text:
    In the MATTER OF: Jeffrey B. COOPER, Respondent
    Supreme Court Case Nos. 06S00-1612-DI-645 32S00-1710-DI-665 32S00-1712-DI-755
    Supreme Court of Indiana.
    FILED January 17, 2019
    Published Order Approving Statement of Circumstances and Conditional Agreement for Discipline
    Three separate disciplinary complaints have been filed by the Indiana Supreme Court Disciplinary Commission against Respondent. Pursuant to Indiana Admission and Discipline Rule 23 (12.1)(b), the Commission and Respondent have submitted for approval a "Statement of Circumstances and Conditional Agreement for Discipline" stipulating agreed facts and proposed discipline for all three cases. We summarize those facts and agreed rule violations globally below.
    Stipulated Facts: Respondent was retained in six different client representations to handle various matters such as post-death estate administration, property title transfer, drafting of trust and power-of-attorney instruments, and applications for benefits from the Veterans Administration (VA). Although the particulars of each count vary, the common thread in each is that Respondent accepted retainers and thereafter failed to adequately communicate with his clients or appropriately advance their cases. In two of these representations, Respondent took actions constituting the practice of law while he was administratively suspended for dues nonpayment and noncompliance with continuing legal education requirements. In one representation, Respondent failed to properly supervise a paralegal to whom he had delegated client work. After most of these clients filed grievances with the Commission, Respondent failed to timely respond to demands for information from the Commission, leading to the initiation of multiple show cause proceedings against Respondent and a suspension for noncooperation.
    The parties cite as aggravating circumstances Respondent's pattern of misconduct, his commission of multiple violations, and his obstruction of the disciplinary process. The parties cite as mitigating circumstances Respondent's lack of prior discipline apart from the show cause proceedings, his early acceptance of responsibility for his noncooperation, his lack of dishonest or selfish motive, his voluntary involvement with JLAP to address factors contributing to his misconduct, and his full restitution made to all aggrieved clients.
   Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.1: Failing to provide competent representation.
1.3: Failing to act with reasonable diligence and promptness.
1.4(a)(2): Failing to reasonably consult with a client about the means by which the client's objectives are to be accomplished.
1.4(a)(3): Failing to keep a client reasonably informed about the status of a matter.
1.4(a)(4): Failing to comply promptly with a client's reasonable requests for information.
5.3(b): Failing to make reasonable efforts to ensure that the conduct of a nonlawyer employee over whom the lawyer has direct supervisory authority is compatible with the professional obligations of the lawyer.
5.5(a): Engaging in the unauthorized practice of law.
8.1(b): Failing to respond in a timely manner to the Commission's demands for information.

Discipline: The Court, having considered the submission of the parties, now approves the following agreed discipline.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of 180 days, beginning February 22, 2019, with 60 days actively served and the remainder stayed subject to completion of at least two years of probation with JLAP monitoring . The Court incorporates by reference the terms and conditions of probation set forth in the parties' Conditional Agreement, which include among other things:

(1) Respondent shall continue to comply with JLAP's prescribed course of treatment for the entirety of his probationary period.
(2) Respondent shall provide the Commission with an unlimited and irrevocable authorization and release form, to remain effective for the entirety of Respondent's probationary period, allowing JLAP to provide the Commission with information regarding Respondent's treatment and progress.
(3) If Respondent violates the terms of his probation, the stay of his suspension shall be vacated and the suspension shall be actively served without automatic reinstatement.

Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). Notwithstanding the expiration of the minimum term of probation set forth above, Respondent's probation shall remain in effect until it is terminated pursuant to Admission and Discipline Rule 23(16).

The costs of these three proceedings are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in these three cases is discharged.

All Justices concur.


source: Caselaw Access Project

author: Altice, Judge.

license: Public Domain

text:
    INDIANA UNIVERSITY HEALTH SOUTHERN INDIANA PHYSICIANS, INC., Sarah Whiteman, NP, and Carlito D. Sabandal, M.D., Appellants-Defendants,
    Rafi Siddiqi, M.D., Indiana University Health Bedford, Inc., d/b/a Indiana University Health Bedford Hospital, Defendants, v. Charlene NOEL, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CT-1299
    Court of Appeals of Indiana.
    FILED November 7, 2018
    Attorneys for Appellants: James L. Whitlatch, Kathryn DeWeese, Bloomington, Indiana
    Attorneys for Appellee: Sara A. Langer, Steven L. Langer, Valparaiso, Indiana
    Attorneys for Amicus Curiae Defense Trial Counsel of Indiana: Robert J. Palmer, Mishawaka, Indiana, Lucy R. Dollens, Indianapolis, Indiana
    Attorney for Amicus Curiae Indiana Trial Lawyers Association: David L. Farnbauch, Fort Wayne, Indiana, Diana C. Bauer, Fort Wayne, Indiana
   Altice, Judge.

Case Summary

[1] In February 2018, Charlene Noel filed a medical malpractice complaint in Marion Superior Court against several defendants, including Indiana University Health Southern Indiana Physicians, Inc. (IU Health SIP), Sarah Whiteman, NP, and Carlito Sabandal, M.D. (collectively, Appellants). Appellants filed a motion to transfer venue, alleging that Marion County was not a preferred venue under Ind. Trial Rule 75 and requesting that the case be transferred to Lawrence County. The trial court denied the motion. Appellants appeal from the denial of their motion to transfer venue. Amicus curiae briefs have been filed by Defense Trial Counsel of Indiana (DTCI) and Indiana Trial Lawyers Association (ITLA), aligned with Appellants and Noel, respectively.

[2] The only connection that any of the defendants have to Marion County is the Indianapolis address of the registered agent for IU Heath SIP and Indiana University Health Bedford, Inc., d/b/a Indiana University Health Bedford Hospital (IU Bedford Hospital) (collectively, IU Health Entities). Based on this connection, Noel contends that Marion County is a preferred venue under T.R. 75(A)(4) and our Supreme Court's interpretation of this rule in American Family Ins. Co. v. Ford Motor Co. , 857 N.E.2d 971 (Ind. 2006) ( American Family ). Appellants, however, direct us to Ind. Code § 23-0.5-4-12 that went into effect January 1, 2018. This statute provides in part: "The address of the [registered] agent does not determine venue in an action or a proceeding involving the entity." Noel responds that the statute is a nullity because it conflicts with T.R. 75(A)(4) as interpreted by the Court in American Family .

[3] We affirm.

Facts & Procedural History

[4] On February 23, 2018, Noel filed her medical malpractice action in Marion Superior Court against IU Bedford Hospital, Rafi Siddiqi, M.D., and Appellants. The alleged malpractice took place at IU Bedford Hospital, which is in Lawrence County. Noel is also a resident of Lawrence County. IU Health Entities share the same registered agent, Mary Beth Claus, located at an address in Marion County. Based on the location of the registered agent of these defendants, Noel filed the action in Marion County, asserting that it was a preferred venue pursuant to T.R. 75(A)(4).

[5] On April 23, 2018, Appellants filed, along with their answer, a motion to transfer venue, alleging that Marion County is not a preferred venue in this case. Appellants requested that the case be transferred to Lawrence County. Appellants filed with their motion certified copies of documents from the Indiana Secretary of State's records for the IU Health Entities. These documents confirmed that the registered agent for these entities is Mary Beth Claus at an address in Indianapolis, Indiana. The documents, however, separately provided different addresses for the principal office. In this regard, the document related to IU Bedford Hospital provided an address in Bedford, Indiana, and the one related to IU Health SIP listed an address in Bloomington, Indiana (that is, Lawrence County and Monroe County, respectively). Relying on the newly enacted statute, I.C. § 23-0.5-4-12, Appellants argued that the Marion County address of the IU Health Entities' registered agent does not make Marion County a county of preferred venue.

[6] Noel responded to the motion to transfer venue on May 8, 2018. Relying on Indiana Supreme Court precedent, American Family , she argued that the term "principal office", as used in T.R. 75(A)(4), means the county where corporations maintain their resident agent for service of process. Noel argued that the new statute conflicts with T.R. 75, making the statute a nullity. Appellants responded and argued that the two do not conflict and can be read in harmony.

[7] On May 11, 2018, the trial court issued an order summarily denying the motion to transfer venue. Appellants now bring this interlocutory appeal pursuant to Ind. Appellate Rule 14(A)(8).

Standard of Review

[8] The trial court made no factual findings in its order denying the motion to transfer venue. Accordingly, we review the matter de novo. See Arkla Indus., Inc. v. Columbia St. Partners, Inc. , 95 N.E.3d 194, 196 (Ind. Ct. App. 2018), trans. denied .

Discussion & Decision

[9] T.R. 75(A) allows a case to be filed in any county in Indiana. The rule, however, sets forth criteria for establishing preferred venue under ten separate subsections. The rule does not create a priority among the subsections, and there may be multiple preferred venues in a given case. If the action is commenced in a preferred venue, a motion to transfer venue to another preferred venue is not proper and must be denied by the trial court. Arkla Indus. , 95 N.E.3d at 197. On the other hand, if the complaint is not filed in a preferred venue, the trial court is required to transfer the case to a preferred venue upon proper request from a party. Id.

[10] T.R. 75(A)(4) is the subsection at issue here and provides in relevant part that preferred venue lies in "the county where ... the principal office of a defendant organization is located...." In this case, the parties dispute whether Marion County is the county where the IU Health Entities' principal offices are located.

[11] In 2006, in the case of American Family , 857 N.E.2d 971, the Indiana Supreme Court interpreted and defined the term "principal office" as used in T.R. 75(A). The Court held that "the term 'principal office' as used in subsections (4) and (10) of Trial Rule 75(A) refers to a domestic or foreign corporation's registered office in Indiana."

American Family , 857 N.E.2d at 972. The Court observed that the currently effective Indiana Rules of Trial Procedure, including T.R. 75, were adopted in 1970. The Court interpreted the meaning of "principal office" as the term was understood in 1970 and expressly refused to apply the definition of "principal office" from Ind. Code § 23-1-20-19, a statute that was enacted more than fifteen years after the adoption of T.R. 75. The Court explained:

At the time Indiana's corporation law required that both foreign and domestic corporations maintain a "principal office in this state" where a designated resident agent for service of process could be found. Ind. Code § 25-204, 25-306 (Burns Code Ed. Repl. 1969). It is that office to which Trial Rule 75 referred by using the same phrase to provide in subsection (4) that preferred venue lies in "the county where ... the principal office of a defendant organization is located." When the Business Corporation Act was adopted in 1986, what had formerly been called the "principal office in this state" was designated the "registered office." I.C. § 23-1-24-1 (2004). This avoided the confusion between "principal place of business," which means the corporate headquarters for purposes of federal diversity jurisdiction under 28 U.S.C. section 1332, and "principal office," which means the place in Indiana where one serves the corporate registered agent. By adopting the term "registered office," the Business Corporation Act did not intend to change the venue rules for foreign corporations. Indeed, foreign corporations qualified to do business under other laws, for example, the Financial Institutions Act, to this day are required to have a "principal office in this state." See , e.g. , I.C. § 28-1-22-12. In short, at the time the current Rules of Trial Procedure were proposed, the phrase "principal office" referred to what is currently known as the "registered office" of a foreign corporation qualified to do business in Indiana. Thus, if a foreign corporation is qualified to do business in Indiana under the Business Corporation Act, it will necessarily have a "principal office in the state" - now called a "registered office" - irrespective of where its corporate headquarters may be. Accordingly, subsection (4) of Trial Rule 75 establishes preferred venue in the county of the defendant organization's registered office.

American Family , 857 N.E.2d at 974-75 (footnotes omitted).

[12] Because the defendant in American Family had designated CT Corporation, located in Marion County, as its registered office and agent, the Court concluded that Marion County was the defendant's principal office in the state for venue purposes. Id. at 975. Accordingly, the Court determined that the complaint was properly filed in Marion County, a preferred venue, and the trial court erred in transferring the case to another county of preferred venue. Id.

[13] The Court's definition of "principal office" was recently applied in CTB, Inc. v. Tunis , 95 N.E.3d 185, 189 (Ind. Ct. App. 2018), trans. denied . There, the defendant was a domestic corporation with a registered office and agent in Kosciusko County. Relying on American Family , this court stated that "principal office" in the context of T.R. 75 is "the registered office according to Section 23-1-24-1." CTB , 95 N.E.3d at 189. This statute, which had just been repealed, "required corporations to maintain a continuous 'registered office' and 'registered agent' in Indiana and that the address of the 'registered agent' must be the same as the 'registered office.' " Id. at 189. Although CTB had designated agents for service of process in Marion County pursuant to a federal regulation, this court found that fact "completely irrelevant to the question of venue under Trial Rule 75(A)(4)." Id. What mattered was the location of the office of CTB's registered agent under Indiana's corporation law. Id.

[14] Extensive revisions to Indiana's corporation law took effect on January 1, 2018, with the repeal of numerous statutes and the adoption of new ones. Relevant here is the adoption of I.C. § 23-0.5-4-12, which provides:

The designation or maintenance in Indiana of a registered agent does not by itself create the basis for personal jurisdiction over the represented entity in Indiana. The address of the agent does not determine venue in an action or a proceeding involving the entity.

(Emphasis supplied).

[15] On appeal, Appellants and DTCI argue that Marion County is not a preferred venue in this case and, therefore, the motion to transfer venue to Lawrence County should have been granted by the trial court. First, Appellants argue that American Family is not controlling authority in this case because its holding should be limited to foreign companies. Unlike a foreign corporation, as in American Family , Appellants observe that a domestic corporation is physically located in Indiana. Thus, according to Appellants, a domestic corporation can have both a principal office and a registered office/agent.

[16] This argument is a nonstarter and was not raised below. Although American Family dealt with a foreign corporation, the Court's analysis and interpretation of T.R. 75(A)(4) was not dependent on whether the corporation was foreign or domestic. In fact, the first sentence of the opinion states: "We hold that the term 'principal office' as used in subsections (4) and (10) of Trial Rule 75(A) refers to a domestic or foreign corporation's registered office in Indiana." Id. at 972. The holding's application to domestic corporations, as well as foreign, could not be more clear. Further, our court has applied the holding in the context of a domestic corporation. See CTB, 95 N.E.3d at 189.

[17] Appellant's most compelling argument, which DTCI also asserts, is that I.C. § 23-0.5-4-12 makes the address of a corporation's registered agent irrelevant in determining preferred venue. As set forth above, the statute provides in relevant part: "The address of the agent does not determine venue in an action or a proceeding involving the entity."

[18] In addition to I.C. § 23-0.5-4-12, the newly adopted Uniform Business Organizations Code sets out separate definitions for "registered agent" and "principal office".

"Registered agent" is defined as "an agent of an entity which is authorized to receive service of any process, notice, or demand required or permitted by law to be served on the entity. The term includes a commercial registered agent and a noncommercial registered agent." I.C. § 23-0.5-1.5-36. "Principal office" is defined as "the principal executive office of an entity, whether or not the office is located in Indiana." I.C. § 23-0.5-1.5-29. Although foreign and domestic corporations are still required to "designate and maintain a registered agent in this state", I.C. § 23-0.5-4-1, corporations are no longer statutorily required to "maintain in Indiana ... [a] registered office", as previously required by I.C. § 23-1-24-1.

[19] Appellants argue that this new statutory scheme recognizes the important distinction between the location of a corporation's principal office and its registered agent, as well as the reality that corporations now often use commercial registered agents that are not otherwise associated with the corporation. Appellants note that the Indiana Secretary of State requires that each biennial report filed by a corporation include both the address of the corporation's principal office and the name and address of its registered agent. According to DTCI, "[t]he Indiana legislature not only eliminated the legal basis for the Supreme Court's ruling in American Family , it also affirmatively and unambiguously determined that the location of the resident agent was not a basis for preferred venue." DTCI Brief at 7.

[20] In response, Noel and ITLA do not dispute that I.C. § 23-0.5-4-12 is clear and that if it is applicable here, Marion County would not be a county of preferred venue. They argue, however, that the statute is a nullity because it directly conflicts with T.R. 75 as the rule has been interpreted by our Supreme Court.

[21] It is a fundamental rule of law in our state that if a conflict exists between a procedural statute and a rule adopted by the Supreme Court, the rule takes precedence. Ind. Code § 34-8-1-3 provides:

The supreme court has authority to adopt, amend, and rescind rules of court that govern and control practice and procedure in all the courts of Indiana. These rules must be promulgated and take effect under the rules adopted by the supreme court, and thereafter all laws in conflict with the supreme court's rules have no further force or effect.

See also Humbert v. Smith , 664 N.E.2d 356, 357 (Ind. 1996) (generally when a statute conflicts with the Court's rules, the statute is null and void; the Court, however, decided to "assent to provisions the General Assembly has placed in the paternity statute, treating them as an exception to the requirements of Rule 803(6)"); Bowyer v. Ind. Dep't of Nat. Res. , 798 N.E.2d 912, 917 (Ind. Ct. App. 2003) ("When a statute conflicts with the Indiana rules of trial procedure, the rules of procedure govern, and phrases in statutes which are contrary to the rules of procedure are considered a nullity.") (quoting Jackson v. City of Jeffersonville , 771 N.E.2d 703, 706 (Ind. Ct. App. 2002), trans . denied ). Direct conflict is not required. Rather,

[t]he rule and the statute need only be incompatible to the extent that both could not apply in a given situation. A procedural statute may not operate as an exception to a procedural rule having general application. A procedural statute that does not conflict with any of the trial rules may be held operative. However, any statute conflicting with procedural rules enacted by our supreme court shall have no force or effect.

Id. (citations omitted).

[22] In this same vein, T.R. 75(D) provides:

Other venue statutes superseded by this rule. Any provision of these rules and any special or general statute relating to venue, the place of trial or the authority of the court to hear the case shall be subject to this rule, and the provisions of any statute fixing more stringent rules thereon shall be ineffective. No statute or rule fixing the place of trial shall be deemed a requirement of jurisdiction.

[23] Appellants and DTCI argue that there is no conflict between I.C. § 23-0.5-4-12 and T.R. 75 and that the statute does not fix more stringent rules regarding venue than T.R. 75(A). They observe that the plain language of T.R. 75(A)(4) makes no mention of the phrase "registered office," only "principal office." They assert that the location of the registered office became relevant in the context of T.R. 75(A)(4) only after American Family 's interpretation of the phrase "principal office" based on a statute ( I.C. § 23-1-24-1 ) that no longer exists. According to Appellants, the new statute "merely provides guidance on the interpretation of what is not a 'principal office' for purposes of T.R.75 (A)(4)." Appellants' Brief at 15 (emphasis in original). That is, contrary to American Family , the address of the registered agent does not establish preferred venue.

[24] Another panel of this court recently determined that I.C. § 23-0.5-4-12 is not ineffective under T.R. 75(D). Morrison v. Vasquez , 107 N.E.3d 1103, 1109-10 (Ind. Ct. App. 2018) (rehearing denied October 22, 2018). The court stated:

Trial Rule 75(A)(4) provides that preferred venue lies in the county where "the principal office of a defendant organization" is located, and Ind. Code § 23-0.5-4-12 provides that the address of the registered agent does not determine venue. Thus, Ind. Code § 23-0.5-4-12 does not, by its express terms, fix more stringent rules related to venue than the terms of Trial Rule 75(A)(4).

Id. at 1109 The court observed that the holding in American Family was "premised on Indiana corporation law which has since been considerably amended." Id. The Morrison court explained:

Specifically, the Court in [ American Family ] observed that, at the time Rule 75 was adopted in 1970, Indiana's corporation law required that corporations maintain a "principal office in this state" where an agent for service of process could be found and that, "[w]hen the Business Corporation Act was adopted in 1986, what had formerly been called the 'principal office in this state' was designated the 'registered office.' I.C. § 23-1-24-1 (2004)." 857 N.E.2d at 974-975. The Court expressly found that, "[b]y adopting the term 'registered office,' the Business Corporation Act did not intend to change the venue rules for foreign corporations." Id. at 975 (emphasis added). Thus [ American Family ] was based on the corporation law adopted in 1986 and the fact the statutory provisions added by the legislature at that time did not intend to change the venue rules. However, Indiana's corporation law was significantly amended by Pub. Law No. 118-2017 (eff. Jan. 1, 2018). Among other changes, the law repealed all of Ind. Code §§ 23-1-24, including Ind. Code § 23-1-24-1 upon which [ American Family ] depended, and added the new article of Ind. Code §§ 23-0.5 which contains §§ 23-0.5-4 governing the designation and maintenance of registered agents, including Ind. Code § 23-0.5-4-12 which, unlike the provisions adopted in 1986, expressly intends a change to the venue rules. See Pub. Law No. 118-2017, § 5 (enacting Ind. Code §§ 23-0.5), § 11 (repealing Ind. Code §§ 23-1-24). Thus the Indiana corporation law upon which [ American Family ] was centered has been extensively amended, and the specific statutory provision relied upon in that case has been repealed and Ind. Code § 23-0.5-4-12 has been added. We decline to find that Ind. Code § 23-0.5-4-12's provision that the address of a registered agent does not determine venue fixes a more stringent rule related to venue than Trial Rule 75 or is ineffective pursuant to Trial Rule 75(D).

Id. at 1109-10 (footnotes omitted). We cannot agree with our colleagues' determination regarding the effectiveness of the statute.

[25] I.C. § 23-0.5-4-12 clearly conflicts with T.R. 75(A)(4) as the rule has been interpreted by our Supreme Court. As set forth above, in American Family , the Court was concerned with the meaning of "principal office" as it was understood at the time T.R. 75 was adopted in 1970. The Court determined that this phrase, as used in the rule, referred to "the place in Indiana where one serves the corporate registered agent." American Family , 857 N.E.2d at 975. In light of the 1986 amendments to our state's corporation law, the Court determined that this place was now statutorily referred to as "registered office" rather than "principal office". Despite the changed nomenclature, the Court stayed true to the original meaning of the term "principal office" in the rule.

[26] Indiana corporation law has been substantially amended once again and in apparent recognition of the use of commercial registered agents, corporations are no longer required to maintain a "registered office" in the state, as previously mandated by I.C. § 23-1-24-1 (now repealed). Corporations, however, must "designate and maintain a registered agent in this state". I.C. § 23-0.5-4-1(a). "Registered agent" is statutorily defined as "an agent of an entity which is authorized to receive service of any process, notice, or demand required or permitted by law to be served on the entity. The term includes a commercial registered agent and a noncommercial registered agent." I.C. § 23-0.5-1.5-36. Thus, although the statutes have changed, a corporation still must have a registered agent in Indiana authorized to receive service of process. The address of the corporation's registered agent more closely comports with the meaning of "principal office" as the term was understood in 1970 than the current statutory definitions of "principal office," one of which was expressly rejected in American Family .

[27] We reiterate that the Supreme Court has the "authority to adopt, amend, and rescind rules of court that govern and control practice and procedure in all the courts of Indiana." I.C. § 34-8-1-3. Laws in conflict with rules promulgated by the Court "have no further force or effect." Id. Further, procedural rules adopted by the Court are regularly interpreted by the Court, and these cases also "take precedence over any conflicting statutes." Augustine v. First Fed. Sav. & Loan Ass'n of Gary , 270 Ind. 238, 384 N.E.2d 1018, 1020 (1979) ("The procedural rules and cases decided by this Court take precedence over any conflicting statutes"). We hold that I.C. § 23-0.5-4-12 conflicts with T.R. 75(A)(4) as interpreted by the Indiana Supreme Court and that the statute is, therefore, a nullity.

[28] American Family remains controlling law in Indiana. If the Indiana corporate community is dissatisfied with the Court's interpretation of the rule, recourse lies with the Indiana Supreme Court Committee on Rules of Practice and Procedure, not the legislature. See Ind. Trial Rule 80 (establishing the committee and setting forth procedures for amending Indiana Rules of Court).

[29] Affirmed.

Bradford, J. and Tavitas, J., concur.

      We held oral argument at Ivy Tech Community College in Indianapolis on October 16, 2018. We thank counsel for their outstanding written and oral advocacy and extend our appreciation to the faculty, staff, and students of Ivy Tech for their exceptional hospitality.

      The defendant, Ford Motor Company, did not have an office in Indiana but maintained a registered office and agent in Marion County for service of process in the state.

      I.C. § 23-1-20-19 defines "principal office" for purposes of the Business Corporation Act as "the office (in or out of Indiana) so designated in the annual or biennial report where the principal executive offices of a domestic or foreign corporation are located."

      Because neither party had argued that the revisions to Indiana's corporation law were relevant, the court expressly indicated that it would not address the effect of the revisions. Id. at 187.

      As part of the 2018 revisions, the legislature elected to enact a version of the Uniform Law Commission's Model Registered Agents Act, which recognizes the use by many corporations of commercial registered agents with addresses "divorced from any real connection with the business activities of the represented entity." Model Registered Agents Act (amended 2011), prefatory note. I.C. § 23-0.5-4-12 is modeled after Section 15 of the Model Registered Agents Act.

      None of the parties disputes that Lawrence County is a county of preferred venue under T.R. 75(A).

      "Principal office" is similarly defined in I.C. § 23-1-20-19, which was not repealed. See footnote 3, supra .

      In determining the "principal office" in the context of T.R. 75, Appellants would have courts look to the statutory definitions of "principal office." See I.C. § 23-0.5-1.5-29 ("the principal executive office of an entity, whether or not the office is located in Indiana"); see also I.C. § 23-1-20-19 (similar definition application of which American Family expressly rejected).

      The Comment to Section 15 of the Model Registered Agents Act, after which I.C. § 23-0.5-4-12 is based, warns: "This section may be inconsistent with other law or procedural rules in a state, and thus existing law on venue should be reviewed when this act is considered for adoption in a state."

      Appellants and DTCI observe that registered agents are now commonly business entities with no connection to the corporation other than accepting service of process. We acknowledge the tenuous connection that often exists today, but such does not allow us to invade the exclusive province of our Supreme Court and tinker with T.R. 75(A)(4). Further, it is well established that convenience alone is not a sufficient reason to transfer venue in Indiana. See Lake Holiday Conservancy v. Davison , 808 N.E.2d 119, 124 (Ind. Ct. App. 2004) ("Any complaint about the equity ... of Rule 75(A)(5) must be directed to the Supreme Court Committee on Rules of Practice and Procedure.... We will not impose a strained construction upon a clear rule in order to reach what Lake Holiday believes is the more reasonable result."); see also Meridian Mut. Ins. Co. v. Harter , 671 N.E.2d 861, 864 (Ind. 1996) ("The balance of convenience...is not sufficient to disturb the plaintiffs' selection of a forum that meets preferred venue requirements.").


author: Baker, Judge.

text:
    The STATE of Indiana, EX REL. HARMEYER, Appellant-Plaintiff and Relator, v. The KROGER CO., Kroger Limited Partnership I, KRGP, Inc., Payless Super Markets, Inc., and Ralphs Grocery Company, Appellees-Defendants
    Court of Appeals Case No. 18A-PL-806
    Court of Appeals of Indiana.
    FILED November 9, 2018
    Attorneys for Appellant: Eric S. Pavlack, Colin E. Flora, Pavlack Law, LLC, Indianapolis, Indiana
    Attorneys for Appellees: Kimberly E. Howard, Smith Fisher Maas Howard & Lloyd, P.C., Indianapolis, Indiana, Nathaniel Lampley, Jr., Victor A. Walton, Jr., Jacob D. Mahle, Jeffrey A. Miller, Vorys, Sater, Seymour and Pease LLP, Cincinnati, Ohio
   Baker, Judge.

[1] Michael Harmeyer filed a complaint against several grocery stores that operate in Indiana-The Kroger Company; Kroger Limited Partnership I; KRGP, Inc.; Pay Less Super Markets, Inc.; and Ralphs Grocery Company (collectively, the Appellees)-alleging that they violated Indiana's False Claims and Whistleblower Protection Act (the FCA). The Appellees moved to dismiss Harmeyer's complaint, arguing that it did not meet the specificity requirements of Indiana Trial Rule 9(B), which governs fraud claims. The trial court granted the motion and dismissed the complaint. Harmeyer appeals, arguing that the trial court erred in its analysis of Rule 9(B). Finding no error, we affirm.

Facts

[2] The FCA is an anti-fraud statute that permits citizens (called "relators") to bring fraud claims on behalf of the State. The FCA rewards relators who come forward with information about fraud by giving them a percentage of the recovery. The statute allows for statutory penalties and treble damages, meaning that the relator's recovery can be substantial. The FCA

also allows the state attorney general and inspector general to intervene in a relator's case; if they decide not to do so, the relator may pursue it on his own.

[3] In this case, Harmeyer (Relator) filed a complaint under the FCA against the Appellees. Because the Appellees conduct retail sales in Indiana, they are subject to statutory duties to collect Indiana's seven percent sales tax on certain items. Items classified as "food and food ingredients for human consumption" are exempt from Indiana's sales tax, while other items, including candy, soft drinks, prepared food, and dietary supplements are taxed at the seven percent rate. Generally, retail businesses like the Appellees are required to file monthly sales tax returns and remit the tax to the State no later than twenty days after the end of each month. These businesses submit an electronic form called an ST-103, which states their total sales, exempt sales, taxable sales, and total sales tax due.

[4] From approximately April 29, 2014, through approximately July 30, 2016, Relator went on a spending spree, purchasing items from the Appellees' Indiana stores and recording those that he claims should have been subject to sales tax but that were not taxed. He also documented items from these stores that were properly taxed or untaxed. During this same time period, Relator also shopped at competing stores, buying the same or similar items, and recording items considered to be properly taxed or properly untaxed. Relator's list of what he considers improperly untaxed items includes approximately 1,400 purchases from various grocery stores; many of the items are variations of certain products. For example, 131 items on the list are nuts that Relator alleges should have been classified as candy and therefore taxed; in another example, 51 items on the list are kinds of popcorn that Relator alleges should have been classified as candy and therefore taxed.

[5] On January 3, 2017, Relator filed his sixth amended complaint under the FCA, alleging that the Appellees failed to properly collect and remit sales tax to the State of Indiana on candy, soft drinks, prepared food, and dietary supplements. He attached to his complaint the fruits of his labor, which was a list of purchased items and copies of receipts and photographs of twenty-five of his purchases. As required by the FCA, Relator served the Indiana Attorney General and Inspector General with a copy of his complaint and a written disclosure describing the relevant material evidence he possessed; they declined to intervene in the action. On July 13, 2017, the Appellees filed a motion to dismiss Relator's complaint, alleging that the complaint failed to plead fraud with the specificity required by Indiana Trial Rule 9(B) and that Relator had therefore failed to state a claim under Indiana Trial Rule 12(B)(6). On October 19, 2017, a hearing took place, and on March 22, 2018, the trial court granted the Appellees' motion, agreeing with both of their arguments and dismissing the complaint with prejudice. Relator now appeals.

Discussion and Decision

[6] Relator raises two arguments on appeal, which we consolidate and restate as whether the trial court erred by dismissing his complaint. A Trial Rule 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted tests the legal sufficiency of a claim, not the facts supporting it.

K.M.K. v. A.K. , 908 N.E.2d 658, 662 (Ind. Ct. App. 2009). Therefore, we view the complaint in the light most favorable to the non-moving party, drawing every reasonable inference in favor of this party. Id. In reviewing a ruling on a motion to dismiss, we stand in the shoes of the trial court and must determine whether the trial court erred in its application of the law. Id. The trial court's grant of the motion to dismiss is proper if it is apparent that the facts alleged in the complaint are incapable of supporting relief under any set of circumstances. Id. Further, in determining whether any facts will support the claim, we look only to the complaint and may not resort to any other evidence in the record. Id.

I. False Claims Act

[7] The FCA requires the relator to serve a copy of the complaint and a written disclosure that describes all relevant material evidence and information the relator possesses on Indiana's attorney general and inspector general. I.C. § 5-11-5.5-4(c). The State has 120 days in which to decide whether it will intervene and proceed with the action. Id. If the State decides not to intervene, the relator may serve the complaint on the defendant. Id. at -(e)(2).

[8] Indiana Code section 5-11-5.5-2 governs the type of fraudulent conduct that falls under the FCA. This section provides in relevant part that

(b) A person who knowingly or intentionally:
* * *
(6) makes or uses a false record or statement to avoid an obligation to pay or transmit property to the state;
* * *
is, except as provided in subsection (c), liable to the state for a civil penalty of at least five thousand dollars ($5,000) and for up to three (3) times the amount of damages sustained by the state. In addition, a person who violates this section is liable to the state for the costs of a civil action brought to recover a penalty or damages.

I.C. § 5-11-5.5-2(b).

[9] The substance of this section corresponds to the substance of its federal counterpart. Without any Indiana precedent addressing the FCA, we may look to the federal courts for guidance on interpreting the statute. See Ind. Civil Rights Comm'n v. Sutherland Lumber , 182 Ind. App. 133, 140, 394 N.E.2d 949, 954 (1979) (where federal and state statutory language is the same or similar, federal decisions may be persuasive authority that a court may consider).

II. Trial Rule 9(B)

[10] Here, Relator alleges that the Appellees made or used, or caused another person to make or use, false records or statements to avoid their obligation to pay or transmit sales tax on their taxable sales to Indiana. This allegation falls under the FCA. I.C. § 5-11-5.5-2(b)(6). The Southern District of Indiana has explained that claims under the federal FCA sound in fraud. U.S. ex rel. Kietzman v. Bethany Circle of King's Daughters of Madison, Ind., Inc. , 305 F.Supp.3d 964, 973 (S.D. Ind. 2018). Therefore, "the circumstances alleged to constitute the fraud must be pleaded with particularity." Id.

[11] While our rules of trial procedure generally require only notice pleading, Indiana Trial Rule 9(B) provides an exception for complaints alleging fraud. Dutton v. Int'l Harvester Co. , 504 N.E.2d 313, 318 (Ind. Ct. App. 1987). Rule 9(B) requires that in such pleadings, "the circumstances constituting the fraud ... shall be specifically averred." Our Supreme Court has explained that those circumstances "include the time, the place, the substance of the false representations, the facts misrepresented, and the identification of what was procured by fraud." Cont'l Basketball Ass'n, Inc. v. Ellenstein Enterprises, Inc. , 669 N.E.2d 134, 138 (Ind. 1996). Failure to comply with Rule 9(B)'s specificity requirements constitutes a failure to state a claim upon which relief may be granted; thus, any pleading that fails to satisfy the requirements fails to raise an issue of material fact. Kapoor v. Dybwad , 49 N.E.3d 108, 132 (Ind. Ct. App. 2015).

[12] Like its federal counterpart, Rule 9(B) serves to deter groundless suits and provide defendants with sufficient information to enable them to prepare a defense. McKinney v. State , 693 N.E.2d 65, 72 (Ind. 1998) ; Vicom, Inc. v. Harbridge Merchant Servs., Inc. , 20 F.3d 771, 777 (7th Cir. 1994). Regarding Trial Rule 9(B), this Court noted the Seventh Circuit's explanation that

[w]e have read this rule to require describing the who, what, when, where, and how of the fraud. We have noted that the purpose of this particularity requirement is to discourage a "sue first, ask questions later" philosophy. Heightened pleading in the fraud context is required in part because of the potential stigmatic injury that comes with alleging fraud and the concomitant desire to ensure that such fraught allegations are not lightly leveled. We have also cautioned, however, that the exact level of particularity that is required will necessarily differ based on the facts of the case.
.... [W]hile we require a plaintiff claiming fraud to fill in a fairly specific picture of the allegations in her complaint, we remain sensitive to information asymmetries that may prevent a plaintiff from offering more detail.

Kapoor , 49 N.E.3d at 132 (quoting Cincinnati Life Ins. Co. v. Beyrer , 722 F.3d 939, 948 (7th Cir. 2013) ) (some internal quotation marks and citations omitted).

[13] The Seventh Circuit has also noted that "because courts and litigants often erroneously take an overly rigid view of the formulation, we have also observed that the requisite information-what gets included in that first paragraph-may vary on the facts of a given case." Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co. , 631 F.3d 436, 442 (7th Cir. 2011). A plaintiff alleging fraud cannot rely solely on "information and belief" unless the facts constituting the fraud are not accessible to the plaintiff and the plaintiff provides the grounds for his suspicions. Id. at 443.

III. Application

[14] Relator's appeal centers on his argument that the trial court erred by applying the federal, rather than the state, standard for Trial Rule 9(B) and that had the trial court applied the correct standard, his complaint would have passed muster.

[15] It is true that the trial court analyzed Relator's complaint using the language of the federal standard, considering the "who, what, when, where, and how" of the alleged fraud. Although Relator contends that this standard differs from the standard defined in Continental Basketball , we find any difference between the two merely a matter of semantics. Indeed, not only has this Court referenced the federal language, see Kapoor , 49 N.E.3d at 132, but our Supreme Court has applied a framework nearly identical to it on at least one occasion. When analyzing a pleading under Indiana's Deceptive Consumer Sales Act, our Supreme Court found that the complaint and attached affidavits did "not state with specificity what the representations were, who made them, or when or where they were made. Most importantly, in most cases they do not plead what the statements were that were false, and in what respect they were false." McKinney , 693 N.E.2d at 73. In other words, our Supreme Court considered whether the pleading specifically alleged the who, what, when, where, and how of the alleged fraud. Accordingly, here, we find no error with the trial court's use of the "who, what, when, where, and how" framework.

[16] Moreover, Indiana's Rule 9(B) is nearly identical to and serves the same objectives as its federal counterpart; Indiana's FCA is likewise substantially similar to its federal counterpart. Where a state trial rule is patterned after a federal rule, we will often look to the authorities on the federal rule for aid in construing the state rule. Cleveland Range, LLC v. Lincoln Fort Wayne Assocs., LLC , 43 N.E.3d 622, 624 n.1 (Ind. Ct. App. 2015). And where federal and state statutory language is the same or similar, as it is here, federal decisions may be persuasive authority and a court may give careful consideration to such decisions even though they are not binding. Sutherland Lumber , 182 Ind. App. at 140, 394 N.E.2d at 954. Accordingly, we find no error with the trial court's reliance on the "who, what, where, when, and how" framework or on federal caselaw in general.

[17] We agree with the trial court that Relator's complaint did not meet the specificity requirement of Rule 9(B). Regarding the time of the fraud, for example, the trial court found that

... Relator argues that Indiana's sales tax statute requires that sales tax returns be "no later than 20 days after the end of the month." It is not enough to suggest intervals at which false statements may have been made; Relator was required to plead actual dates with false statements were made.

Appealed Order p. 6 (footnote and citation omitted). Relator attached dated receipts to his complaint to show that the Appellees did not tax items that should have been taxed. Relator contends that, to determine the time of the fraud, under Indiana Code section 6-2.5-6-1, we simply need to add twenty days to the last day of the month in which the untaxed transactions occurred. Rather than allege when the Appellees submitted fraudulent information to the State, Relator's complaint invites the Appellees to determine on their own exactly when they may have submitted such forms to the State. Trial Rule 9(B) requires a party to plead the time of the fraud. Suggesting a method of calculating the date of the fraud is simply not the same, or sufficient, for Rule 9(B), nor does it provide defendants with sufficient information to enable them to prepare a defense.

[18] Relator insists that averring the time of the fraud is a low hurdle. We disagree for two reasons. First, Trial Rule 9(F) provides that

[f]or the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter. However, time and place need be stated only with such specificity as will enable the opposing party to prepare his defense.

Thus, averring the time of the fraud is not a low hurdle, but rather requires the same level of specificity as any other element required for a fraud allegation. Second, Relator relies on Ohio Farmers Ins. Co. v. Indiana Drywall & Acoustics, Inc. , to support his assertion, but we find that case distinguishable. 970 N.E.2d 674 (Ind. Ct. App.), trans. granted, opinion vacated , 976 N.E.2d 1234 (Ind. 2012), vacated , 981 N.E.2d 548 (Ind. 2013), and opinion reinstated , 981 N.E.2d 548 (Ind. 2013). In that case, this Court found that the plaintiff specifically pleaded the time and place of the fraud in an exhibit that was attached to the complaint, while the remaining requirements of Rule 9(B) were specifically alleged within the complaint itself. Id. at 684. The attached exhibit was a dated contract that contained the statement that was alleged to be fraudulent. In other words, the attached exhibit clearly documented the date on which the alleged fraudulent statement occurred. Here, however, Relator's Exhibit A provides only the dates on which Relator purchased certain items from the Appellees; unlike in Indiana Drywall , he includes no documentation of the Appellees' alleged fraudulent statements. Relator's complaint, therefore, did not meet the first requirement that our Supreme Court outlined for Rule 9(B).

[19] Because we find that Relator did not particularly plead the time of the alleged fraud as required by Trial Rule 9(B), we need not address the other elements required for a pleading of fraud. But we will still briefly address another of Relator's points: that the trial court applied a pleading standard to his complaint that "effectively guarantee[d] dismissal of meritorious claims before the case's merits [could] be addressed." Appellant's Br. p. 8. According to Relator, the trial court required him to plead information that is solely within the Appellees' knowledge, and that in such circumstances, the Seventh Circuit provides that the pleading standards should be relaxed. It is true that a court may consider " 'information asymmetries that may prevent a plaintiff from offering more detail.' " Kapoor , 49 N.E.3d at 132 (quoting Beyrer , 722 F.3d at 948 ). But at the same time, a plaintiff claiming fraud must " 'fill in a fairly specific picture of the allegations' " in the complaint, id. , because Rule 9(B) requires "some ... means of injecting precision and some measure of substantiation," Kietzman , 305 F.Supp.3d at 974 (quotation marks and citation omitted).

[20] Here, Relator only offers select receipts of items he purchased and a list of other items that he purchased-which identifies the name of the stores where he made the purchase but not the stores' locations-to substantiate his claim that the Appellees made or used false records or statements to avoid their obligation to pay or transmit sales tax on taxable sales to Indiana. He alleges that the Appellees' fraudulent statements were contained in forms that they submitted to the State, but Relator cannot say when those forms were submitted or what information they contain. He can only speculate. Relator further alleges on information and belief that the Appellees' alleged fraud began six years before he began his investigation and continues indefinitely into the future and took place at all of the Appellees's stores. In other words, Relator's complaint simply infers from his purchases that the Appellees have engaged in widespread fraudulent conduct and will continue to do so at the expense of the State of Indiana. Even if we were to relax the Rule 9(B) pleading standards, Relator's complaint simply does not provide a sufficiently specific picture of the allegations, nor does it substantiate his inference that the Appellees violated the FCA.

[21] In sum, we find that the trial court did not err by finding that Relator's complaint did not meet the requirements of Trial Rule 9(B) and by granting the Appellees' motion to dismiss.

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

Robb, J., and Pyle, J., concur.

      Ind. Code ch. 5-11-5.5.

      Ind. Code § 6-2.5-2-2(a).

      I.C. § 6-2.5-5-20.

      I.C. § 6-2.5-6-1(a).

      31 U.S.C. § 3729(a)(1).

      In addition, Relator alleges that "[u]pon information and belief, Kroger's fraudulent conduct began in May 2008 or earlier, is ongoing as of the date this Sixth Amended Complaint was filed, and unless remedied, continues to the date of trial." Appellant's App. Vol. II p. 51. This inexplicably expanded time frame is far too vague and unsupported to meet Rule 9(B)'s specificity requirement.

      Relator also argued that the trial court erred by concluding that no factual basis existed regarding whether the Appellees acted knowingly when they did not collect sales tax for certain items. Because we find that Relator did not meet the requirements of Rule 9(B), we need not address this second issue.


text:
    Marques D. TRICE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-697
    Court of Appeals of Indiana.
    FILED November 13, 2018
    Statement of the Case
    [1] Marques Trice appeals the trial court's order to destroy his handgun. We reverse and remand.
    Issue
    [2] Trice presents one issue for our review, which we restate as: whether the trial court erred by ordering the destruction of Trice's handgun.
    Facts and Procedural History
    [3] On March 14, 2017, Officer Matheis of the Indianapolis Metropolitan Police Department (IMPD) conducted a traffic stop of the vehicle driven by Trice due to the vehicle's lack of illumination for the license plate. When Officer Matheis approached the vehicle, he asked Trice if there were any guns, knives, or other weapons in the vehicle. Trice responded that he had a handgun in the center console. The officer instructed Trice to leave his handgun where it was and returned to his car with Trice's license and registration to check his driving record through the state database, which includes a firearm permit check. The database indicated that Trice's firearm permit had expired. Officer Matheis confirmed this information with IMPD and then had Trice exit the car. The officer read Trice his Miranda rights and asked him whether he knew his permit was expired, whether he had his permit with him, and whether the gun was loaded. Trice responded affirmatively to the questions and showed his permit to Officer Matheis; Trice's permit had expired in 2015. The officer took possession of the handgun, and Trice was charged with carrying a handgun without being licensed as a Class A misdemeanor.
    [4] Following a bench trial, Trice was convicted as charged. The trial court sentenced him to 365 days in jail with credit for six days and 359 days suspended. As part of its sentencing order, the court ordered the destruction of the handgun. Trice now appeals that order.
    Discussion and Decision
    [5] Trice contends the trial court erred by ordering the destruction of his handgun. As an initial matter, the State argues that Trice has waived this issue by failing to object when the trial court ordered the destruction of his handgun at sentencing. We disagree.
    [6] Trice's bench trial was held on March 6, 2018, immediately followed by sentencing. Just prior to the trial court issuing Trice's sentence, the State said:
    [N]oting his lack of criminal history prior to this case, the State would ask that he be placed on reporting probation for a year, pay the Two Hundred Dollar ($200.00) statutorily mandatory uh, mandated Safe School fee, and that the handgun be destroyed.

      Ind. Code § 35-47-2-1 (2014).

   Tr. p. 37. Following defense counsel's statement, the court sentenced Trice:

Court's going to sentence the defendant to three hundred and sixty-five (365) days in jail, with three hundred and fifty-nine (359) days suspended; six (6) days credit, that's three (3) actual days plus three (3) credit days, zero (0) days remaining to be served. Uh, the Court will impose court costs of One Hundred and Eighty-Five Dollars ($185.00), safe school fee of Two Hundred Dollars ($200.00), and a fine of Fifteen Dollars ($15.00). Uh, court will order the destruction of the firearm, and I will not place the defendant on probation or no community service work based on his lack of criminal history. Uh, sir you have the right to appeal this decision.

Id. at 41. Trice did not object.

[7] In Bell v. State , 59 N.E.3d 959 (Ind. 2016), our Supreme Court considered a similar issue when Bell was sentenced and ordered to pay restitution. She did not object at the time the order was entered. On appeal, the Court stated:

[W]e note as a threshold matter that Bell has not waived her ability to challenge the restitution order due to her failure to object to the order at the time it was entered. An order of restitution is as much a part of a criminal sentence as a fine or other penalty. This Court and the Court of Appeals review many claims of sentencing error (improper consideration of an aggravating circumstance, failure to consider a proper mitigating circumstance, inaccurate weighing of aggravating and mitigating circumstances, etc.) without insisting that the claim first be presented to the trial judge. Although there have been cases in which appeals on restitution were waived due to the failure to make an objection at trial, the vast weight of the recent case law in this state indicates that appellate courts will review a trial court's restitution order even when the defendant did not object based on the rationale that a restitution order is part of the sentence, and it is the duty of the appellate courts to bring illegal sentences into compliance.

Id. at 962 (internal quotations and citations omitted).

[8] We find the order to destroy Trice's handgun to be similar to the order of Bell's restitution. It is a penalty as part of a criminal sentence. And because the trial court ordered the destruction of the gun as part of Trice's sentence, we will treat this issue like any other claim that a trial court has violated its statutory authority in imposing a sentence and allow him to raise it for the first time on appeal. See Rodgers v. State , 40 N.E.3d 969, 970 n.5 (Ind. Ct. App. 2015) (although Rodgers did not object, " 'appellate courts will review a trial court's restitution [order] even where the defendant did not object based on the rationale that a restitution order is part of the sentence, and it is the duty of the appellate court to bring illegal sentences into compliance.' " (quoting Rich v. State , 890 N.E.2d 44, 48 (Ind. Ct. App. 2008), trans. denied ); see also Edsall v. State , 983 N.E.2d 200, 208 (Ind. Ct. App. 2013) (although State mentioned restitution several times, specific amount was discussed at length, and defendant failed to object to its imposition, claim that trial court violated its statutory authority in imposing sentence could be raised for first time on appeal because restitution order was part of defendant's sentence). Moreover, practicality dictates allowing Trice to raise the issue on appeal because a sentencing order is usually a final judgment to which the defendant does not have a prior opportunity to object. Accordingly, we address Trice's argument on the merits.

[9] Although Trice did not file a motion for the return of his handgun, the court's order of destruction, in substance, operates to deny the return of Trice's property. Thus, we apply the standard of review used when a trial court has denied a party's motion for the return of property. When we review the denial of a motion for return of property, we will affirm unless the decision is clearly erroneous and cannot be sustained on any legal theory supported by the evidence. Roy v. State , 81 N.E.3d 641, 643 (Ind. Ct. App. 2017). Once its need for the property has terminated, the court has both the jurisdiction and the duty to return seized property. Barany v. State , 54 N.E.3d 386, 387 (Ind. Ct. App. 2016), trans. denied .

[10] Both parties agree this controversy revolves around Indiana Code section 35-47-3-2 (2014), which sets forth the procedures for the return of firearms to rightful owners and the disposal of confiscated firearms. At the time of Trice's offense, this statute provided, in relevant part:

(b) Firearms shall be returned to the rightful owner at once following final disposition of the cause if a return has not already occurred under the terms of IC 35-33-5. If the rightful ownership is not known the law enforcement agency holding the firearm shall make a reasonable attempt to ascertain the rightful ownership and cause the return of the firearm. However, nothing in this chapter shall be construed as requiring the return of firearms to rightful owners who have been convicted for the misuse of firearms. In such cases, the court may provide for the return of the firearm in question or order that the firearm be at once delivered:
(1) except as provided in subdivision (2), to the sheriff's department of the county in which the offense occurred; or
(2) to the city or town police force that confiscated the firearm.

(Emphasis added).

[11] The thrust of Trice's argument is that carrying a handgun without being licensed does not amount to "misuse" of a firearm. However, the phrase "misuse of a firearm" has not been legislatively defined in Indiana for purposes of Indiana Code section 35-47-3-2(b). The question before us then is what constitutes "misuse" of a firearm.

[12] The interpretation of a statute is a question of law that we review de novo. Montgomery v. State , 878 N.E.2d 262, 266 (Ind. Ct. App. 2007). The primary purpose of statutory interpretation is to determine and give effect to the intent of the legislature. Adams v. State , 960 N.E.2d 793, 798 (Ind. 2012). The best evidence of legislative intent is the language of the statute itself. Chambliss v. State , 746 N.E.2d 73, 77 (Ind. 2001). If the language of the statute is clear and unambiguous, we must apply its plain and ordinary meaning without resort to any other rules of statutory construction. Adams , 960 N.E.2d at 798.

[13] When a statute is susceptible to more than one reasonable interpretation, it is ambiguous, and we resort to the rules of statutory construction in order to give effect to the legislature's intent. Id. Undefined words in a statute are to be given their plain, ordinary and usual meaning. State v. Hancock , 65 N.E.3d 585, 587 (Ind. 2016) (citing Ind. Code § 1-1-4-1(1) (1991) ). In determining the plain and ordinary meaning of a statutory term, courts may consult English language dictionaries. Hancock , 65 N.E.3d at 587. Further, criminal statutes must be construed strictly against the State with ambiguities resolved in favor of the defendant. Chastain v. State , 58 N.E.3d 235, 238 (Ind. Ct. App. 2016), trans. denied . They should not be enlarged by construction beyond their fair meaning; yet, they should not be so narrowly construed as to exclude cases they fairly encompass. Id.

[14] With respect to precedent, we observe that a panel of this Court, noting that the Legislature has not defined "misuse of a firearm" as used in the statute at issue here, concluded that the use of a firearm to murder a person is misuse of the firearm. See Barany , 54 N.E.3d at 387 n.4. Additionally, Barany provides a list of what is not misuse of a firearm. See id. (noting that "lawful purposes" of a firearm include "hunting, self-defense, collecting, and competitive or recreational shooting" (quoting Smith & Wesson Corp. v. City of Gary , 875 N.E.2d 422, 427 (Ind. Ct. App. 2007), trans. denied ) ). Nevertheless, neither murder nor any of the lawful purposes identified in Barany are involved in this case.

[15] Accordingly, we begin with the dictionary definition of "misuse." Merriam-Webster defines the noun "misuse" as "incorrect or improper use." https://www.merriam-webster.com/dictionary/misuse (last visited November 2, 2018). Another and similar definition is "The wrong or improper use of something." https://en.oxforddictionaries.com/definition/misuse (last visited November 2, 2018). Additionally, the term is defined as "an occasion when something is used in an unsuitable way or in a way that was not intended" and "the act of using something wrongly or in a dishonest way." https://dictionary.cambridge.org/us/dictionary/english/misuse (last visited November 2, 2018).

[16] We observe that Trice was convicted of carrying a handgun-that is, Trice possessed a handgun-without a license. See Armstrong v. State , 742 N.E.2d 972, 978 (Ind. Ct. App. 2001) ("The offense of carrying a handgun without a license requires mere possession of the handgun."). The evidence shows that Trice's handgun was in the console of his vehicle, and the officer became aware of its existence when Trice answered affirmatively and honestly the officer's inquiry as to whether Trice had any weapons in the vehicle. However, although Trice possessed the handgun, he did not use the handgun. See Nicoson v. State , 938 N.E.2d 660, 665 (Ind. 2010) (declaring that, where statute requires "use"

of firearm in commission of underlying offense, mere possession of firearm is not enough and asserting reasonable inference that "the General Assembly was recognizing the additional escalation of danger associated with the actual use of a firearm versus the mere possession of one during the commission of an offense" and citing Mickens v. State , 742 N.E.2d 927 (Ind. 2001) (recognizing difference between possessing firearm and using firearm) ); see also Daniels v. State , 957 N.E.2d 1025, 1030 (Ind. Ct. App. 2011) (acknowledging that no Indiana cases have addressed meaning of "use" of weapon but noting acceptance that definition includes "brandishing, displaying, bartering, striking with," and "firing or attempting to fire, a firearm" in statutes prohibiting "use" of firearm in commission of offense).

[17] Therefore, the definitions of the term "misuse" can best be applied here to mean that a conviction for the misuse of a firearm must involve some use of the firearm that is incorrect, improper, or unsuitable. Trice did not use the handgun; rather, he was merely in possession of it. Thus, it defies logic and relevant precedent to say that he misused the handgun.

Conclusion

[18] For the foregoing reasons, we conclude Trice's conviction of carrying a handgun without a license does not amount to a conviction of misuse of a firearm. Consequently, the trial court erred by ordering the destruction of Trice's handgun.

[19] Reversed and remanded.

Robb, J., concurs.

Crone, J., dissents with opinion.

Crone, Judge, dissents with opinion.

[20] Based on the dictionary definitions of "misuse" and the wording and purpose of Indiana Code Section 35-47-3-2, I respectfully disagree with the majority's determination that it "defies logic and relevant precedent" to say that Trice misused his handgun when he carried it in his car without a license. Op. at 501. Just as driving a motor vehicle without a license is misuse of the vehicle, i.e., the unlawful, incorrect, dishonest, and unintended use of the object, so in my opinion is carrying a handgun without a license an unlawful, incorrect, and prohibited use of the gun. Moreover, unlike the statutes at issue in Nicoson and Daniels , Section 35-47-3-2 does not require the "use" of a handgun in the commission of an offense; it simply requires a "convict[ion] for the misuse of firearms." Carrying a handgun without a license is misusing a firearm, and thus a conviction for that offense is a conviction for the misuse of firearms. One of the purposes of Section 35-47-3-2 is to punish those convicted of misusing firearms by authorizing the destruction of their firearms, and I would affirm the trial court's destruction order in this case.

      And unlike the Mickens court, we are not confronted with a double jeopardy issue here.


author: Najam, Judge.

text:
    John DEWEESE, Sr. and John DeWeese, Jr., Individually and d/b/a John & John Associates, Inc., Appellants/Cross-Appellees-Defendants/Counter-Plaintiffs, v. Karen J. PRIBYLA, Appellee/Cross-Appellant-Plaintiff/Counter-Defendant.
    Court of Appeals Case No. 18A-PL-1505
    Court of Appeals of Indiana.
    FILED November 14, 2018
    Attorney for Appellants: John K. McDavid, Hostetter & Associates, Brownsburg, Indiana
    Attorneys for Appellee: Eric D. Somheil, Katherine S. Brown, Brown & Somheil, Brazil, Indiana
   Najam, Judge.

Statement of the Case

[1] John & John Associates, Inc. ("John & John"), a real property improvement supplier under Indiana Code Section 24-5-11-6 (2018), agreed to improve the residential property of Karen J. Pribyla, a senior consumer under Indiana Code Section 24-5-0.5-2(a)(9). However, John & John never provided Pribyla with a written real property improvement contract, which failure was contrary to Indiana Code Sections 24-5-11-10, -11, and -12. As a matter of law, John & John's failure to provide Pribyla with a written contract in conformity with Sections 24-5-11-10, -11, and -12 was a deceptive act, see I.C. § 24-5-11-14, subject to the remedies and penalties of Indiana's Deceptive Consumer Sales Act, I.C. §§ 24-5-0.5-0.1 to -12 ("the DCSA"). And the DCSA authorizes the award of treble damages for uncured deceptive acts against senior consumers. I.C. § 24-5-0.5-4(i). For those and other reasons, the trial court entered an award of treble damages for Pribyla based on John & John's uncured deceptive acts.

[2] John & John raises several issues on appeal, but we need only address the following dispositive issue:

1. Whether the trial court erred when it ordered John & John to pay treble damages under the DCSA for John & John's failure to provide a senior consumer with a written contract in conformity with Indiana Code Sections 24-5-11-10, -11, and -12.

On cross-appeal, Pribyla raises the following issue for our review:

2. Whether the trial court erred when it concluded that John DeWeese, Sr. ("DeWeese, Sr.") and John DeWeese, Jr. ("DeWeese, Jr."), the only shareholders of John & John, were not personally liable to Pribyla.

[3] We affirm.

Facts and Procedural History

[4] In November of 2013, Pribyla, who was sixty-nine years old at the time, hired John & John to remodel the kitchen at her residence in Brazil. John & John never provided Pribyla with a written contract for the work to be done. Pribyla later directed John & John to do additional work around her home, for which, again, John & John did not provide a written contract.

[5] Pribyla believed that the home improvement work would be done by the end of 2013 and paid invoices as John & John sent them to her. However, in January of 2014, Pribyla approached John & John about the rising costs of the still-uncompleted work, and John & John, for the first time, gave Pribyla a written estimate for the work. The estimate was hand-written and stated that more than $38,000 would be required to complete the remainder of the work. Pribyla and John & John reached an impasse shortly thereafter, and, in May, Pribyla asked John & John to finish the work within thirty days and within 5% of the January estimate. Instead, John & John filed for a mechanic's lien.

[6] In September, Pribyla, through counsel, informed John & John that it had engaged in numerous deceptive acts under Indiana law and requested John & John to cure those acts. John & John declined to accept Pribyla's certified letter and did not take any steps to cure the alleged deceptive acts. Pribyla thereafter filed a complaint against John & John as well as against DeWeese, Sr. and DeWeese, Jr., the only two shareholders of John & John.

[7] On September 1, 2016, and March 17, 2017, the court held a bench trial on Pribyla's complaint. In February of 2018, the court entered judgment for Pribyla on her claim against John & John but found against her on her claim that DeWeese, Sr. and DeWeese, Jr. were personally liable. The court supported its judgment with extensive findings of fact and conclusions thereon. In particular, aside from finding that DeWeese, Sr. and DeWeese, Jr. were shielded from personal liability, the court also found that John & John had engaged in numerous deceptive acts under the DCSA, which acts the court also found to demonstrate home improvement fraud under Indiana Code Chapter 35-43-6. The court then ordered John & John to pay Pribyla treble damages under the DCSA "and/or" the home improvement fraud statutes. Appellant's App. Vol. II at 22. The court's judgment for Pribyla and against John & John totaled $56,647.73. This appeal ensued.

Discussion and Decision

Standard of Review

[8] The parties appeal the trial court's findings of fact and conclusions thereon, which the court entered following a bench trial. As our Supreme Court has made clear, in such cases

[w]e may not set aside the findings or judgment unless they are clearly erroneous. In our review, we first consider whether the evidence supports the factual findings. Second, we consider whether the findings support the judgment. Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference. A judgment is clearly erroneous if it relies on an incorrect legal standard. We give due regard to the trial court's ability to assess the credibility of witnesses. While we defer substantially to findings of fact, we do not defer to conclusions of law. We do not reweigh the evidence; rather we consider the evidence most favorable to the judgment with all reasonable inferences drawn in favor of the judgment.

State v. Int'l Bus. Machs. Corp. , 51 N.E.3d 150, 158 (Ind. 2016) (citations and quotation marks omitted).

Issue One: Award of Treble Damages

[9] On appeal, John & John first asserts that the trial court's award of treble damages under the DCSA is clearly erroneous. In particular, John & John asserts that the evidence does not show that it possessed the requisite intent to defraud necessary to prove an "incurable" deceptive act, and, thus, its "mere violation" of the DCSA does not support an award of treble damages. Appellant's Br. at 15. Under the DCSA, an "[i]ncurable deceptive act" requires an "intent to defraud or mislead." I.C. § 24-5-0.5-2(a)(8).

[10] However, the trial court did not support its judgment on treble damages under the DCSA on the basis that John & John had engaged in an "incurable" deceptive act. Instead, the court found that John & John had left a curable act "uncured." See Appellant's App. Vol. II at 18. The DCSA permits treble damages in some circumstances when the deceptive act is not incurable but, rather, simply uncured. See, e.g. , I.C. 24-5-0.5-4(i). An "[u]ncured deceptive act" is an act "with respect to which a consumer who has been damaged by such act has given notice to the supplier" under the DCSA and either "(i) no offer to cure has been made to such consumer within thirty (30) days after such notice; or (ii) the act has not been cured as to such consumer within a reasonable time after the consumer's acceptance of the offer to cure." I.C. § 24-5-0.5-2(a)(7). Thus, while "a consumer must show intent to defraud on the part of the supplier of services" in order to show an incurable deceptive act, "[t]he same showing is not required to establish the existence of an uncured act." Mullis v. Brennan , 716 N.E.2d 58, 65 n.3 (Ind. Ct. App. 1999).

[11] As relevant here, the trial court awarded Pribyla treble damages because John & John did not cure its deceptive acts and because she was a senior consumer. There is no dispute in this appeal that John & John failed to provide Pribyla with a written contract in conformity with the Indiana Code Sections 24-5-11-10, -11, and -12, which, as a matter of law, was a deceptive act subject to the remedies and penalties of the DCSA. I.C. §§ 24-5-11-14, -0.5-3(b)(24); see also Mullis , 716 N.E.2d at 65 ("Through the [Home Improvement Contracts Act, I.C. §§ 24-5-11-1 to -14], the legislature sought to protect consumers by placing specific minimum requirements on the contents of home improvement contracts. Accordingly, we will hold the contractor to a strict standard."). And there is no dispute that at all times relevant to this matter Pribyla was a senior consumer. I.C. § 24-5-0.5-2(a)(9). The DCSA expressly provides that "[a] senior consumer relying upon an uncured or incurable deceptive act ... may bring an action to recover treble damages ...." I.C. § 24-5-0.5-4(i) (emphasis added).

[12] The trial court expressly found, and the evidence supports the court's findings, that Pribyla, through counsel, informed John & John in September of 2014 of its deceptive acts and offered John & John the opportunity to cure those acts. Instead of curing its deceptive acts, John & John refused Pribyla's certified letter. John & John does not challenge the trial court's findings in this regard other than to baldly state that John & John had quit the job, which somehow converted curable deceptive acts into "incurable" deceptive acts and, as such, would deprive Pribyla of her claim for treble damages. We reject John & John's argument, which is not supported with either cogent reasoning or citations to authority. See Ind. Appellate Rule 46(A)(8)(a).

[13] John & John additionally asserts that the trial court erred when it awarded Pribyla treble damages because all of the legal theories underlying the court's award of treble damages required Pribyla to demonstrate that the structure at issue was Pribyla's "dwelling." See, e.g. , I.C. § 24-5-11-7.5(a). But the evidence most favorable to the trial court's judgment, which evidence John & John simply disregards on appeal, readily demonstrates that the structure at issue was Pribyla's dwelling. In her testimony, Pribyla stated that she "reside[s]" at that residence, that it is her "home," that it is her "primary residence," and that she has a homestead exemption on the property. Tr. Vol. II at 5-7. The trial court's judgment is not clearly erroneous on this issue. Thus, we affirm the trial court's decision to award treble damages to Pribyla under the DCSA.

Issue Two: DeWeese, Sr. and DeWeese, Jr.

[14] On cross-appeal, Pribyla asserts that the trial court erred when it concluded that DeWeese, Sr. and DeWeese, Jr. were shielded from personal liability by the corporate nature of John & John. On this issue, Pribyla appeals from a negative judgment. See Branham Corp. v. Newland Res., LLC , 44 N.E.3d 1263, 1278 (Ind. Ct. App. 2015). "A negative judgment will be reversed on appeal only where it is contrary to law." Id.

[15] In particular, Pribyla asserts that DeWeese, Sr. and DeWeese, Jr. were the principal actors for John & John, which the trial court found to have engaged in criminal and deceptive acts. However, on this issue of personal liability, the trial court found, as a matter of fact, that "[c]learly the evidence ... shows that [Pribyla's] business dealings were with John & John Associates, Inc." and that DeWeese, Sr. and DeWeese, Jr. "personally had very little, if anything, in regard to the personal responsibility for the actual work done or not done." Appellant's App. Vol. II at 11-12.

[16] We cannot say that the trial court's judgment on this issue is clearly erroneous. "As a general rule, shareholders are not personally liable for the acts of a corporation ...." Reed v. Reid , 980 N.E.2d 277, 301 (Ind. 2012). However:

courts may invoke the equitable doctrine of piercing the corporate veil in order to protect innocent third parties from fraud or injustice. When a corporation is functioning as an alter ego or a mere instrumentality of an individual or another corporation, it may be appropriate to disregard the corporate form and pierce the veil. The propriety of piercing the corporate veil is highly dependent of the equities of the situation, and the inquiry tends to be highly fact-driven. The burden is on the party seeking to pierce the corporate veil to prove that the corporate form was so ignored, controlled or manipulated that it was merely the instrumentality of another and that the misuse of the corporate form would constitute a fraud or promote injustice.

Id. (citations, alteration, and quotation marks omitted). The trial court found that the facts did not support Pribyla's claim to pierce the corporate veil, and we cannot say as a matter of law that the court's findings are erroneous. At best, Pribyla's argument on appeal is simply a request for this Court to reweigh the evidence, which we will not do. The trial court's findings are supported by the evidence, and the findings support the judgment. We affirm on this issue.

Conclusion

[17] In sum, we affirm the trial court's decision to award Pribyla treble damages. We also affirm the court's conclusion that DeWeese, Sr. and DeWeese, Jr. are not personally liable for the acts of John & John. Thus, we affirm the trial court's judgment.

[18] Affirmed.

Crone, J., and Pyle, J., concur.

      Although technical changes have been made to all of the relevant statutes between November of 2013 and this appeal, there is no dispute that those technical changes are irrelevant to our consideration of the merits of this appeal.

      Pribyla has not denominated her assertions of trial court error as cross-appeals under Indiana Appellate Rule 46(D). But John & John does not suggest that Pribyla's failure to strictly comply with our Appellate Rules prohibits our recognition or consideration of the merits of her cross-appeal, and, indeed, John & John has responded to Pribyla's cross-appeal arguments in its Reply Brief. See Ind. Appellate Rule 46(D)(3) ; cf. N.R. v. K.G. (In re Adoption of O.R.) , 16 N.E.3d 965, 970-72 (Ind. 2014).

      In her brief on appeal, Pribyla also requests that we order John & John to pay her appellate attorneys' fees. We decline her request.

      As we affirm the trial court's award of treble damages under the DCSA, we need not consider the court's alternative basis for treble damages under the home improvement fraud statutes.