in statutory pre-judgment interest. On March 31, 2017, the court granted Johnson's motion for statutory attorney fees of $26,173 and $377.48 in costs. On May 30, 2017, the December 2016 partial summary judgment was entered as a final judgment.

[4] Johnson filed for proceedings supplemental and requested that Hix be ordered to answer interrogatories, respond to requests for production, and attend a hearing to answer as to assets. Hix repeatedly failed to respond to the discovery requests, and Hix and its counsel failed to attend hearings as ordered by the court. Johnson then moved for sanctions or contempt against counsel for Hix requesting $5,100 for these failures. The trial court granted this motion on July 19, 2017 but subsequently granted Hix's motion for reconsideration on July 31, 2017 and vacated the July 19 order, holding Johnson's request in abeyance.

[5] In the meantime, on July 6th, the court granted Johnson's request for supplemental fees in the amount of $8,108 for work Johnson's counsel performed post-judgment. On September 2nd, Johnson filed his second motion for supplemental fees and costs asking for $6,862.51. A few weeks later, counsel supplemented that request, asking for an additional $7,275 in fees.

[6] Following an October 2017 hearing, the court ordered Hix to pay Johnson a total post-judgment attorney fee of $9,201 plus interest until paid, an amount the court specifically said includes $8,108 in fees it had awarded on July 6th. Johnson now appeals.

Issues

[7] Johnson presents five issues, which we restate as six:

I. Whether the trial court erred by vacating its prior order;
II. Whether the court erred by modifying its prior order;
III. Whether the court erred in its calculation of post-judgment interest;
IV. Whether the court erred by not awarding costs to Johnson;
V. Whether the court erred in calculating attorney fees; and
VI. Whether the trial court's action of reducing counsel's rate was against public policy.

Discussion and Decision

I. Vacation of Order

[8] On July 16, Johnson filed his motion for sanctions, which the court promptly granted on July 19. On July 28, Hix moved for reconsideration, which the court granted, vacating its order of July 19. On appeal, Johnson contends the court erred in vacating its July 19 order and requests its reinstatement.

[9] Decisions regarding the imposition of sanctions for discovery violations are within the trial court's sound discretion. Reed v. Cassady , 27 N.E.3d 1104 (Ind. Ct. App. 2015), trans. denied . "Trial judges stand much closer than an appellate court to the currents of litigation pending before them, and they have a correspondingly better sense of which sanctions will adequately protect the litigants in any given case, without going overboard, while still discouraging gamesmanship in future litigation." Id. at 1111. Accordingly, we presume the trial court will act in accord with what is fair and equitable in each case, and we reverse only if the court's decision is clearly against the logic and effect of the facts and circumstances before it, or if it has misinterpreted the law. Wright v. Miller , 989 N.E.2d 324 (Ind. 2013).

[10] Trial Rule 37(B)(2) provides that as to sanctions for failure to obey a discovery order, trial courts "may make such orders in regard to the failure as are just ." (Emphasis added). The rule requires trial courts to order an offending party to pay the reasonable expenses and fees caused by its failure unless the court finds the failure was "substantially justified or that other circumstances make an award of expenses unjust." Both parties here filed lengthy motions setting forth their arguments and explanations on this issue. Given the trial court's firsthand observation of this case, its familiarity with the litigants and their lawyers, as well as our presumption that the court acted fairly and equitably, we cannot say the court's decision is against the logic and effect of the circumstances presented.

II. Modification of Order

[11] On July 6, 2017, the trial court granted Johnson's motion for supplemental post-judgment attorney fees in the amount of $8,108. In its final order awarding post-judgment attorney fees and interest, the trial court ordered Hix to pay post-judgment attorney fees in the amount of $9,201, specifically stating this amount includes fees awarded in the July 6 order. On appeal, Johnson argues the court improperly modified its July 6 order.

[12] In support of his contention, Johnson asserts the trial court indicated the July 6 order was not at issue at the October 2017 hearing. The discussion went:

MR. WELDY [Counsel for Johnson]: Here's a question: You already previously entered an order back on July the 6th of this year for supplemental attorney fees. They filed a Motion to Reconsider and you denied that. Is that money at issue today or not at issue today?
THE COURT: I thought it was at issue today.
MR. WELDY: Okay. I mean, considering you [sic] already filed a Motion to Reconsider that you already denied I didn't think it would be an issue today, to be honest, but I want to make sure.
THE COURT: Well, I suppose the issue is the amount.
MR. WELDY: Once, again, you've already entered that amount. The second -- there is another motion on file for additional fees that have been incurred since that one ended; okay? So I just want to make sure - I don't want to waste time arguing about something that you've already ruled on. You've already rejected Motions to Reconsider unless you tell me everything is at issue today. I'm just trying not to waste your time.
THE COURT: The prior orders of the Court stand so whatever the Court has issued prior and ruled on prior to today stands. There are just a couple minor issues that remain.

Tr. Vol. 2, p. 5 (emphasis added). And:

THE COURT: What do you think the issues are?
MR. ABBOTT [Counsel for Hix]: I think the issue is the amount and reasonableness of post-judgment attorney fees, and the amount of post-judgment interest. I think that's it.
THE COURT: Yeah, I thought that was pretty much what we're discussing.

Id. at 6 (emphasis added).

[13] Counsel points to the court's statement that any prior orders would stand; however, the court was very clear that the subject of the hearing was the amount of post-judgment attorney fees. Moreover, the July 6 order was a provisional order, not a final judgment, the terms of which the trial court was free to revisit. See Branham Corp. v. Newland Res., LLC , 44 N.E.3d 1263 (Ind. Ct. App. 2015) (stating that trial court has inherent power to reconsider any of its previous rulings so long as action remains in fieri ). We find no error.

III. Calculation of Post-Judgment Interest

[14] Johnson claims the court incorrectly used May 30, 2017 as the date on which post-judgment interest began to accrue. The trial court entered findings and conclusions on Johnson's motion for partial summary judgment on December 29, 2016. At no time prior to May 30, 2017 did Johnson's counsel request for this determination to be made a final judgment pursuant to Trial Rule 54(B). On May 30, 2017, the court entered a final judgment for $2,302.76 and pre-judgment interest of $1,843.25. The trial court then calculated post-judgment interest from May 30, 2017 to September 19, 2017, the date Hix deposited the judgment amount with the clerk of the court.

[15] The trial court's determination of damages did not become final until it entered its final judgment on May 30, 2017, which is the date the court used to begin calculating post-judgment interest. Unless otherwise provided by statute, interest on judgments for money runs from the date of final judgment. Reese v. Reese , 696 N.E.2d 460, 463 n.4 (Ind. Ct. App. 1998) (husband was not entitled to interest from date dissolution decree was entered because decree in this instance was merely provisional order, not final judgment, due to court's deferred consideration of fees and expenses) (citing Irvine v. Irvine , 685 N.E.2d 67, 71 (Ind. Ct. App. 1997) ; Ind. Code § 24-4.6-1-101 (1993) ). We find no error.

IV. Costs

[16] Johnson contends the trial court erred by failing to award him $52.01 in costs. At the October hearing on fees and costs, Johnson never mentioned these costs. In addition, while Johnson filed a proposed order with the court regarding the October hearing, we cannot determine whether these costs were discussed because Johnson failed to include the proposed order in the documents on appeal.

[17] Issues not raised at the trial court are waived on appeal. Richardson v. Thieme , 76 N.E.3d 892 (Ind. Ct. App. 2017), trans. denied . To properly preserve an issue for appeal, a party must, at a minimum, show that it gave the trial court a bona fide opportunity to pass upon the merits of the claim before seeking an opinion on appeal. Cavens v. Zaberdac , 849 N.E.2d 526 (Ind. 2006). Under the circumstances here, we cannot say the trial court was provided with a bona fide opportunity to consider this claim. The claim is waived.

V. Method of Calculation

[18] Next, Johnson argues the trial court erred by failing to use the lodestar method to calculate post-judgment attorney fees. We are not aware of a requirement in Indiana that trial courts use the lodestar method to calculate attorney fees. Rather, a determination of the amount of attorney fees is within the broad discretion of the trial court and will be reversed only if the award is clearly against the logic and effect of the facts and circumstances before the court. Holland v. Steele , 961 N.E.2d 516 (Ind. Ct. App. 2012), trans. denied .

[19] Johnson's counsel was awarded statutory fees in the amount of $26,173. At the October hearing on post-judgment fees, the trial court informed the parties it wanted to hear evidence on the fees and did not "want to blindly accept what a lawyer submits with respect to numbers on a page." Tr. Vol. 2, p. 8. The court heard evidence of the customary hourly rate for attorneys in the area as well as argument from counsel and awarded Johnson's counsel post-judgment attorney fees of $9,201. We find no error.

VI. Public Policy

[20] Finally, Johnson claims it was against public policy for the court to reduce his hourly rate when awarding him post-judgment fees.

[21] Under the version of Indiana's Wage Payment Act in effect when Johnson's claim arose, Indiana Code section 22-2-5-2 (1993) provided that "the court shall tax and assess as costs in said case a reasonable fee for the plaintiff's attorney or attorneys." (Emphasis added). Here, Johnson's counsel was awarded a total of $35,374 in fees for his work obtaining for Johnson a modest multiple of the $700 in improper deductions and unpaid wages. In its order, the trial court found:

12. This Court finds that the issues presented by this proceedings supplemental are not particularly novel or difficult, and that the issues should not have required an investment of 60 hours of time.
* * * * *
14. This Court finds that [Johnson] filed repeated and excessive motions for proceedings supplemental, supplemental attorney fees, sanctions and contempt, and sought an emergency hearing on September 28, 2017, after [Hix] had deposited the Judgment Amount with the underlying Judgment was composed [sic] primarily of his attorney fees.
15. [Hix] produced evidence that the customary hourly rate for attorneys who concentrate in collection proceedings in Marion County ranges from $200 to $275 per hour, and that some collection attorneys are compensated based on a percentage of the amount collected.
16. This Court finds that a reasonable fee for [Johnson's] counsel's post-judgment Legal services is a total of $9,201.00, which represents thirty percent (30%) of the underlying Judgment Amount and, on an hourly basis, equates to 46 hours of time at $200 per hour. This amount includes fees previously awarded.

Appellant's App. Vol. 2, p. 20. Like the trial court, we find these fees to be reasonable.

Conclusion

[22] The trial court did not abuse its discretion by vacating its prior provisional order or by calculating and awarding post-judgment attorney fees.

[23] Affirmed.

Bradford, J., and Brown, J., concur.


source: Caselaw Access Project

author: Riley, Judge.

license: Public Domain

text:
    Umesh KAUSHAL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 49A04-1612-CR-2862
    Court of Appeals of Indiana.
    Filed October 5, 2018 Rehearing denied December 6, 2018
    Attorney for Appellant: H. Samuel Ansell, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Christina D. Pace, Larry D. Allen, Monika P. Talbot, Deputy Attorneys General, Indianapolis, Indiana
    OPINION ON REMAND
   Riley, Judge.

[1] This case is before us on remand from the United States Supreme Court. In Kaushal v. State , No. 49A04-1612-CR-2862, 2017 WL 3028623 (Ind. Ct. App. July 18, 2017), this court affirmed the trial court's denial of Kaushal's motion to withdraw his guilty plea which was based in part upon a claim that his guilty plea counsel had been ineffective. The Indiana Supreme Court denied his petition for transfer, and Kaushal subsequently filed a petition for writ of certiorari with the United States Supreme Court. On June 28, 2018, the Supreme Court granted the certiorari petition and remanded this case "for further consideration in light of Jae Lee v. United States , 582 U.S. ----[, 137 S.Ct. 1958], 198 L.Ed.2d 476 (2017)." Kaushal v. Indiana , --- U.S. ----, 138 S.Ct. 2567, --- L.Ed.2d ---- (2018). Accordingly, we reconsider Kaushal's appeal.

[2] The facts of the case as set out by this court in its original opinion are as follows:

Kaushal, a citizen of India, has lived in the United States for nearly a decade and has a Green Card. On August 11, 2015, the State filed an Information, charging Kaushal with child molesting as a Level 4 felony. The State alleged that Kaushal had fondled his thirteen-year-old stepdaughter's breast. Shortly after his arrest, Kaushal posted bond and retained an attorney. Kaushal, who owns and operates several convenience stores in Indianapolis, Marion County, Indiana, made it clear to his attorney that his priority was to avoid any amount of incarceration so that he could continue to run his businesses and care for his mother. Given Kaushal's insistence against imprisonment, along with his professional opinion that Kaushal was not likely to succeed at trial, Kaushal's attorney focused on negotiating a deal with the State.
On May 4, 2016, Kaushal entered into a plea agreement with the State, pursuant to which he agreed to plead guilty to the child molesting offense. The agreement provided that Kaushal would receive a four-year sentence, with a one-year cap on executed time and with placement for the executed time to be determined by the trial court. However, after conferring with his attorney and realizing that he could be confined for a portion of his sentence, Kaushal withdrew from the plea agreement.
On June 29, 2016, Kaushal entered into another plea agreement with the State, pursuant to which he again agreed to plead guilty to the offense of child molesting as a Level 4 felony. In exchange, Kaushal would receive a four-year suspended sentence, of which three years would be served on probation with a condition of home detention and one year on non-reporting probation. On June 30, 2016, the trial court conducted a hearing on Kaushal's guilty plea. The trial court advised Kaushal of the implications of pleading guilty, including his obligation to comply with the Sex and Violent Offender Registry; his waiver of his right to appeal his conviction and/or sentence; and his waiver of certain constitutional rights, such as the right to a trial by jury and the right to confront and cross-examine witnesses. These warnings were also included in the written plea agreement, and Kaushal initialed next to each one to affirm his understanding. Also, among the written warnings was an advisement that, as a non-citizen, Kaushal could face deportation, denial of re-entry, prohibition of citizenship, or loss of immigration benefits as a result of the conviction. After questioning Kaushal, the trial court found that his guilty plea was made knowingly and voluntarily, and Kaushal agreed that there was a factual basis to support his conviction and that he was guilty of committing the charged offense. Accordingly, the trial court accepted the plea agreement and entered a judgment of conviction for child molesting as a Level 4 felony.
According to Kaushal, on July 1, 2016, he met with an attorney who focuses on immigration matters and learned that, as a result of his conviction for child molesting, he was likely to be immediately "picked up" by immigration officials. Thus, on July 21, 2016, Kaushal filed a Verified Motion to Withdraw Plea of Guilty. Kaushal argued that "[o]utside of a vague advisement that the conviction may have immigration consequences, [he] was not advised of potential immigration consequences and would not have pled guilty to the charged crime had he known it would subject him to automatic detention, revocation of his permanent resident status, and certain deportation." Kaushal further stated that he pled guilty "in order to avoid prison without having knowledge that his ability to legally reside in the United States would end. Kaushal owns several businesses and considers the United States to be his home. Although he has [pled] guilty, Kaushal maintains his innocence and wishes to proceed to trial." Kaushal added that withdrawing the plea would not prejudice the State because the case could still proceed to trial, and he insisted that withdrawal was necessary to correct a manifest injustice.
On August 5, 2016, and September 9, 2016, the trial court held hearings on Kaushal's motion to withdraw his guilty plea. Kaushal testified that his attorney never discussed the immigration consequences in urging Kaushal to plead guilty. Yet, in response to another question about conversations with his attorney regarding his Green Card, Kaushal also stated, "I think I'm not going to be ever U.S. citizen, or I'm never going to be deported after, like-in that quick until I-I just find immigration stuff." Kaushal clarified that, while he understood there would be "a hard road after" pleading guilty, he did not realize "that it's going to be that hard-[that he would get] deported that quick." On the other hand, Kaushal's attorney testified that he went through each paragraph of the plea agreement with Kaushal, including the paragraph regarding possible immigration consequences, and Kaushal did not have any questions as to what he was signing. Moreover, Kaushal's attorney testified that Kaushal had informed him that he was contemporaneously conferring with immigration attorneys. Although Kaushal's attorney stated that he does not practice immigration law, he specifically told Kaushal that his Green Card would not be renewed prior to Kaushal signing the plea agreement.
On November 7, 2016, the trial court issued an Order Denying Verified Motion to Withdraw Guilty Plea. The trial court determined that even though the State had conceded that Kaushal's attorney ineffectively advised Kaushal on the immigration consequences of pleading guilty, Kaushal failed to establish that he was prejudiced by his attorney's advice. On December 2, 2016, Kaushal filed a motion to correct error, which the trial court denied on December 15, 2016.

Kaushal , 2018 WL 3028623, at *1-2 (record citations and internal footnote omitted). Additional facts will be provided as necessary.

[3] The issue relevant to our review on remand is whether, in light of Jae Lee , Kaushal adequately established that he was prejudiced by his counsel's deficient performance such that his guilty plea must be set aside.

[4] We affirm.

DISCUSSION AND DECISION

[5] In our original opinion, we did not address the issue of whether Kaushal's counsel's performance was deficient because we concluded that, regardless, Kaushal had not demonstrated that he had been prejudiced by his counsel's performance. Id. at *6. We began our analysis by setting out the general Strickland standard for assessing prejudice, namely that a defendant must establish that, but for his counsel's error, the result of the proceeding would have been different. Id. at *4. Relying upon Segura v. State , 749 N.E.2d 496, 500 (Ind. 2001), and Gulzar v. State , 971 N.E.2d 1258, 1261 (Ind. Ct. App. 2012), trans. denied , for the standard for assessing prejudice more specifically in the context of counsel's failure to warn a defendant of penal consequences, including immigration consequences, prior to entering a guilty plea, we noted that " 'specific facts, in addition to the [defendant's] conclusory allegation, must establish an objective reasonable probability that competent representation would have caused the [defendant] not to enter a plea.' " Id. at *5 (quoting Gulzar ).

[6] We considered Kaushal's ties to the United States and the scant factual basis in the record for his guilty plea, which we noted militated in favor of finding prejudice. Id. at *6. However, we held that the substantial benefit Kaushal received from his plea, evidence of his knowledge before entering his plea that his Green Card would not be renewed, his review of his plea agreement with counsel and the trial court prior to entering his plea, and his concession at an evidentiary hearing on his motion that he knew that he would "face hurdles" with his immigration status after entering his plea all established that Kaushal knew that his immigration status could be affected by his plea but that "he was apparently willing to accept those risks in order to avoid spending any amount of time incarcerated." Id. We concluded that Kaushal had not demonstrated adequate prejudice because he had been advised of the possibility that he could be deported if he pled guilty but chose to plead guilty anyway. Id.

[7] After briefing was completed in this matter but before our decision was handed down, the United States Supreme Court decided Jae Lee , in which it clarified the standards for assessing prejudice in cases where a defendant relied upon his counsel's deficient performance in deciding to forgo trial and to instead enter a guilty plea. Kaushal sought rehearing, arguing that Jae Lee afforded him relief. (Appellant's Petition for Rehearing pp. 6-9). After considering Jae Lee , we denied Kaushal's petition for rehearing. Kaushal's subsequent petition for transfer to our supreme court also cited Jae Lee . (Petition to Transfer pp. 5-7). Our supreme court also denied relief.

[8] Lee, a longtime lawful permanent resident of the United States, was charged with one count of possessing ecstasy with intent to distribute, an offense that, if he were convicted, would subject him to mandatory deportation. Lee , 137 S.Ct. at 1962-63. Lee had admitted that the drugs found in his home were his and that he had given ecstasy to his friends. Id. at 1963. His counsel advised him that his chances of success at trial were slim but that he would not be deported if he pled guilty and served his sentence. Id. After pleading guilty and being sentenced, Lee learned that he was subject to mandatory deportation following his conviction. Id. Lee sought relief from his conviction and sentence based upon a claim that his guilty plea counsel was ineffective. Id.

[9] In its decision granting that relief, the Supreme Court clarified that a defendant alleging that his counsel's deficient performance led him to enter a guilty plea in lieu of going to trial must establish "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 1965 (quoting Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ). Courts reviewing such claims do not focus on the defendant's chances of success at some hypothetical trial. Id. at 1967. Rather, it must be determined whether the defendant made an adequate showing that, if properly advised, he would have elected to go to trial. Id. The focus is on the defendant's decisionmaking, which may not be based solely upon the likelihood of conviction. Id. at 1966. In order to establish prejudice, a defendant may not rely merely on post hoc claims that he would not have pled guilty had he been better advised. Id. at 1967. Rather, he must substantiate his claim that he would not have pled guilty with contemporaneous evidence. Id.

[10] Under what it characterized as "the unusual circumstances" of Lee's case, the Court held that Lee had established adequate prejudice because the record reflected a reasonable probability that, but for his counsel's errors, Lee would have insisted on going to trial. Id. at 1967-68. Prior to accepting his plea, Lee asked his counsel repeatedly whether he would be deported following his guilty plea. Id. at 1967. At his guilty plea hearing, Lee was confused and sought the advice of his counsel when the trial court warned him as part of his plea colloquy that he could be deported as a result of his conviction. Id. at 1968. In addition, at an evidentiary hearing, both Lee and his attorney testified that avoiding deportation was the determinative factor for Lee in deciding to plead guilty and that Lee would have gone to trial had he known about the deportation consequences of his decision to plead guilty. Id. at 1967-68. The Court also noted that Lee had strong connections to the United States, having resided here for over thirty years, having established two businesses, and having been the sole family caretaker for his elderly parents. Id. at 1968. The Court reasoned that for defendants like Lee, whose primary goal is to avoid deportation, it may be worth the risk of going to trial despite a low chance of success rather than plead guilty and face certain deportation. Id. at 1968-69. The Court noted that "[n]ot everyone in Lee's position would make the choice to reject the plea. But we cannot say it would be irrational to do so." Id. at 1969.

[11] In addressing the case at hand, we begin by noting that Kaushal has lived in the United States for approximately ten years, owns several businesses, cares for his mother, and now insists that he would not have pled guilty had he known he would be deported. However, we cannot conclude that these circumstances alone establish a reasonable probability that, but for his counsel's performance, he would have insisted on going to trial. See id. at 1965. The contemporaneous evidence in the record reflects that avoiding imprisonment, not deportation, was the determinative issue for Kaushal in resolving his criminal case and ultimately deciding to enter a guilty plea. Some of the evidence which illustrates this is that at one of the evidentiary hearings in this matter, Kaushal's counsel testified that "Mr. Kaushal's first goal, in my opinion, always was that he didn't want to go to prison" and "The whole thing was him not going to jail was - was what he wanted the whole time in my office. He didn't want to spend one day in jail ... was his major ... number one." (Transcript Vol. 2, pp. 53, 96). Kaushal testified at a hearing in this matter that he pled guilty because he was afraid of going to prison and that "It's all about I'm scared to go to prison." (Tr. Vol. 2, pp. 28, 35).

[12] Apart from this testimony, Kaushal's actions before seeking to set aside his plea affirm that avoiding prison was his primary objective in resolving his criminal case. Kaushal withdrew from his first plea agreement because he would have been required to execute a portion of his sentence in prison. Kaushal signed his second plea agreement which provided for an entirely-suspended sentence after being advised by his guilty plea counsel that his Green Card would not be renewed and after he had reviewed the paragraph in his plea agreement pertaining to possible immigration consequences. Unlike Jae Lee, Kaushal exhibited no confusion about the terms of his plea agreement during his plea colloquy. Rather, he confirmed to the trial court that he had read the plea agreement and understood it.

[13] Kaushal was aware prior to entering his guilty plea that he faced a "hard road" regarding his immigration status if he pled, (Tr. Vol. 2, p. 29), but the record simply does not reflect that deportation was an overriding concern for him in deciding whether to plead guilty or to go to trial. Unlike Jae Lee, whose chances of achieving his ultimate goal of avoiding deportation were increased by going to trial, Kaushal had no increased chance of achieving his ultimate goal of avoiding prison by going to trial. Rather, the opposite is true because his plea agreement guaranteed that he would not be imprisoned.

[14] The contemporaneous evidence in the record does not establish a reasonable probability that, but for his counsel's errors, Kaushal would not have pled guilty and would have insisted on going to trial. Lee , 137 S.Ct. at 1965. We conclude that Kaushal did not establish, even in light of Jae Lee , that he was prejudiced by his counsel's performance. As such, the trial court did not err in declining to set aside his guilty plea.

[15] Affirmed.

[16] Najam, J. and Bradford, J. concur

      The contemporaneous evidence relied upon in Jae Lee was uncontroverted. Id. at 1968-69. Inasmuch as any of the evidence we rely upon in reaching our decision was disputed, we note that we do not disturb the trial court's ruling on a motion to set aside a guilty plea simply because it was based upon conflicting evidence. Weatherford v. State , 697 N.E.2d 32, 34 (Ind. 1998).


author: Altice, Judge.

text:
    ST. MARY'S OHIO VALLEY HEART CARE, LLC, et al., Appellants-Defendants, v. Derek F. SMITH, Appellee-Plaintiff
    Court of Appeals Case No. 82A05-1711-PL-2594
    Court of Appeals of Indiana.
    Filed October 9, 2018
    Attorneys for Appellants: Steven K. Hahn, Allyson R. Breeden, Molly E. Briles, ZIEMER STAYMAN WEITZEL & SHOULDERS, LLP, Evansville, Indiana, Karl L. Mulvaney, Margaret M. Christensen, BINGHAM GREENEBAUM DOLL LLP, Indianapolis, Indiana
    Attorneys for Appellee: Robert R. Faulkner, Evansville, Indiana, H. Wayne Turpin, Evansville, Indiana, Richard L. Schultheis, Indianapolis, Indiana
   Altice, Judge.

Case Summary

[1] In 2012, Elizabeth G. Butler, M.D. (Dr. Butler) removed a portion of Derek F. Smith's lower left lung during a surgery that began with a wedge resection and biopsy. Pathologist Hongyu Yang, M.D. (Dr. Yang) provided intraoperative analysis of frozen section pathology slides (frozen slides) of the specimen. Dr. Yang interpreted the frozen slides as cancerous or suggestive of cancer and communicated his findings to Dr. Butler, who then proceeded with a lobectomy. The permanent section slides (permanent slides), which could not be read until the following day, however, revealed that the biopsy specimen was benign.

[2] Smith filed a medical malpractice action against Dr. Butler, St. Mary's Ohio Valley Heart Care, LLC, St. Mary's Medical Center, and Ohio Valley Heart Care, Inc. (collectively, the Surgical Defendants), as well as Dr. Yang and Tri-State Pathology Associates (collectively, the Pathology Defendants). The Medical Review Panel (the Panel) unanimously found in favor of the Surgical Defendants and the Pathology Defendants. To rebut the Panel's findings, Smith submitted the affidavit of E. Allen Griggs, M.D., J.D. (Dr. Griggs), an expert in pathology, who opined that Dr. Yang violated the pathological standard of care in his diagnosis of the frozen slides in this case.

[3] The Surgical Defendants and the Pathology Defendants both filed motions for summary judgment, which were denied by the trial court. They now bring an interlocutory appeal, pursuant to Indiana Appellate Rule 14(B), of the denials of summary judgment.

[4] We reverse and remand.

Facts & Procedural History

[5] On February 14, 2012, Smith sought emergency medical treatment due to shortness of breath and wheezing. An x-ray of his chest was abnormal, and a subsequent CT scan revealed a 1.3 cm noncalcified lesion on his left lower lung. Smith's treating physician at the time noted that the lung mass did not "look terribly suspicious in a nonsmoker" and that Smith was to follow up with a pulmonologist for further evaluation. Appellants' Appendix Vol. 2 at 117.

[6] Pulmonologist Victor Chavez, M.D. (Dr. Chavez) evaluated Smith on March 9, 2012, and obtained a history from him, which included that Smith had "worked in a coal mine, strip mine for the last 30 years." Id. at 137. Dr. Chavez opined that the lung mass had a benign appearance but ordered a repeat chest CT in May to assess the lesion's stability. The chest CT, performed on May 21, 2012, revealed that the mass had increased in size from about 15 mm in length to 20 mm in length. As a result, Dr. Chavez referred Smith to Dr. Butler, a cardiothoracic surgeon, for a biopsy and possible lobectomy.

[7] On May 30, 2012, Smith had a preoperative appointment with Dr. Butler, who evaluated Smith, assessed his treatment history, and reviewed the CT scans and a more-recent PET scan. Dr. Butler noted that Smith, although a nonsmoker, lived with two smokers and that he had worked in the coal mines for the last thirty years. Dr. Butler obtained informed consent from Smith to perform a biopsy of the left pulmonary nodule and a possible lobectomy if cancer was present. The surgery was scheduled for the following day at St. Mary's Medical Center in Evansville.

[8] While in the operating room on May 31, 2012, Dr. Butler performed a wedge resection of the left lower lobe of Smith's lung, and the specimen was sent to the pathology lab for intraoperative consultation and analysis of frozen slides. Dr. Yang had difficulty interpreting the slides and consulted with his partner. Ultimately, Dr. Yang determined that the frozen slides were highly suspicious of cancer.

[9] Dr. Yang communicated his diagnosis via intercom into the surgery suite. According to Dr. Butler's operative notes, the frozen slides "came back bronchoalveolar carcinoma." Id. at 169. Dr. Yang, however, avers that he informed Dr. Butler at the time that the frozen slides were "very difficult to interpret and not straightforward" but that they were "suggestive of a well-differentiated adenocarcinoma with bronchioalveolar features." Id. at 193. Dr. Butler does not recall Dr. Yang qualifying his diagnosis, but she testified during her deposition that pathologists often relay diagnoses in terms of "suspicious or suggestive" of cancer. Id. at 198. Regardless of whether Dr. Yang used the definitive or the suggestive language, Dr. Butler testified that she would have proceeded with the lobectomy as she did. Dr. Butler explained:

In a patient who has spent 30 years in the coal mines, who presented with dyspnea, who was followed by a pulmonologist, who has a mass that has enlarged on CT scan, who lived with two smokers, I think that there is, given the entire clinical picture, a good chance that if a pathology frozen section demonstrates cancer, I would go ahead and do a lobectomy....[W]e are treating the entire clinical picture. That's often why a pathologist may say suggestive but they are not privy to all the studies and patient history that the surgeon has reviewed.

Id. at 199-200. Dr. Butler testified that she planned to perform the lobectomy unless "the diagnosis of the frozen section at the time was clearly not cancerous". Appellants' Appendix Vol. 3 at 16. The lobectomy resulted in a reduction of Smith's lung capacity by approximately twenty percent.

[10] The day after the lobectomy, Dr. Yang examined the permanent slides and continued to find the slides difficult to interpret. Accordingly, he sent the slides and tissue blocks to Thomas V. Colby, M.D. of the Mayo Clinic (Dr. Colby), a renowned expert in the field, for a second opinion. Dr. Colby determined that the permanent slides were all benign but noted the difficulty of making a diagnosis based on the frozen slides:

I think this case illustrates one of the classic traps at frozen section. Scarring and metaplasia may be an extremely difficult diagnosis at the time of frozen section.... I think the original wedge biopsy shows marked peribronchiolar metaplasia which is a well known mimic of what used to be called bronchioloalveolar carcinoma. This is a reflection of some bronchiolar scarring....

Appellants' Appendix Vol. 2 at 184. After receiving Dr. Colby's report, Dr. Yang completed his final surgical pathology report on June 8, 2012, with a final diagnosis indicating no evidence of malignancy identified. Dr. Yang communicated the discrepancies between the final diagnosis and the frozen section diagnosis with Dr. Butler that same day.

[11] Smith initiated this medical malpractice action in May 2014 against Dr. Butler, Dr. Yang, their respective practice groups, and the hospital where the lobectomy was performed. Pursuant to the Indiana Medical Malpractice Act, Smith also submitted his proposed complaint for consideration by the Panel. The Panel members included two cardiothoracic surgeons and one pathologist. On March 11, 2015, after reviewing the written submissions of the parties, the Panel entered its unanimous expert opinion in favor of each of the defendants, concluding that the evidence did not support the conclusion that any of the defendants failed to meet the applicable standard of care as charged in the complaint.

[12] On August 14, 2015, Smith filed his amended complaint seeking damages from the Surgical Defendants and the Pathology Defendants. Smith disclosed one expert witness, Dr. Griggs, to rebut the Panel's findings regarding the Pathology Defendants. Dr. Griggs provided an affidavit in January 2016 and was deposed in December 2016. In Dr. Griggs's expert opinion, Dr. Yang should have deferred his diagnosis of the "unusual tumor" until he could review the permanent section slides. Id. at 91. Dr. Griggs, however, testified that he would not have faulted Dr. Yang for offering a leaning along with the deferred diagnosis (i.e. that the slides were suggestive of cancer ). Dr. Griggs conceded that the frozen slides could not have been called normal/benign at the time and that they had characteristics that were in fact suggestive of cancer.

[13] The Pathology Defendants and the Surgical Defendants filed separate motions for summary judgment on May 30, 2017, and June 29, 2017, respectively. Following a summary judgment hearing, the transcript of which has not been provided on appeal, the trial court denied both summary judgment motions in September 2017. Thereafter, the Pathology Defendants and the Surgical Defendants sought certification of the summary judgment orders for interlocutory appeal pursuant to App. R. 14(B)(1), which the trial court granted. On December 15, 2017, this court accepted jurisdiction pursuant to App. R. 14(B)(2) and consolidated the two appeals under the current cause number. The trial court's denial of the motions for summary judgment is now properly before us. Additional information will be provided below as needed.

Discussion & Decision

[14] Our standard of review of a summary judgment decision is well-settled. Summary judgment shall be granted where "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." Trial Rule 56(C). "We construe all evidence in favor of and resolve all doubts as to the existence of a material issue in favor of the non-moving party." Stafford v. Szymanowski , 31 N.E.3d 959, 961 (Ind. 2015). In Indiana, generally the nonmovant is not required to come forward with contrary evidence until the party seeking summary judgment demonstrates the absence of a genuine issue of material fact. Id. "In medical malpractice cases, however, a unanimous opinion of the medical review panel that the physician did not breach the applicable standard of care is ordinarily sufficient to establish prima facie evidence negating the existence of a genuine issue of material fact entitling the physician to summary judgment." Id. Consequently, in such situations, the burden shifts to the plaintiff, who may rebut with expert medical testimony in order to survive summary judgment. Id. ; see also Bhatia v. Kollipara , 916 N.E.2d 242, 245 (Ind. Ct. App. 2009). "Failure to provide expert testimony will usually subject the plaintiff's claim to summary disposition." Bhatia , 916 N.E.2d at 246.

The Surgical Defendants

[15] The Surgical Defendants argue that they are entitled to summary judgment because Smith failed to present expert testimony rebutting the Panel's unanimous opinion in favor of Dr. Butler. Smith does not dispute that he presented no expert testimony regarding the standard of care applicable to Dr. Butler or whether she breached that standard of care. He argues, instead, that the doctrine of res ipsa loquitur applies, making expert testimony unnecessary.

[16] Like other negligence actions, a medical malpractice plaintiff must prove that the defendant owed him a duty and that the defendant breached that duty, which proximately caused an injury to the plaintiff. Narducci v. Tedrow , 736 N.E.2d 1288, 1292 (Ind. Ct. App. 2000). "Physicians are not held to a duty of perfect care." Id. "Instead, the doctor must exercise the degree of skill and care ordinarily possessed and exercised by a reasonably skillful and careful practitioner under the same or similar circumstances." Id. As noted above, expert testimony is generally required to establish the applicable standard of care and to show a breach of that standard. Id. "Because medicine is an inexact science, an inference of negligence will not arise simply because there is a bad result without proof of some negligent act." Id.

[17] Nevertheless, the doctrine of res ipsa loquitur is a limited exception to the general rule that the mere fact of injury will not create an inference of negligence. Syfu v. Quinn , 826 N.E.2d 699, 703 (Ind. Ct. App. 2005). It recognizes that "the facts or circumstances accompanying an injury may be such as to raise a presumption, or at least permit an inference, of negligence on the part of the defendant." Id. "Application of the doctrine does not in any way depend on the standard of care imposed by law but, rather, depends entirely upon the nature of the occurrence out of which the injury arose." Id.

[18] Determining whether the doctrine applies in any given negligence case is a mixed question of law and fact, with the question of law being whether the plaintiff's evidence included all of the underlying elements of res ipsa loquitur . Id. at 703-04.

Under the doctrine of res ipsa loquitur , negligence may be inferred where 1) the injuring instrumentality is shown to be under the management or exclusive control of the defendant or his servants, and 2) the accident is such as in the ordinary course of things does not happen if those who have management of the injuring instrumentality use proper care.

Id. at 704 (quoting Vogler v. Dominguez , 624 N.E.2d 56, 61 (Ind. Ct. App. 1993), trans. denied ). A plaintiff may establish the second element - the one at issue here - by relying on common knowledge or expert testimony. Id. Expert testimony is required only when the issue of care is beyond the realm of the layperson. Id.

[19] "In the medical malpractice context, application of this exception is limited to situations in which the defendant's conduct is so obviously substandard that a jury need not possess medical expertise in order to recognize the defendant's breach of the applicable standard of care." Methodist Hosps., Inc. v. Johnson , 856 N.E.2d 718, 721 (Ind. Ct. App. 2006) ; see also Syfu , 826 N.E.2d at 705 ("expert testimony is not required when the fact-finder can understand that the physician's conduct fell below the applicable standard of care without technical input from an expert witness"). "Such actions have typically arisen from physicians leaving a foreign object in the patient's body; juries can understand without independent explanation that the object should have been removed." Syfu , 826 N.E.2d at 705.

[20] Here, Dr. Butler's surgical decision to perform the lobectomy was informed by her review of Smith's medical and social history, as well as Dr. Yang's intraoperative pathology consultation. Further weighing in on Dr. Butler's decision was the advantage of doing a single surgery rather than waiting for the permanent slides and possibly having to put Smith through the risks of a second thoracic surgery. Dr. Butler testified that regardless of whether Dr. Yang specifically reported to her that the frozen slides revealed cancer or that they were suggestive of cancer, she would have proceeded with the lobectomy under the circumstances presented.

[21] We agree with the Surgical Defendants that this is not the type of case in which the applicable standard of care is within the realm of the common knowledge of a layperson. See Narducci , 736 N.E.2d at 1293-94 (injury and removal of spleen during colon surgery did not trigger the doctrine of res ipsa loquitur because it was not "apparent that a fact-finder possesses the knowledge and expertise necessary to render an informed decision on the issue of negligence", including "some understanding of the procedures involved in the colon surgery, the location in the body of the various organs at issue, and the nature of the spleen"). An evaluation of Dr. Butler's conduct and the medical reasons for proceeding with the lobectomy in light of Smith's entire clinical picture clearly require expert testimony, which Smith has not provided. Accordingly, the trial court erred when it denied the Surgical Defendants' motion for summary judgment. On remand, the trial court is directed to enter summary judgment in favor of the Surgical Defendants.

The Pathology Defendants

[22] We now turn to the denial of the Pathology Defendants' motion for summary judgment. The Pathology Defendants acknowledge that Smith designated expert testimony to rebut the Panel's opinion that Dr. Yang did not breach the applicable standard of care. They argue, however, that Dr. Griggs's testimony failed to create a genuine issue of material fact because he found "no fault with Dr. Yang's intraoperative diagnosis and testified that Dr. Yang did not breach the applicable standard of care in interpreting the frozen slides." Pathology Defendants Appellants' Brief at 15. Alternatively, the Pathology Defendants argue that Dr. Butler's testimony reveals that she would have performed the lobectomy had Dr. Yang given any intraoperative diagnosis other than a definitive diagnosis that the lesion was benign and, therefore, the designated evidence establishes a lack of causation.

[23] During his deposition, Dr. Griggs acknowledged that pathologists regularly provide intraoperative diagnoses to surgeons based on frozen slides - even though frozen slides are inferior to permanent slides. "The usual standard of care is a frozen section and then it's turned into a permanent section and finalized that way." Appellants' Appendix Vol. 3 at 39. According to Dr. Griggs, in the vast majority of cases, a pathologist can make a clear diagnosis (cancerous or noncancerous) based on frozen slides, which are then confirmed with permanent slides. In cases where the frozen slides are inconclusive, Dr. Griggs testified that the pathologist should defer the diagnosis until review of the permanent slides. Dr. Griggs acknowledged that when communicating a deferral to a surgeon intraoperatively, the pathologist may, without deviating from the standard of care, indicate a leaning along with the deferral.

[24] Dr. Griggs's opinion was not contingent on whether Dr. Yang reported intraoperatively that the specimen was cancer or suggestive of cancer. Dr. Griggs explained:

[M]y concern is that the intraoperative consultation as we see here, suggestive of - would have - they - the pathologist could have had that discussion with the surgeon. Yeah, I think it's suggestive of, but I think it - the frozen section should have been deferred and there should have been a written frozen section diagnosis given to the surgeon. I think that's the standard of care in - in hospitals, an accreditation requirement....[T]he diagnosis would have been positive for cancer or negative for cancer or deferred.... I think what he should have done was defer it here.

Id. at 41. Dr. Griggs went on to clarify that the tumor in question was "an unusual tumor" and that "the frozen slides had components that certainly closely mirrored or mimicked carcinoma", making the slides difficult to interpret. Id. at 41, 45. Although Dr. Griggs would not have faulted Dr. Yang for indicating in a "sidebar conversation" with Dr. Butler that the slides were suggestive of cancer, Dr. Griggs remained critical of Dr. Yang's failure to defer the diagnosis. Id. at 48. In Dr. Griggs's opinion, if Dr. Yang had deferred, Smith "would not have lost the lobe of his lung." Id. at 44.

[25] The whole of Dr. Griggs's deposition testimony does not definitively and unequivocally demonstrate what the standard of care is and that Dr. Yang breached it. Rather, as set out above, Dr. Griggs testified in terms of what he would have done differently or what Dr. Yang should have done. Dr. Griggs did not testify that it was malpractice not to have deferred the diagnosis, and he expressly indicated that Dr. Yang could have properly stated, along with the deferral, that the frozen slides were suggestive of cancer. See Oelling v. Rao , 593 N.E.2d 189, 190-91 (Ind. 1992) ("affirming grant of summary judgment when plaintiff's expert's affidavit stated only how expert would have treated patient differently and did not specifically state that defendant's treatment fell below the applicable standard of care).

[26] But even if Dr. Griggs's testimony establishes a counterpoint to the medical review panel's opinion creating a question of fact as to whether Dr. Yang breached the applicable standard of care, the Pathology Defendants have designated evidence that Smith's alleged injury was not caused by Dr. Yang's performance. Indeed, the designated evidence establishes that Dr. Butler intended to proceed with the lobectomy unless the intraoperative diagnosis was "clearly not cancerous". Appellants' Appendix Vol. 3 at 16. Dr. Griggs conceded that such a diagnosis was not appropriate in this case, as the frozen slides were a "tough call" and demonstrated characteristics that were suggestive of cancer. Id. at 46. Dr. Colby of the Mayo Clinic similarly noted the difficulty of making a diagnosis based on the frozen slides in this case. Given that the slides were difficult to interpret and were suggestive of cancer, along with Smith's entire clinical picture and patient history, Dr. Butler's deposition testimony reveals that she would have proceeded with the lobectomy regardless of whether Dr. Yang deferred with a lean, indicated that the slides were suggestive of cancer, or diagnosed the specimen as cancerous. Smith has designated no contrary evidence that Dr. Butler, the ultimate decisionmaker regarding the lobectomy, would have changed course had Dr. Yang provided an intraoperative diagnosis of inconclusive and deferred for analysis of the permanent slides the next day. See Carey v. Ind. Physical Therapy, Inc. , 926 N.E.2d 1126, 1129 (Ind. Ct. App. 2010) ("Proximate cause requires, at a minimum, that the harm would not have occurred but for the defendant's conduct."), trans. denied . Thus, the designated evidence presents no question of fact regarding causation. On remand, the trial court shall enter summary judgment in favor of the Pathology Defendants.

[27] Judgment reversed and remanded.

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

      The risks associated with the surgery included death, infection, bleeding, "prolonged air leak", and "prolonged mechanical ventilation". Appellants' Appendix Vol. 2 at 146. Additionally, following surgery, Smith would continue to have a chest tube and be in the hospital "as long as the chest tube is in." Id.

      Smith argues that the doctrine of res ipsa loquitur also applies to the Pathology Defendants. For the reasons set out in the discussion of the Surgical Defendants, it does not apply here either.

      When asked if he would withdraw his criticism if Dr. Yang gave a "less than definitive" cancer diagnosis, Dr. Griggs responded that he would not withdraw his criticism and explained: "I think that by not deferring it the confusion was allowed to occur. Or the message didn't get across.... I think they should have deferred it then." Id. at 48.

      In a medical malpractice action, a plaintiff generally must establish three elements: (1) the physician owed a duty to the plaintiff; (2) the physician breached that duty; and (3) the breach proximately caused the plaintiff's injuries. See Green v. Robertson , 56 N.E.3d 682, 692 (Ind. Ct. App. 2016), trans. denied .


text:
    Bryan STONE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 34A02-1710-CR-2514
    Court of Appeals of Indiana.
    FILED October 10, 2018
    Attorney for Appellant: Donald E. C. Leicht, Kokomo, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Henry A. Flores, Jr., Deputy Attorney General, Indianapolis, Indiana
   Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Defendant, Bryan Stone (Stone), appeals his conviction for two counts of dealing in a synthetic drug or synthetic drug lookalike substance, both as Class D felonies, Ind. Code §§ 35-48-4-10.5 (b)(2) ; -(c)(1)(B).

ISSUES

[2] Stone presents two issues for our review which we restate as:

1) Whether his conviction on two counts of dealing in synthetic drug or synthetic drug lookalike substance violates double jeopardy principles; and
2) Whether he was denied a fair trial by the admission of evidence stemming from the search of his backpack.

[3] We affirm in part, reverse in part, and remand with instructions.

FACTS AND PROCEDURAL HISTORY

[4] On June 12, 2014, Officer Alex Harper (Officer Harper) of the Kokomo Police Department responded to a call of a domestic battery in progress in the area of Apperson and Elm streets involving a black male wearing a striped shirt choking a black female. Officer Harper responded to a home at 1030 Apperson where he observed Stone, who fit the description provided in the call, standing with a black female. Officer Harper exited his car to approach them. Stone saw Officer Harper, turned around, and quickly walked away towards the back of the home. As Stone walked away, Officer Harper saw that Stone was carrying a black and red backpack. Officer Harper believed that Stone was attempting to flee, so he followed him. As Officer Harper rounded the corner of the home, Stone was walking back towards him, albeit without the backpack.

[5] Officer Harper asked Stone for his name. Stone appeared to be very nervous. He was shaking and kept repeating, "my name?" (Transcript Vol. I, p. 120). Stone eventually identified himself. Officer Harper spoke to Stone and the female with him, both of whom denied that they had been arguing or that a battery had taken place.

[6] As Officer Harper spoke with Stone, additional officers arrived to assist, including Officer Jason Maynard (Officer Maynard). Officer Maynard made initial contact with Officer Harper and then began to walk around the home, which appeared to be vacant. In Officer Maynard's experience, it was not uncommon for citizens to dump contraband if law enforcement had been summoned. Officer Maynard walked to the side of the property where there was a stairwell. At the bottom of the stairwell perched on top of trash and debris was a black and red backpack. Officer Maynard yelled to Officer Harper, who was approximately twenty feet away out of Officer Maynard's line of sight talking to Stone, and inquired whether Stone had been carrying a backpack. Officer Harper confirmed that Stone had been carrying the backpack Officer Maynard had found.

[7] The backpack contained over 300 packets of synthetic marijuana, known as "spice." (Tr. Vol. I, p. 83). Some of the packets of synthetic marijuana were labeled "Caution, [S]uper-[S]trong [I]ncense." (Tr. Vol. I, p. 87). Others were labeled "Fidel Mix." (Tr. Vol. I, p. 88). The backpack also contained two prescription pill bottles that did not bear Stone's name. Officer Harper detained Stone by placing him in handcuffs. After Officer Harper had provided Stone with his Miranda advisements, Stone denied that the backpack belonged to him. In the area where the backpack had been in the stairwell, Officer Maynard subsequently found a plastic bag containing eleven smaller baggies of a white powdery substance that field tested positive for cocaine.

[8] On June 13, 2014, the State filed an Information charging Stone with dealing in cocaine, a Class A felony; possession of cocaine, a Class A felony; and unlawful possession or use of a legend drug, a Class D felony. On September 24, 2014, the State filed an amended Information reflecting the fact that the white powdery substance found was heroin and charging Stone with dealing in a narcotic drug, a Class B felony; and possession of a narcotic drug, a Class B felony. The State also charged Stone with two identical counts of dealing in a synthetic drug or synthetic drug lookalike substance, both as Class D felonies, in relevant part, as follows:

[O]n or about June 12, 2014 at or near Apperson and Elm, Kokomo in Howard County, State of Indiana, [Stone] did knowingly or intentionally possess with the intent to deliver a synthetic drug or synthetic drug lookalike substance, to-wit: XLR11 in an amount greater than 2 grams[.]

(Appellant's App. Vol. II, pp. 48-49). On June 13, 2014, while Officer Harper collected a sample of Stone's DNA after his arrest, Stone told Officer Harper that the spice found in the backpack was his.

[9] On September 9, 2014, Stone filed a motion to suppress that the trial court denied on December 5, 2014. Stone's jury trial took place on May 19, 22-23, 2017. During its closing arguments, the State argued that

[t]here isn't any question from the evidence that you heard that those packages that you saw, Exhibits, I believe it's 5 and 6, are synthetic drugs. They're a synthetic drug called XLR11. There were two different, I believe the evidence is there were two packages, one was Fidel Mix which the chemist determined had more than 2 grams of this XLR11, and the other one was Caution Incense, and the chemist determined that one had more than 2 grams of XLR11, so when they looked at the Informations, you have two Informations, Counts V and VI, which may appear to you to be identical. I did misstate, the Informations are IV and V, (inaudible) V, they appear to be identical but the elements supporting them is not the same because one is supported by the Fidel Mix with more than 2 grams, and the other one was supported by the Caution with more than 2 grams. And I point that out so you don't get confused and then we have all of the remaining 200 or 305 packages which were not sent to the lab.

(Tr. Vol. I, pp. 189-90). During his closing statement, Stone's defense counsel argued that

[t]here is no doubt that Bryan Stone possessed the spice. There is no doubt that this bag contained whoever you believe, 200 or 300 bags of spice and you don't use that for personal use. That was apparent itself. He possessed it, possessed the duffle bag that it was in, and I'm not going to sit up here and (inaudible) by telling (inaudible) hopefully (inaudible).

(Tr. Vol. I, p. 198). The jury found Stone not guilty of all charges apart from the two synthetic drug charges. On July 20, 2017, the trial court sentenced Stone to 1,095 days for each conviction, to be served concurrently.

[10] Stone now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Double Jeopardy

[11] Stone argues that his convictions for two counts of dealing in a synthetic drug or synthetic drug lookalike substance violate Article 1, Section 14, of the Indiana Constitution. Specifically, Stone contends that his convictions violate Indiana's Double Jeopardy Clause because "[d]ividing the '307 bags of spice' found at one time from one source, diving it into components, each 'greater than 2 grams' does not legally create multiple crimes." (Appellant's Br. at 12) (quotation marks in the original). We review challenges under Indiana's Double Jeopardy Clause de novo . Bennett v. State , 5 N.E.3d 498, 515 (Ind. Ct. App. 2014), reh'g denied , trans. denied .

[12] For purposes of Article 1, Section 14, of the Indiana Constitution, 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." Richardson v. State , 717 N.E.2d 32, 49 (Ind. 1999) (emphasis omitted).

[13] In Campbell v. State , 734 N.E.2d 248 (Ind. Ct. App. 2000), this court addressed the issue of whether our state's Double Jeopardy Clause prohibited multiple convictions for possession where a defendant simultaneously possessed separate quantities of the same illegal drug. After a confidential informant made a controlled buy from him, Campbell was arrested in front of his home and was found to have cocaine on his person. Id. at 250. Campbell's home was subsequently searched pursuant to a search warrant, and cocaine was also found there. Id. The State charged Campbell with two counts of possession of cocaine for having possessed it on his person and for having possessed it in his home. Id. This court held that Campbell could only be convicted of one count of cocaine possession because he had simultaneously possessed the cocaine in his home and on his person. Id. The Campbell court found a separate concurring opinion by Judge Shields on rehearing in Young v. State , 564 N.E.2d 968, 973 (Ind. Ct. App. 1991) to be persuasive:

Young's double jeopardy protection is breached by multiple convictions based upon the location Young had the cocaine which he simultaneously possessed, be it in part in his left trousers' pocket and in part in his right trousers' pocket, or in part in his right trousers' pocket and in part underneath the car seat on which he sat, or, as here, in part on his person and in part in a spray can in his car from which he was removed immediately following the vehicle's stop. The essence of the offense of possession is the possession. Thus, just as the simultaneous possession of a stolen watch and a stolen wallet constitutes but one offense of theft, so too, the possession of the cocaine on a particular occasion is but one offense; the effect of the accumulated quantity possessed is to aggravate the possession rather than to break it into multiple possessions.

Campbell , 734 N.E.2d at 250-51.

[14] In the more recent case of Elvers v. State , 22 N.E.3d 824 (Ind. Ct. App. 2014), this court addressed the issue of whether the simultaneous possession of different brands of spice could support the imposition of multiple charges for possession with intent to deliver. Id. at 832-33. The State had seized 10.62 grams of "Kryp2Nite Original" packages containing the prohibited synthetic drug JWH-122 from Elvers' bathroom closet. Id. at 832. The State had also seized 3.89 grams of spice products containing JWH-122 bearing the brand names "Spike Max" and "K4Silver" from Elvers' gun safe. Id. The State charged Elvers with two counts of dealing in substances containing JWH-122 in excess of two grams. Id. Elvers argued that the separate charges indicated that he had been charged for possession of the specific spice brand names rather than with possession of the prohibited compound JWH-122. Id. at 833. We agreed and held that the State should have only charged Elvers with one count of dealing in a synthetic drug because Elvers effectively had been convicted of two violations arising from his single act of simultaneously possessing multiple products containing JWH-122. Id.

[15] Here, the State charged Stone with two identical counts of possessing with intent to deliver the prohibited compound XLR11 in an amount greater than two grams on June 12, 2014. Both charges stemmed from his simultaneous possession of two packets of spice each containing over two grams of XLR11 on June 12, 2014, that were found in his backpack. In light of Campbell and Elvers , we hold that the State was not permitted to break that simultaneous possession into multiple possessions based solely upon the fact that the packets containing the spice bore different brand names, which was the only distinguishing fact argued by the State at trial to support the two separate charges. Stone's convictions for both counts of dealing in a synthetic drug or synthetic drug lookalike substance violated Indiana's prohibition against double jeopardy. Accordingly, we reverse and remand to the trial court with instructions to vacate one of Stone's convictions.

II. Backpack Search

[16] Stone next contends that the search of his backpack violated his rights under the Fourth Amendment of the United States Constitution and Article 1, Section 11, of the Indiana Constitution. Ordinarily, we review a trial court's decisions on the admission of evidence for an abuse of the trial court's discretion. Fansler v. State , 100 N.E.3d 250, 253 (Ind. 2018). However, such decisions are not subject to review unless a contemporaneous objection was made at trial, regardless of the fact that the defendant filed a pretrial motion to suppress. Jackson v. State , 735 N.E.2d 1146, 1152 (Ind. 2000). Stone did not object at trial to the admission of the evidence garnered from the search of his backpack. As he recognizes on appeal, Stone's claim of error is waived unless he can establish that the admission of the challenged evidence constituted fundamental error.

[17] The doctrine of fundamental error is narrow and may lead to reversal only where there has been a " 'blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.' " Mamon v. State , 6 N.E.3d 488, 490 (Ind. Ct. App. 2014) (quoting Mathews v. State , 849 N.E.2d 578, 587 (Ind. 2006) ). In Brown v. State , 929 N.E.2d 204 (Ind. 2010), our supreme court noted that the admission of evidence as the result of an improper search or seizure does not automatically require reversal, and indeed, does not rise to the level of fundamental error where there is "no claim of fabrication of evidence or willful malfeasance" on the part of officers or where there is no contention that the "evidence is not what it appears to be." Id. at 207. The fundamental error doctrine will, therefore, only be applicable in " 'egregious circumstances.' " Id. (citation omitted).

[18] Here, Stone's factual guilt is not at issue, as he conceded at trial that he possessed the backpack and the spice. On appeal, Stone does not allege, let alone establish, that evidence was fabricated or that the challenged evidence was not what it appeared to be. Stone seemingly intimates that at least one law enforcement officer involved in this case acted improperly, as he suggests that Officer Harper had an ulterior motive for searching his backpack based on his prior knowledge of Stone. However, our review of the record does not disclose any willful malfeasance by law enforcement in this case. The claimed error does not rise to the level of fundamental error, and we decline to review the admissibility of the evidence garnered from the search of Stone's backpack. Mamon , 6 N.E.3d at 490 (finding no fundamental error and declining to review the merits of Mamon's Fourth Amendment and Article 1, Section 11, claims based on evidence garnered from a traffic stop).

CONCLUSION

[19] Based on the foregoing, we conclude that Stone waived his claim of error based upon the admission of evidence gathered from the search of his backpack but also conclude that his conviction for two counts of dealing in a synthetic drug or synthetic lookalike drug violated double jeopardy principles. We reverse in part and remand this matter to the trial court to vacate one of Stone's convictions.

[20] Affirmed in part, reversed in part, and remanded with instructions.

[21] Vaidik, C.J., and Kirsch, J., concur

      The synthetic drug statute was substantially revised by legislation that went into effect on July 1, 2014, after Stone was charged in this matter.

      Stone does not argue that his convictions violate the federal Double Jeopardy Clause.


author: Bradford, Judge.

text:
    David Joseph GUZZO, Robert Glenn Guzzo, and Betty Jo Keller, Appellants-Defendants, v. TOWN OF ST. JOHN, LAKE COUNTY, Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 45A05-1711-PL-2736
    Court of Appeals of Indiana.
    FILED October 11, 2018
    Attorneys for Appellants: Libby Yin Goodknight, Krieg DeVault LLP, Indianapolis, Indiana, Shannon L. Noder, Krieg DeVault LLP, Merrillville, Indiana, G. Michael Schopmeyer, Michael E. DiRienzo, Kahn, Dees, Donovan & Kahn, LLP, Evansville, Indiana
    Attorneys for Appellee: David M. Austgen, Michael J. Jasaitis, Michael L. Muenich, Ryan A. Deutmeyer, Austgen Kuiper Jasaitis P.C., Crown Point, Indiana
   Bradford, Judge.

Case Summary

[1] David Joseph Guzzo, Robert Glenn Guzzo, and Betty Jo Keller ("the Guzzos") appeal from the trial court's entry of summary judgment in favor of the Town of St. John, Lake County ("the Town"), in its eminent domain action against land once owned by the Guzzos ("the Property"). The Guzzos challenge the trial court's conclusion that they are only entitled to receive 100% of the fair market value of the Property. The Guzzos claim that the Property was either a "parcel of real property occupied by the owner as a residence," which would entitle them to receive 150% of its fair market value, or "agricultural land," which would entitle them to 125% of its fair market value. Because we disagree with both contentions, we affirm.

Facts and Procedural History

[2] From approximately 1966 until he passed away in 1990, James Robert Guzzo was the owner of the Property, consisting of two parcels of land (the "North Parcel" and the "South Parcel") located in St. John, Indiana, along U.S. 41. Altogether, the Property consisted of approximately 8.65 acres of wooded, untillable land upon which was a house and a barn, among other improvements. The North Parcel was located in a "C-2" highway commercial zoning district while the South Parcel was located in an "I" light industrial zoning district. Due to the age of the Property and the fact that the house predated the current Town zoning ordinance, the Property was treated as a legal non-conforming use. Pursuant to the zoning ordinance, a non-conforming use ceases six months after the Property is abandoned, a "crops only" agricultural use is permitted in a I zoning district, and commercial greenhouses and/or nurseries are permitted in C-2 zoning district. Other than these types of agricultural uses, none of which actually occurred, the Property could not be used for agriculture pursuant to the zoning ordinance.

[3] Upon James's death, the Property was transferred to the Guzzos, subject to a life estate reserved for Rosemary Rokosz-Guzzo. In September of 2009, Rosemary vacated the Property, and on December 18, 2009, she quitclaimed her life-estate interest to the Guzzos. After Rosemary vacated the Property, neither any of the Guzzos nor any other person resided on the Property. Northern Indiana Public Service Company terminated the gas and electric service, also in December of 2009, and removed the utility meters the next year. Gas and electric services to the Property were never restored.

[4] When the Guzzos owned the Property, no agricultural crops were grown or harvested nor were any agricultural animals, birds, or other creatures grown, raised, husbanded, or otherwise maintained on it. Moreover, the Guzzos have never offered any evidence to suggest that they had any agriculturally-related plan for the Property. The Guzzos have produced no federal, local, or state tax returns that show that any income was received as a consequence of the conduct of agricultural activities on the Property, and the Property was never assessed as "agricultural" during their ownership.

[5] Sometime, apparently in 2013, the Town engaged appraisers to value the Property. At the time the appraisals were completed, it was noted that the residence had been vacant for at least a year. On or about December 30, 2013, the Town entered into an agreement with a developer which involved the proposed development of the Property along with additional public improvements related to U.S. 41. On February 3, 2014, the Town issued a "Uniform Property Acquisition Offer" to each of the Guzzos, in compliance with applicable law, seeking to purchase the Property for a "Roadway Improvement and Economic Development Project." Appellants' App. II pp. 189, 192, 195, 198, 201, 204. On March 18, 2014, the Guzzos rejected the Town's offer.

[6] On March 28, 2014, the Town instituted condemnation proceedings. On July 31, 2014, the trial court approved and entered an agreed order of appropriation of real estate and appointment of appraisers, pursuant to which the Property was appropriated by the Town and was to be appraised by three court-appointed appraisers. The Property was formally transferred to the Town on October 24, 2014, when the Town deposited the appraisal amount of $745,000.00 with the trial court.

[7] On September 7, 2016, the Guzzos filed a motion for partial summary judgment, designation of materials in support, and brief in support on the matter of enhanced compensation pursuant to Indiana Code section 32-24-4.5-8. The Guzzos argued that the Town should compensate them 150% of fair market value for their property because it was "a parcel of real property occupied by the owner as a residence." See Ind. Code § 32-24-4.5-8(2). Alternatively, the Guzzos maintained that the Town should compensate them 125% of fair market value for their property because the Property qualified as "agricultural land." See Ind. Code § 32-24-4.5-8(1). On February 23, 2017, the Town filed its response to the Guzzos' motion for partial summary judgment and cross-moved for partial summary judgment, responding to the issue of enhanced compensation and requesting a declaratory judgment on the legality of the Town's taking of the Property.

[8] On November 8, 2017, the trial court granted the Town's cross-motion for partial summary judgment as to the legality of its taking of the Property. The trial court also concluded that the Property did not qualify as residential property under Indiana Code section 32-24-4.5-8(2) because it was not being occupied by the owner as a residence at the time of the taking. The trial court further concluded that the Property did not qualify as agricultural land under Indiana Code section 32-24-4.5-8(1)"because it was never used for agricultural purposes." Appellants' App. Vol. II p. 34. On November 20, 2017, the trial court amended its order to direct the entry of final judgment in favor of the Town.

Discussion and Decision

[9] The Guzzos appeal from the entry of summary judgment in favor of the Town as to the amount of compensation they are entitled to receive for the Property. On review of a trial court's decision to grant or deny summary judgment, we must determine whether there is a genuine issue of material fact that precludes summary judgment and whether the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C) ; Carie v. PSI Energy, Inc. , 715 N.E.2d 853, 855 (Ind. 1999). A fact is "material" if its resolution would affect the outcome of the case and "genuine" if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences. Williams v. Tharp , 914 N.E.2d 756, 761 (Ind. 2009) (quoting Ind. T.R. 56(C) ).

In reviewing the propriety of a ruling on a motion for summary judgment, we apply the same standards as the trial court and review all the pleadings, depositions, admissions, answers to interrogatories, and any affidavits designated to the trial court in the light most favorable to the nonmovant. The movant bears the burden of proving the propriety of summary judgment, and all rational assertions of fact and reasonable inferences to be resolved therefrom are deemed to be true and are viewed in the nonmovant's favor.

Lindsey v. DeGroot , 898 N.E.2d 1251, 1256 (Ind. Ct. App. 2009) (citation omitted).

[10] The Guzzos limit their challenge to the trial court's conclusion that they are not entitled to enhanced compensation pursuant to Indiana Code section 32-24-4.5-8, which provides, in part, as follows:

a condemnor that acquires a parcel of real property through the exercise of eminent domain under this chapter shall compensate the owner of the parcel as follows:
(1) For agricultural land:
[...]
(i) payment to the owner equal to one hundred twenty-five percent (125%) of the fair market value of the parcel as determined under IC 32-24-1; or [....]
(2) For a parcel of real property occupied by the owner as a residence:
(A) payment to the owner equal to one hundred fifty percent (150%) of the fair market value of the parcel as determined under IC 32-24-1[...]
(3) For a parcel of real property not described in subdivision (1) or (2):
(A) payment to the owner equal to one hundred percent (100%) of the fair market value of the parcel as determined under IC 32-24-1[.]

[11] The trial court concluded that the Property was neither "a parcel of real property occupied by the owner as a residence" nor "agricultural land" and so ruled that the Guzzos were only entitled to 100% of the assessed fair market value. The Guzzos challenge both of those conclusions. Ultimately, the questions are ones of statutory interpretation.

When interpreting a statute, our primary goal is to fulfill the legislature's intent. Adams v. State , 960 N.E.2d 793, 798 (Ind. 2012). And the "best evidence" of that intent is the statute's language. Id. If that language is clear and unambiguous, we simply apply its plain and ordinary meaning, heeding both what it "does say" and what it "does not say." State v. Dugan , 793 N.E.2d 1034, 1036 (Ind. 2003).

Day v. State , 57 N.E.3d 809, 812 (Ind. 2016).

[12] An issue of statutory construction presents a question of law which is reviewed de novo on appeal. Chrysler Group, LLC v. Review Bd. of the Ind. Dep't. of Workforce Dev. , 960 N.E.2d 118, 124 (Ind. 2012). Pursuant to this standard of review, this court owes no deference to the trial court's statutory interpretation. Morgan Cty. v. Ferguson , 712 N.E.2d 1038, 1043 (Ind. Ct. App. 1999). As an initial matter, it seems clear that the legislative intent of Indiana Code section 32-24-4.5-8 is to protect the property rights of certain Hoosiers by erecting an additional obstacle, in the form of enhanced compensation, to the taking of land that falls into certain categories. Whether the Property fell into one of those categories is the question we must answer.

I. Whether the Property Qualified as "Real Property Occupied by the Owner as a Residence"

[13] While acknowledging that the last resident of the Property moved out in 2009, the Guzzos nonetheless contend that the Property qualifies as "a parcel of real property occupied by the owner as a residence" pursuant to Indiana Code section 32-24-4.5-8(2). The Guzzos argue that (1) they "occupied" the Property by mowing it, performing repairs, etc.; (2) interpreting the subsection to require occupancy at the time of the taking is to graft a temporal requirement onto the statute that it does not include; and (3) requiring actual occupancy at the time of the taking could potentially lead to unfair results.

[14] The first of the Guzzos' arguments is without merit. Even if one assumes that the Guzzos were not already required by law to at least mow the Property and keep the house in repair, mowing and repair to an unoccupied house does not equal occupancy. It is undisputed that no owner had actually lived in the house for several years as of the taking, and there is no indication that the absence was ever intended to be anything other than permanent, as it is also undisputed that none of the Guzzos had any intention of ever living on the Property. Indeed, the utilities were shut off and the meters removed several years before the taking. While we will not attempt to formulate a general rule as to what constitutes occupancy, we can say that the facts of this case fall short.

[15] As for the Guzzos' second argument, we conclude that the only reasonable interpretation of the occupancy requirement is that it is satisfied only when the parcel is actually being occupied by an owner as a residence at the time of the taking. The adjective "occupied," even when not preceded by "is" or "being," is generally understood to refer to an occupation that is occurring at a certain point in time, not an occupation that occurred prior to that time but has since ceased. In cases such as this, that certain point in time is when the governmental unit actually takes the land. We conclude that this is the only interpretation that is consistent with the clear legislative intent. To the extent that the General Assembly wants to make it more difficult for a governmental unit to take someone's home, that is not what happens when it takes property containing a house that has been vacant for many years, as was the case here. If we were to accept the Guzzos' proposed interpretation-essentially that the Property qualifies if any owner ever resided on it-then very little land in the State of Indiana would fail to qualify for 150% compensation. This would have the effect of rendering the other two compensation categories in Indiana Code section 32-24-4.5-8 largely superfluous, and it is well-settled that "[w]e must not interpret one provision of a statute so as to render other provisions of the same meaningless."

Kaser v. Barker , 811 N.E.2d 930, 932 (Ind. Ct. App. 2004), trans. denied .

[16] Finally, the Guzzos mention a number of circumstances under which a governmental unit could allegedly unfairly avoid paying enhanced compensation. Examples include the taking of homes put on the market by deceased or relocated owners, summer homes, lake homes, or homes left vacant when the owners are temporarily in nursing homes. While these hypotheticals may be thought-provoking, the Guzzos do not suggest that any of this has occurred in this case. We decline the Guzzos' invitation to address these hypotheticals because they are not before us. The trial court correctly concluded that the Property did not qualify as land occupied by an owner as a residence.

II. Whether the Property Qualified as "Agricultural Land"

[17] In the alternative, the Guzzos contend that the Property was "agricultural land" pursuant to Indiana Code section 32-24-4.5-8(1). There is no dispute that the Property was not being used for any actual agriculture at the time of the taking and had not been for at least several years. The Guzzos argue that the statute does not refer to the use of the land but, rather, its character. While this is true, it does not get the Guzzos where they need to go, because it is a parcel's use for agriculture that gives it "agricultural" character. "Agriculture" is an activity, as opposed to some inherent characteristic such as soil type or location, which may be defined as "[t]he science or art of cultivating soil, harvesting crops, and raising livestock." BLACK'S LAW DICTIONARY 83 (10th ed. 2014). Because there was no agriculture occurring on the Property at the time of the taking, it was not "agricultural land" pursuant to Indiana Code section 32-24-4.5-8(1). While the General Assembly could have included explicit language that required the land at issue be in current agricultural use to qualify for enhanced compensation, we conclude that this was not necessary. While we decline to formulate a general rule as to what constitutes "agriculture," the facts of this case fall short.

[18] As with the Guzzos' other argument, we conclude that our interpretation is the only one that is consistent with the clear legislative intent. To the extent that the General Assembly wants to make it more difficult for a governmental unit to take someone's farm, that is not what happened here. If we were to accept the Guzzos' proposed interpretation, nearly all land in the state would be entitled to enhanced compensation as "agricultural land" pursuant to Indiana Code subsection 32-24-4.5-8(1), rendering subsection -8(3) (which describes land entitled to 100% compensation) largely superfluous. As previously mentioned, "[w]e must not interpret one provision of a statute so as to render other provisions of the same meaningless." Kaser , 811 N.E.2d at 932. The trial court correctly concluded that the Property did not qualify as agricultural land.

[19] The judgment of the trial court is affirmed.

Baker, J., and Kirsch, J., concur.

      We heard oral argument in this case on October 2, 2018, in the Court of Appeals Courtroom in Indianapolis, Indiana. We commend counsel for the high quality of their presentations.

      Although the Town contends that the Guzzos continue to challenge the actual taking, they specifically disclaim such a challenge: "The Guzzo Family does not challenge the underlying legality of the Town's taking of their property." Appellants' Br. pp. 7-8.


text:
    AUTO-OWNERS INSURANCE COMPANY, Appellant-Defendant, v. William LONG, as Administrator of the Estate of Theodore Long, and Ellen Long, Individually, Appellees-Plaintiffs,
    Dean Loucks and The Art of Design, Defendants.
    Court of Appeals Case No. 18A-CT-852
    Court of Appeals of Indiana.
    Filed October 30, 2018
    Attorney for Appellant: Stephen C. Wheeler, Smith Fisher Maas Howard & Lloyd, P.C., Indianapolis, Indiana
    Attorneys for Appellee: Douglas A. Mulvaney, David T. Stutsman, Elkhart, Indiana

      While neither Loucks nor The Art of Design participates in this appeal, Indiana Appellate Rule 17(A) provides that a party of record in the trial court "shall be a party on appeal."

   Bradford, Judge.

Case Summary

[1] While working at a United States Postal Service processing facility, Theodore Long was exposed to a hazardous substance shipped by The Art of Design ("the Insured") in violation of certain postal regulations. This appeal arises out of a declaratory judgment action filed by Long's Estate ("the Estate") to determine the applicable limits of the Insured's commercial general liability insurance policy ("the Policy") issued by Auto-Owners Insurance Company ("Auto-Owners"). The parties filed competing motions for summary judgment, with Auto-Owners arguing that the applicable Policy limits were $1,000,000 and the Estate arguing that the applicable Policy limits were $2,000,000. The trial court granted summary judgment in favor of the Estate, finding that the $2,000,000 Policy limits applied. Because we conclude that the $1,000,000 policy limits apply, we reverse and remand with instructions for the trial court to enter judgment in favor of Auto-Owners.

Facts and Procedural History

[2] In February of 2009, an employee of the Insured mailed a box containing ten bottles of a chemical product known as Medium Reducer AMR-2712 ("the Reducer") to an individual located in Florida. The Reducer contained toxic chemicals such as toluene. During the shipping process, the box was passed through a conveyor system known as a secondary induction-singulator ("the Singulator") at a Postal Service processing facility in Allen Park, Michigan.

[3] While passing through the Singulator, the box broke open and the bottles spilled out of the box. One of the bottles was damaged and leaked onto a conveyor belt, releasing toxic fumes. As he worked to clean up the spill, Long observed that the box was not labeled as containing hazardous materials and had been sealed only by a piece of masking tape.

[4] During the clean-up process, Long was overcome by the fumes and later went to the hospital. The Estate claims that he was permanently disabled as a result of injuries sustained when he was exposed to the chemical fumes. The Estate also claims that the exposure to the Reducer was a direct and proximate cause of his death on June 24, 2016.

[5] After investigating the spill, Postal Service employees determined that the Insured had violated Postal Service regulations relating to both the labeling and packaging of hazardous materials. Specifically, the Insured had failed to properly label the box to indicate that it contained hazardous materials and to package the Reducer in such a way as to prevent the box from breaking and the bottles from leaking. Had the box been properly labeled, it would not have been put through the Singulator but, rather, would have been hand-sorted.

[6] On June 19, 2017, the Estate filed a declaratory judgment action seeking a determination of the applicable Policy limits provided in the Policy. The Estate and Auto-Owners filed competing summary judgment motions. Following a hearing, the trial court entered summary judgment in favor of the Estate.

Discussion and Decision

[7] Auto-Owners appeals from the trial court's grant of summary judgment to the Estate.

Our standard of review for a trial court's grant of a motion for summary judgment is well[-]settled. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Our review of a summary judgment motion is limited to those materials designated to the trial court. We must carefully review a decision on summary judgment to ensure that a party was not improperly denied its day in court.

MacGill v. Reid , 850 N.E.2d 926, 928 (Ind. Ct. App. 2006) (internal citations omitted). "The fact that the parties made cross motions for summary judgment does not alter our standard of review." Id. "When considering cross motions for summary judgment, we consider each motion separately, construing the facts most favorably to the non-moving party in each instance and determine whether the moving party is entitled to judgment as a matter of law." Id. at 929.

[8] Auto-Owners contends that the trial court erred in interpreting the Policy. Specifically, Auto-Owners claims that the trial court erred in finding that there were two occurrences under the terms of the Policy. It is undisputed that the applicable Policy limits in this case are directly related to the number of occurrences causing injury. The parties agree that if there was only one occurrence, the $1,000,000 limit applies, and if there were two occurrences, the $2,000,000 limit applies.

[9] "Interpretation of an insurance contract is a question of law which is particularly well-suited for disposition by summary judgment." Adkins v. Vigilant Ins. Co. , 927 N.E.2d 385, 389 (Ind. Ct. App. 2010). "We review an insurance policy using the same rules of interpretation applied to other contracts, namely if the language is clear and unambiguous we will apply the plain and ordinary meaning." Id. "An insurance policy is ambiguous where a provision is susceptible to more than one interpretation and reasonable persons would differ as to its meaning." Id. "An ambiguity, however, does not exist merely because the parties favor different interpretations." Id. Upon review, we accept "an interpretation of the contract language that harmonizes the provisions rather than the one which supports a conflicting version of the provisions." Id. The power to interpret insurance contracts "does not extend to changing their terms, and we will not give insurance policies an unreasonable construction to provide added coverage." Id.

[10] The Policy at issue defines an occurrence as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." Appellant's App. Vol. II p. 43. We considered an identical definition of an occurrence in Thomson Inc. v. Insurance Co. of North America , 11 N.E.3d 982 (Ind. Ct. App. 2014). In Thomson , we adopted the "cause theory" of determining the number of occurrences causing injury, under which "the number of occurrences is determined by referring to the cause or causes of the damages." 11 N.E.3d at 1005 (internal citation omitted).

[11] In this case, it is undisputed that the box contained hazardous materials as defined by Postal Service and, as a result, the Insured was required to follow certain procedures when mailing the box. The designated materials establish that the box was not properly labeled or packaged. The crux of the parties' disagreement is whether the violations should be considered collectively, i.e. , one occurrence, or separately, i.e. , two occurrences.

[12] While the Insured failed to both properly label and package the box, there was only one accident that resulted from the Insured's failure to take appropriate preventative measures to avoid a spill. Stated differently, although the Insured did two things wrong in shipping the package, the wrongdoing resulted in one spill, i.e. , "one proximate, uninterrupted, and continuing cause which resulted in" Long's injury. See id. at 1001 ; see also Estate of Flemming v. Air Sunshine, Inc. , 311 F.3d 282, 297 (3d Cir. 2002) (providing that where the decedent survived a plane crash but subsequently drowned when allegedly negligent acts caused the plane to sink, the plane crash and the events stemming from the crash all constituted a single accident, resulting in a single occurrence under the terms of the applicable insurance policy). We therefore conclude there was only one occurrence under the terms of the Policy. Accordingly, we reverse the judgment of the trial court and remand with instructions for the court to enter summary judgment in favor of Auto-Owners.

[13] The judgment of the trial court is reversed and remanded with instructions.

Bailey, J., and Mathias, J., concur.