text:
    STEINROCK ROOFING & SHEET METAL, INC., Appellant-Plaintiff, v. James S. McCULLOCH, PNC Bank, N.A., Appellee-Defendant.
    No. 22A05-1108-CC-457.
    Court of Appeals of Indiana.
    March 30, 2012.

      Dennis J. Stilger, Dennis J. Stilger, P.S.C., Louisville, KY, Attorney for Appellant.
    Timothy R. McCarthy, Louisville, KY, Attorney for Appellee.
   OPINION

BAKER, Judge.

After the defendant-homeowner’s roof was severely damaged in a windstorm, the plaintiff-contractor undertook to repair the damages. The homeowner failed to pay the entire amount due under the contract because of the contractor’s allegedly deficient workmanship. The contractor sued and the homeowner counterclaimed. Substantial evidence was presented at trial establishing that the contractor’s work was deficient in a number of respects. And the trial court, as the fact finder, properly awarded damages to the homeowner on his counterclaim. The trial court also properly concluded that the contractor had waived any claim to reduce the damage award under the Home Improvement Warranties statute.

Appellant-plaintiff Steinrock Roofing & Sheet Metal, Inc. (Steinrock), appeals the trial court’s judgment entered in favor of appellee-defendant James S. McCulloch, and PNC Bank, N.A. Specifically, Stein-rock argues that the trial court erred in excluding discovery and the potential testimony of an insurance agent who inspected the work and made the payments for repairs on the roof. Steinrock also maintains that the trial court should have found in his favor on his defamation claim and that the trial court erred in finding a material breach of contract by Steinrock. Moreover, Steinrock argues that the trial court should have limited McCulloch’s damages to the difference in fair market value in accordance with Indiana Code section 32-27-1-14, the Home Improvement Warranties statute.

Concluding that the trial court correctly determined that Steinrock breached the contract, properly awarded damages to McCulloch, and finding no other error, we affirm.

FACTS

McCulloch owned an older home in New Albany. On September 14, 2008, the clay tile roof of the residence was severely damaged in a wind storm. Thereafter, McCulloch made a claim for the damage to the roof with Westfield Insurance Company, his homeowner’s insurance carrier.

Westfield estimated that the costs of repairs amounted to approximately $95,000. Thereafter, McCulloch contracted with Steinrock to repair the tile roof. The contract amount was for $95,367.13, which required 2% interest per month for late payments, plus the filing fee and reasonable attorney’s fees.

Steinrock commenced work in May 2009, and completed it in August 2009. Pursuant to the contract, McCulloch made two payments totaling $75,270.60. However, McCulloch withheld $15,000 from the second check in light of concerns that he had regarding various deficiencies in the roof. Those deficiencies included leaking, falling, cracked, and warped tiles, and other tiles that were improperly installed. As a result of McCulloch’s failure to pay the last draw under the contract, Steinrock filed a mechanic’s lien against McCulloch.

Thereafter, Steinrock filed suit against McCulloch, seeking an unpaid balance on the contract in the amount of $29,096.53. McCulloch denied owing this amount and filed a counterclaim, asserting that Stein-rock had installed the roof in a negligent and unworkmanlike manner.

McCulloch hired Gilbert Arnold, a roofing expert from Louisville, Kentucky, to consult about the damages. At a bench trial that commenced on December 2, 2009, Arnold testified many of the field tiles were not attached properly to the wood deck, and many of the hip and ridge tiles were not embedded properly in the mortar and were loose. Mortar was missing in other tiles that resulted in open joints. Arnold further testified that field tiles were spaced too close together in many areas, and some of them appeared to be cupped, broken, and cracked. Arnold was of the opinion that the roof could only be restored by removing all of the tiles and replacing the underlayment and clay tile roofing. In sum, the entire roof needed to be removed and reinstalled.

During the pendency of the action, a second expert that both parties chose inspected the roof. The expert, Richard Spalding, of the Merrick-Kemper Company in Louisville, testified in a videotaped deposition. Spalding’s findings coincided with those of Arnold. Spalding’s primary concern was that the hip and ridge tiles were not properly installed, and he noted that they were poorly embedded in their mortar beds and their fasteners were insufficient. Spalding easily removed the screw holding in one of the hip joints with his fingers because it had failed to engage the wood to a depth of 3/4 inches per the manufacturer’s recommendation. Rather, the hip and tile screws that Steinrock installed penetrated only 3/8 inch.

Spalding testified that he actually removed a hip tile, examined the underlayment, and determined that the tiles were not correctly installed. Spalding stated that two pieces of the underlayment met at a “point” at the hip and ridge, and commented that such was not the proper way to install the underlayment. Tr. p. 168. Spalding also testified that the tile spacing was not correctly laid out, in that there was some overlap and they were laid too tightly or too far apart from each other. Spalding was also of the opinion that the flashing at the chimney was not installed correctly and required replacement.

In sum, Spalding testified that while he did not believe that the entire roof needed to be replaced, many repairs had to be undertaken so the roof would last within its seventy-year life expectancy. Spalding estimated the repair costs at $75,059.00.

At a bench trial that commenced on March 1, 2011, McCulloch introduced photographic evidence that a rather large leak was coming from below the hip tiles. McCulloch testified to the many deficiencies including tiles that were cracked, chipped, warped, or cupped. Mortar was falling out of the hip and ridge joints and fasteners were sticking out of the top pieces of tile. Tile fasteners were being driven into empty joint spaces between the planks on his roof. McCulloch testified that he withheld the last payment because of these deficiencies.

It was also established at trial that during the pendency of the proceedings, McCulloch had heard that Steinrock had gone out of business and telephoned the company to ascertain its status. The phone call was received by a Ms. Tara Hunter who testified at trial. Hunter was the receptionist at Electric Blue, which is a blueprint company that rents office space from Steinrock. Hunter testified that she received a brief phone call from McCul-loch, inquiring as to whether Steinrock was still in business.

Hunter further testified she assured McCulloch that the business was still in operation and began to search for Stein-rock’s phone number. However, Hunter testified that she stopped looking for the number when McCulloch stated that he was checking because one of Steinrock’s former employees allegedly stated that everyone had been laid off and the business was closing. Hunter testified that she spoke with her boss and an employee at Steinrock’s office who verified that the business was still open. Hunter did not inform anyone else of this telephone conversation that she had with McCulloch, and simply dismissed the matter.

Tim Steinrock testified that none of his customers were informed about McCul-loch’s telephone call and stated that he did not lose any business as a result of the call. Moreover, Steinrock did not have to explain this conversation to any colleague, customer, or otherwise.

Steinrock admitted that not all of the roofing work was done correctly. During both direct and cross examination, Stein-rock acknowledged that his crew used the wrong fasteners to attach the hip and ridge tiles. Steinrock also admitted that all the cracked, chipped, and broken tiles needed replaced. He also testified that some fasteners that were used by the crew were not correct and should not have been used. Steinrock then conceded that some of the flashing was not installed correctly, that it did not comply with industry standards, and needed to be redone.

Steinrock admitted to the deficiencies in the roof, yet he believed that the cost of replacing the items would be $6,500 to $7,500. He testified that it would take two men about one week to repair the deficiencies. Following a bench trial on March 1, 2011, the trial court entered judgment for McCulloch on his counter-claim against Steinrock. The trial court determined, among other things, that

23. The inquiry of whether Steinrock is still open made by McCulloch to Tara Hunter does not qualify as a defamatory statement.
24. No customers of Steinrock were notified of this telephone call, and no evidence of Plaintiffs loss was submitted.
25. PNC Bank ... failed to appear or assert any interest in the subject Real Estate herein.
26. McCulloch breached his contract with Steinrock by failing to pay the full contract price and withholding the amount of ... $20,096.58.
27. Steinrock breached its contract with McCulloch by failing to perform the contract in a workmanlike manner and caused damage in the amount of ... $75,059.00.
28. The damages are offset, and this Court awards judgment in favor of McCulloch damages in the amount of ... $54,962.47. This amount equals the difference between the estimate to repair the roof from Merrick Kemper in the amount of ... $75,059.00, less the balance due to Steinrock under the contract in the amount of ... $20,096.53.

Appellant’s Br. p. 16-17. The trial court also denied both parties’ requests for attorney’s fees and released the mechanic’s lien. Steinrock now appeals.

DISCUSSION AND DECISION

I. Discovery

Steinrock argues that the trial court erred in excluding the discovery and potential testimony of McCulloch’s insurance agents who apparently inspected the work and made payment. More particularly, Steinrock maintains that our Supreme Court’s holding in Richey v. Chappell, 594 N.E.2d 443 (Ind.1992), does not apply here because the rule announced in Richey only excludes conclusions, opinions, and legal theories of an attorney or other representative of the party concerning the litigation. Steinrock maintains that nothing precludes the admissibility of the potential evidence because it was merely the insurance agent who handled the homeowner’s claim as a result of the windstorm that led to the original roof damage.

As discussed above, Westfield was McCulloch’s homeowner’s insurance carrier that determined that the roof required replacement as a result of the windstorm. Steinrock delivered a subpoena to West-field at its Louisville, Kentucky address. Thereafter, Westfield’s attorney filed a motion to quash the subpoena.

On March 1, 2011, the trial court entered an order quashing the subpoena, stating that Steinrock did not comply with the Uniform Interstate Deposition and Discovery Act or the notice requirements of Trial Rule 30(B). The trial court further found that the information Steinrock sought from Westfield could contain impressions, conclusions, opinions or legal theories of Westfield to which Steinrock is not entitled to under Richey.

We note that while the trial court did rely on the holding in Richey in denying his request, the fact that the subpoenas were not served correctly and with proper notice, alone, supports the decision to quash the subpoenas and Steinrock does not challenge that finding. Also, no matter what the material in the file might have shown, there was a multitude of evidence that was presented at trial, showing that Steinrock performed the work in a defective and un-workmanlike manner.

Indeed, both experts inspected the roof and the owner of Steinrock admitted that some of the work was deficient and needed to be repaired. In other words, no matter what testimony may have been acquired from an insurance agent in this case or materials that might have been in the claims file, the overwhelming evidence established that the work was performed in an un-workmanlike manner and that the roof needed repairs.

Finally, even assuming for the sake of argument that this issue turns solely on an interpretation of Richey, Steinrock does not prevail because it is attempting to obtain a claims file from a third-party. Again, Westfield was McCulloch’s insurance carrier and not Steinrock’s. Thus, the claims file contained information and communications between McCulloch and the insurance company. The Richey Court addressed the scope of privileged communications between an insured and the insurer in regards to third-party claims as follows:

Uncertainty about whether the insured statements are discoverable gives rise to a conflict about whether a statement should be given at all, and undermines what should be a cooperative relationship amount the insured, insurer and attorney. An insured’s relationship to the insurance company requires full disclosure by the insurer without fear thát the statement may be later obtained by the claimant.

Richey, 594 N.E.2d at 446.

The above rationale applies here. Indeed, Steinrock sought to obtain a claims file that contained communications that obviously would have included statements between McCulloch and his insurance carrier, Westfield. Those materials are inadmissible in accordance with Richey.

We were confronted with a similar situation in Strack & Van Til, Inc. v. Carter, 803 N.E.2d 666 (Ind.App.2004), where a third party was attempting to obtain some claims material of a party opponent. The moving party argued that the rationale in Richey did not apply because there was no search for statements by the insured per se, but, for conclusions that the claims supervisor had made. In response, the Strack court reasoned that

As our Supreme Court held in Richey it is essential that an insured be allowed to make a full statement to its insurer pertaining to an occurrence without the fear that the statement will be used by a third party. The fact that this report contains conclusions by a Strack supervisor that are based on statements by a Strack employee is of no moment. The privilege applies to communications between the insured and its agents to the insurer.

Id. at 674.

In light of the above, we conclude that the trial court did not err in applying the rationale in Richey in these circumstances and quashing the subpoenas that Steinrock had filed in an attempt to obtain the claims file information from McCulloch’s insurance carrier. Thus, Steinrock’s claim fails.

II. Defamation

Steinrock argues that the trial court erred when it found in McCulloch’s favor on the defamation claim. Steinrock maintains that judgment should have been entered in its favor because the evidence established that McCulloch made defamatory statements that Steinrock was allegedly going out of business.

In resolving this issue, we note that

A defamatory communication is said to either be “defamatory per se” or “defamatory per quod.” Id. “A communication is defamatory per se if it imputes: (1) criminal conduct; (2) a loathsome disease; (3) misconduct in a person’s trade, profession, office, or occupation; or (4) sexual misconduct.To maintain an action for defamation per se the plaintiff must demonstrate (1) a communication with defamatory imputation; (2) malice; (3) publication; and (4) damages.

Schrader v. Eli Lilly and Co., 639 N.E.2d 258, 261 (Ind.1994).

As discussed above, the record reflects that McCulloch made a telephone call inquiring as to whether Steinrock was still in business. Hunter, the receptionist who answered the call, received confirmation from her boss and one of Steinrock’s employees that the company was still operating. Hunter informed McCulloch of this fact and terminated the call. Steinrock’s owner testified that none of his customers were informed of the phone call, he did not lose any business because of the phone call, and he did not have to explain the telephone conversation to any colleague or customer.

That being said, the telephone call about which Steinrock complains does not satisfy the definition of defamation. An inquiry about whether a company is still in business does not impute misconduct. The record does not suggest that McCulloch said anything disparaging to Hunter when he simply asked if the business remained open. McCulloch made no other comments with regard to that inquiry and none were repeated or conveyed to customers, colleagues, or anyone else. Finally, Steinrock’s owner conceded that it had not sustained any business or customer loss as a result of the telephone call. As a result, we conclude that the trial court properly entered judgment for McCulloch on the defamation claim.

III. Breach of Contract

Steinrock claims that the trial court erred in finding that it had materially breached the contract. As a result, Stein-rock maintains that there should not have been an offset of the $20,000 that had been withheld.

In resolving this issue, we first note that Trial Rule 52(A) provides that

On appeal of claims tried by the court without a jury, or with an advisory jury, at law or equity, the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

A judgment is clearly erroneous if it is unsupported by the findings and conclusions, and if the record lacks any evidence to support them. Ind.-Am Water Co., Inc. v. Town of Seelyville, 698 N.E.2d 1255, 1259 (Ind.Ct.App.1998).

Notwithstanding Steinrock’s claims, the overwhelming evidence presented at trial demonstrated that Steinrock breached the contract by putting in defective tiles and performing the installation in an un-work-manlike manner. Steinrock admitted to many of the deficiencies and acknowledged that they needed repair and that some of the tiles required replacement.

As noted above, the work took nearly four months to complete. McCulloch testified that while the work was being performed and immediately thereafter, deficiencies were noticed that included cracked, chipped, warped, cupped and/or broken tiles. Many tiles had fallen from the roof, mortar could be seen falling out of hip and ridge tiles, and the roof began to leak.

Arnold, the expert that McCulloch had hired, testified that the entire roof had to be stripped and redone to completely repair the defective conditions. And Spald-ing, the expert that both parties agreed upon, testified about the multitude of deficiencies and stated that the repairs needed to be made to bring the roof to an acceptable standard. Although Spalding did not conclude that the entire roof had to be removed, he noted that the cost of repairs would cost approximately $78,059.

In essence, every person who inspected the roof stated that many of the tiles used were deficient or improperly installed, and that mortar was falling from the hip and ridge tiles when it should not have.

Also, notwithstanding Steinrock’s testimony regarding the low cost of repairs and the alleged short amount of time that it would take to effect the repairs, the evidence demonstrated that it took five crew members over four months to complete the work. And assuming that each member worked a forty hour week over a 4 1/2 month period, a total of 3,400 man hours would be spent on the project. The trial court could reasonably conclude from this evidence that it is not believable that all of the work could be completed in eighty hours.

In fact, Spalding estimated that there would be 1,062 field labor hours for the hip and ridge joints alone. Indeed, all of the parties testified that the repair work would be very tedious and time consuming. Ste-inrock’s estimate of eighty hours to do this work is so out of line with the work originally done on the house, that the trial court could reasonably conclude that this evidence was simply not credible.

That said, the trial court took the Merrick-Kemper estimate of $78,059.00 less the unpaid balance of the contract with Steinrock of $20,096.53. And the trial judge had ample evidence to support her findings of fact on this issue. Moreover, the award to McCulloch, which was the cost of the repairs less what was owed under the contract, is in accord with the law on this issue.

To illustrate, in Snellenbarger v. Kunz, 798 N.E.2d 523 (Ind.App.2003), the circumstances demonstrated that work under a contract had not been performed in a workmanlike manner. The trial court awarded judgment to the property owner which was the difference between the contract price and the amount that the property owner had to pay others to complete the job, and work that was not done correctly by carpenter. We upheld the trial court’s judgment and the award of damages. Id. at 528. The trial court in Snel-lenbarger used the same method in the calculation of damages as it did in this case.

In sum, there was overwhelming evidence presented to the trial court that enabled it to find a breach of contract and award judgment to McCulloch on his counter claim of the original contract price less the cost of repairs.

IV Damage Award

Notwithstanding our discussion above, Steinrock argues that the trial court should have limited McCulloch’s damages to the difference in fair market value and applied the provisions of Indiana Code section 32-27-1-14, the Home Improvement Warranties statute, to the circumstances here. Steinrock asserts that because McCulloch did not introduce any evidence of fair market value, the damage award must be set aside.

In resolving this issue, we first note that Steinrock has not preserved this issue for appellate review because it did not present a warranty defense or “fair market value” defense during discovery or at trial. Indeed, Steinrock first raised this issue in its post-trial memorandum. However, there was no evidence presented at trial regarding any “breach of warranty or fair market value of the property” theory. In short, this was not an issue that was properly before the trial court and is not the law of the case. See Van Bibber v. Norris, 275 Ind. 555, 419 N.E.2d 115, 126 (1981) (observing that raising an issue for the first time post-trial is not permitted).

Waiver notwithstanding, even assuming the trial court should have entertained the theory that Indiana Code section 32-27-1-14 applies here, the result would still be the same. Pursuant to this statute and the provisions of a companion statute, Indiana Code section 32-27-1-15, if damages are awarded for breach of warranty, actual damages that are necessary to effect repair of the defect that is the cause of the breach are properly awarded pursuant to Indiana Code section 32-27-1-15(1)(A).

Therefore, even assuming that the above statutes applied in this instance, the actual damages necessary to effect repair of the defect are properly awardable. And that is precisely what the trial judge did in this case, which was the cost of repair less the amount owed on the original contract.

CONCLUSION

In light of our discussion above, we conclude that the trial court properly excluded certain discovery and the potential testimony of an insurance agent who inspected the work. The trial court also properly found for McCulloch on his breach of contract claim against Steinrock, and on Ste-inroek’s claim against him for defamation. Finally, we conclude that the trial court’s damage award was proper.

The judgment of the trial court is affirmed.

DARDEN, J., and BAILEY, J., concur.

      . Although PNC Bank, N.A., is also a named defendant in this case, it did not appear at trial or assert any interest in the Real Estate.

      . Our Home Improvement Warranties statute, Indiana Code section 32-27-1-14, provides that
      (a) IF a remodeler breaches a warranty set forth in section 12 of this chapter, the owner may bring an action against the remodeler for:
      (1) damages arising from the breach; or
      (2) specific performance.
      (b) If damages are awarded for a breach of a warranty set forth in section 12 of this chapter, the award may not be for more than:
      (1) the actual damages that are:
      (A) necessary to effect repair of the defect that is the cause of the breach; or
      (B) the difference between the value of the home without the defect and the home with the defect;
      (2) the reasonably foreseeable consequential damages arising from the defect covered by the warranty; and
      (3) attorney's fees, if those fees are provided for in the written contract between the parties.


source: Caselaw Access Project

author: CRONE, Judge.

license: Public Domain

text:
    Mark TODISCO, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 32A01-1108-CR-393.
    Court of Appeals of Indiana.
    April 4, 2012.

      Scott Knierim, Danville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Marjorie Lawyer-Smith, Special Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

In March 2009, Mark Todisco was charged with disorderly conduct and intimidation based on his refusal to cooperate with police during a domestic disturbance at the home of his son and daughter-in-law. After numerous delays, his jury trial was eventually set for September 2010. In August 2010, he filed a motion for discharge under Indiana Criminal Rule 4(C), alleging that he should be discharged due to the State’s failure to bring him to trial within one year. The trial court denied his motion, and a jury found him guilty of class B misdemeanor disorderly conduct.

Todisco now appeals, claiming that the trial court erred in denying his motion for discharge. Finding that he waived this issue by failing to promptly and specifically object when the trial date was set beyond the one-year period, we affirm.

Facts and Procedural History

On March 8, 2009, police were dispatched to a Plainfield home in response to a domestic disturbance call concerning a young couple. During the ensuing investigation, the young man’s father, Todisco, arrived on the scene and began yelling at his daughter-in-law and at her parents, who had also arrived. The officers repeatedly warned Todisco to retreat to his vehicle and stop disrupting their investigation. Todisco eventually complied, but made offensive gestures to police and stated that as a school board member, he would see to it that the officers were fired.

On March 16, 2009, the State charged Todisco -with class B misdemeanor disorderly conduct. On March 18, 2009, the trial judge recused himself, and the cause was reassigned. On March 23, 2009, on joint motion of Todisco and the State, his cause was consolidated with a cause against his wife stemming from the same incident. Todisco received two continuances, which delayed the proceedings from May 29 to September 23, 2009. During that time, Todisco sought production of documents from the police department, and the police department filed a third-party appearance.

At a November 4, 2009 pretrial conference, the trial court set a jury trial date of January 25, 2010. On December 17, 2009, the State filed a motion to amend the charges to include one count of class D felony intimidation. The trial court denied the State’s motion to amend, but allowed the State to refile the charges as a new filing, setting the following dates: January 28, 2010 — initial hearing; May 13, 2010— pretrial conference; and June 21, 2010— jury trial. The trial court subsequently reset the trial date for July 12, 2010. On June 18, 2010, the State filed a motion for continuance based on the unavailability of one of its police officer witnesses. Todisco filed a general objection to the State’s motion, but the trial court granted the continuance and reset the trial for September 14, 2010.

On August 11, 2010, Todisco filed a motion for discharge for failure to bring him to trial within the time constraints set by Indiana Criminal Rule 4(C). The State objected, and on September 9, 2010, the trial court denied Todisco’s motion, finding that he had failed to timely object to the trial date being set outside the one-year limitation. On October 15, 2010, Todisco filed a petition for interlocutory appeal, which this Court denied on December 3, 2010. On June 27, 2011, a jury convicted Todisco of disorderly conduct. The trial court declared a mistrial on the intimidation count, and the charge was eventually dismissed. Todisco now appeals. Additional facts will be provided as necessary.

Discussion and Decision

Todisco asserts that the trial court erred in denying his motion for discharge pursuant to Indiana Criminal Rule 4(C). Although the State suggests that we apply an abuse of discretion standard of review, and we acknowledge that the standard of review for Criminal Rule 4(C) appeals has been somewhat unsettled, we recently concluded that disputed findings of fact are entitled to deference, but legal conclusions are to be reviewed de novo. Feuston v. State, 953 N.E.2d 545, 548 (Ind.Ct.App.2011). Because the trial court did not issue findings of fact in this case, we review this appeal de novo.

The Sixth Amendment to the United States Constitution and Article 1, Section 12 of the Indiana Constitution guarantee the right to a speedy trial. Blair v. State, 877 N.E.2d 1225, 1230 (Ind.Ct.App.2007), trans. denied (2008). Regarding the date by which a trial must be held, Criminal Rule 4(C) provides in pertinent part:

No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar. ... Any defendant so held shall, on motion, be discharged.

The duty to bring the defendant to trial within one year rests with the State, and the defendant has no duty to remind either the State or the trial court concerning the State’s duty. Gibson v. State, 910 N.E.2d 263, 266 (Ind.Ct.App.2009). Nevertheless, if the defendant seeks or acquiesces in a delay, the one-year time limit is extended by the length of such delay. State v. Black, 947 N.E.2d 503, 507 (Ind.Ct.App.2011). Moreover, a defendant waives his right to a speedy trial if he is aware or should be aware of the fact that the trial court has set a trial date beyond the applicable time limitation, and he does not object to the trial date. Id. As such, it is the defendant’s “obligation to object at the earliest opportunity so the court can reset the trial for a date within the proper period. Failure to voice a prompt objection is deemed a waiver of the issue.” Hood v. State, 561 N.E.2d 494, 496 (Ind.1990).

The purpose of Criminal Rule 4(C) is to assure early trials, not to discharge defendants. Black, 947 N.E.2d at 508. Thus, a defendant may not sit idly by during the permissible one-year period while the trial court sets a trial date outside the parameters of Criminal Rule 4(C). Id. at 509. To do so constitutes acquiescence. Id.

Here, the State charged Todisco on March 16, 2009. After numerous delays in the form of a judge reassignment, cause consolidation, continuances, and refiling of charges, Todisco’s jury trial was eventually set for July 12, 2010, and then for September 14, 2010. Todisco admits that because of his continuances from May 29, 2009 to September 23, 2009, one hundred seventeen days are attributable to him. Appellant’s App. at 28. Thus, the State had until July 11, 2010, to bring Todisco to trial. On May 14, 2010, the trial date was reset for July 12, 2010, one day after the new expiration date. The record is devoid of any evidence that Todisco objected at that time. On June 22, 2010, the State requested a continuance due to the unavailability of one of its chief witnesses, and the trial was rescheduled for September 14, 2010. Todisco filed a general objection that day, but he did not specify any basis for his objection. See id. at 26 (“Now comes the defendant, by counsel Scott Knierim, would object to a continuance of this matter.”); see also Yurina v. State, 474 N.E.2d 93, 99 (Ind.1985) (“[T]o properly preserve an issue for appellate review, one must state with reasonable specificity the grounds for his objection while before the trial court.”). It was not until August 11, 2010, in his motion for discharge, that he first raised Criminal Rule 4(C) as a bar to his September 2010 trial date. By the time he filed his discharge motion, the one-year period had been expired for one full month. Todisco had not one, but two, opportunities to raise the speedy trial issue when the trial court could have corrected the untimely trial dates. The first time, he did absolutely nothing, and the second time, he objected to the continuance without specifying any basis. Based on the foregoing, we find no error in the trial court’s denial of his motion for discharge. Accordingly, we affirm.

Affirmed.

VAIDIK, J., and BRADFORD, J., concur.

      . The trial court’s order denying Todisco’s motion for discharge is not included in the record. As such, we have only its reference in the chronological case summary, which states, "9/9/10 Motion to Discharge is DENIED as Defendant did not timely object to case being set out more than 1 year.” Appellant’s App. at 10.


author: BARTEAU, Senior Judge.

text:
    William J. HARNESS and Bridget V. Harness, Appellants-Plaintiffs, v. Tabassum PARKAR, Arshad Husain, John Mattingly Homes, Inc., and Lakeridge Crossing Homeowners’ Association, Inc., Appellees-Defendants.
    No. 87A04-1107-PL-380.
    Court of Appeals of Indiana.
    April 5, 2012.

      Leslie C. Shively, Shively & Associates, P.C., Evansville, IN, Attorney for Appellants.
    Shawn M. Sullivan, Terrell, Baugh, Salmon & Born, LLP, Evansville, IN, Attorney for Appellees Tabassum Parkar, Arshad Husain, and John Mattingly Homes, Inc.
    Jeffrey W. Ahlers, Kahn Dees Donovan & Kahn, LLP, Evansville, IN, Attorney for Appellee Lakeridge Crossing Homeowners’ Association, Inc.
   OPINION

BARTEAU, Senior Judge.

STATEMENT OF THE CASE

William J. Harness and Bridget V. Harness (“the Harnesses”) appeal the trial court’s denial of their request for injunc-tive relief and entry of final judgment in favor of Tabassum Parkar, Arshad Husain, John Mattingly Homes, Inc. (“JMH”), and Lakeridge Crossing Homeowners Association, Inc. (“the Association”). We affirm.

ISSUES

The Harnesses raise three issues, which we consolidate and restate as: whether the trial court erred by denying their request for injunctive relief and entering judgment in favor of Parkar, Husain, JMH, and the Association. In addition, Parkar, Husain, JMH, and the Association present a claim for appellate attorney’s fees.

FACTS AND PROCEDURAL HISTORY

In 1995, a real estate development company established Lake Ridge Crossing Subdivision (“Lake Ridge”) in Warrick County. The company enacted restrictive covenants (“the covenants”) to govern the building of homes in Lake Ridge. In addition, the company created the Association to enforce the covenants through an Architectural Review Committee (“the Committee”). Paragraph 4 of the covenants provides, in relevant part:

No structure shall be commenced, erected, constructed or placed on any lot nor thereafter altered or changed without the approval of the Committee. In order to attempt to obtain such approval the building plans, specifications and plot plan together with other information (all hereinafter called Plan) showing the nature, kind, shape, height, materials, design, location and approximate cost of such structure and together with proposed grading and landscaping and such other information as may be reasonably required by the Committee have first been submitted to the Committee for approval. The Committee shall have the sole and exclusive discretion to approve or disapprove the Plan and in approving or disapproving the Plan, the Committee shall consider among other standards in connection with the proposed structure: the materials to be used, the ultimate aesthetic appearance, the harmony of the external design with existing improvements and other planned structures in the SUBDIVTSION, the location, the proposed topographical appearance and the ground elevation of the structure. Notwithstanding the right of the Committee to exercise subjective judgment standards,' the Committee shall not be arbitrary and unreasonable in withholding the approval of the Plan.

Appellants’ App. p. 28.

In 2007, the Harnesses purchased a home on Lot 371 in Lake Ridge. Lot 371 is bounded by Anderson Road on the east, Blue Lake on the west, Lot 372 to the north, and Lot 370 to the south. Due to the lake’s curving shoreline, Lot 370 is longer than Lot 371 on the east-west axis. When the Harnesses bought Lot 371, no home had been built on Lot 370.

In 2010, Parkar and Husain purchased Lot 370 and hired JMH to build a home on the site. JMH submitted a site plan to the Committee. The Committee rejected the site plan because, among other reasons, the proposed site plan violated minimum side yard setback requirements. The Committee invited JMH to provide a revised site plan, and JMH submitted a revised site plan in early 2011. The Committee approved the revised plan.

During the plan review process, the Harnesses learned about Parkar and Hu-sain’s site plan, and they expressed concerns to the Association. Among other concerns, the Harnesses asserted that Par-kar and Husain’s proposed home location on Lot 370 was not in harmony with other lakefront homes in the area. Specifically, the Harnesses contended that the proposed home would be set further back from Anderson Road than other homes and would allow Parkar and Husain to look into the Harnesses’ back yard from the front of their house, thereby impairing the Harnesses’ privacy. On February 8, 2011, the Committee notified JMH that home construction was placed on hold pending further discussion.

The Association held a public meeting to address the Harnesses’ concerns. In addition, the Harnesses submitted documents to the Association in support of their arguments. Furthermore, members of the Association’s board of directors visited the site and sought advice from the Association’s counsel. On March 10, 2011, the Association approved JMH’s site plan, subject to the condition that Parkar and Hu-sain’s home must be located no closer to the water’s edge of Blue Lake than the Harnesses’ home.

The Harnesses were dissatisfied with the Association’s resolution of the dispute and filed a complaint for declaratory judgment and injunctive relief against Parkar, Husain, JMH, and the Association. Par-kar, Husain, and JMH filed a motion for summary judgment, and the Association also filed a motion for summary judgment. Next, the court held an evidentiary hearing on the Harnesses’ request for preliminary injunctive relief. At the hearing, the parties agreed that the hearing would address both preliminary and permanent in-junctive relief.

On June 29, 2011, the trial court issued findings of fact and conclusions of law denying the Harnesses’ request for injunc-tive relief. With respect to the subjective judgment standards set forth in Paragraph 4, as quoted above, the trial court concluded:

6. In approving or disapproving building plans, the Homeowners’ Association is to consider specific ‘subjective judgment standards,’ set forth in Paragraph 4 of the Covenants. The Covenants do not require that proposed structures be built in ‘equal alignment’ nor in ‘harmony’ of location with existing improvements and other planned structures nor do they require that privacy be considered.
7. The Homeowners’ Association considered the Covenant’s ‘subjective judgment standards,’ and made the subjective judgment that, ‘the proposed location of the home must be no closer to the water’s edge of Blue Lake than the distance which the home of Mr. and Mrs. Harness located on Lot 371 is to water’s edge of Blue Lake, measuring from the midpoint of each lot.’ (Defendants’ Exhibit ‘G’)
8. The Homeowners’ Association’s subjective judgments were not arbitrary, unreasonable, or otherwise illegal.
10. The Court is mindful of [the] Harnesses’] concerns regarding the impact of the proposed home construction on their lake view and privacy, as well as the different subjective judgments that may be made as a result of such considerations. However, this Court will not substitute its own subjective judgment for that of the Committee which has the ‘sole and exclusive discretion’ to make such subjective judgments concerning the application and enforcement of the Covenant’s ‘subjective judgment standards.’

Id. at 17-18.

Also on June 29, 2011, the trial court issued an order granting summary judgment to Parkar, Husain, JMH, and the Association. Subsequently, the trial court issued a final judgment on the Harnesses’ complaint. This appeal followed.

DISCUSSION AND DECISION

A. THE HARNESSES’ APPEAL

The Harnesses are appealing from a negative judgment, specifically the trial court’s denial of their request for a permanent injunction and subsequent entry of final judgment. A party who had the burden of proof at trial appeals from a negative judgment and will prevail only if it establishes that the judgment is contrary to law. Hoose v. Doody, 886 N.E.2d 83, 89 (Ind.Ct.App.2008), trams, denied. A judgment is contrary to law when the evidence is without conflict and all reasonable inferences to be drawn from the evidence lead only to one conclusion, but the trial court reached a different conclusion. Id. In addition, where, as here, the trial court issues findings of fact and conclusions of law, its findings and conclusions shall not be set aside unless clearly erroneous. Id. We review the judgment by determining whether the evidence supports the findings and whether the findings support the judgment. Id. We consider only the evidence favorable to the judgment and all reasonable inferences to be drawn from that evidence. Id.

In this case, the Harnesses do not challenge any of the trial court’s findings of fact. Instead, their arguments are based on construction of Lake Ridge’s covenants. A restrictive covenant is an express contract between grantor and grantee that restrains the grantee’s use of land. Villas W. II of Willowridge Homeowners Ass’n, Inc. v. McGlothin, 885 N.E.2d 1274, 1278 (Ind.2008). Restrictive covenants are used to maintain or enhance the value of land by reciprocal undertakings that restrain or regulate groups of properties. Id. Covenants control many aspects of land, including what may be built on the land (fence or above ground pool), how the land may be used (private or commercial), and alienability of the land. Id.

Covenants are a form of express contract, and we apply the same rules of construction when a dispute arises as to the covenants’ terms. Johnson v. Dawson, 856 N.E.2d 769, 772 (Ind.Ct.App.2006). When courts are called upon to interpret restrictive covenants, they are to be strictly construed, and all doubts should be resolved in favor of the free use of property and against restrictions. Id. at 773. The covenanting parties’ intent must be determined from the specific language used and from the situation of the parties when the covenant was made. Id. In addition, the parties’ intentions must be determined from the contract read in its entirety. Id. We attempt to construe contractual provisions so as to harmonize the agreement and so as not to render any terms ineffective or meaningless. Id.

Here, the Harnesses argue that Paragraph 4 of the covenants, as quoted above, required the Association to ensure that Parkar and Husain’s home was situated in alignment with the other homes along Anderson Road and that the Harnesses’ lake view was not obstructed. Their argument is contradicted by Paragraph 4’s plain language. According to that provision, the Association is obligated to “consider ... the location [and] the proposed topographical appearance” of all proposed homes in Lake Ridge. Appellants’ App. p. 28 (emphasis added). Nevertheless, after undertaking this deliberative process, the Association retains “sole and exclusive discretion” to approve site plans, so long as it does not reject any plans in “an arbitrary and unreasonable” manner. Id.

In this case, the record establishes that the Association, through the Committee, initially rejected JMH’s site plan for violating side yard setback requirements and subsequently approved a revised plan. After the Harnesses raised objections, the Association put Parkar and Husain’s house on hold and reopened the process to consider the Harnesses’ objections. Specifically, the Association held a meeting to discuss JMH’s site plan. The Harnesses, Parkar, Husain, members of the Association’s board of directors, and several Lake Ridge residents attended the meeting. After the meeting, the Harnesses submitted to the Association a written statement of their position, with supporting documents. In addition, William Harness had discussions with Alex Copeland, the president of the Association’s board of directors. The Association also sought advice from its counsel. Finally, the Harnesses met with representatives of the Association and JMH at the site. This evidence supports the trial court’s findings of fact regarding the Association’s approval of the site plan and establishes that the Association engaged in the deliberative process required by Paragraph 4 of the covenants.

Furthermore, the trial court’s findings of fact support the trial court’s conclusion of law that the Association did not act in an arbitrary and unreasonable manner. Upon receiving notice of the Harnesses’ objections, the Association established a process to allow the Harnesses to be heard. In addition, the Association approved JMH’s site plan with an added condition that attempted to address the Harnesses’ objections.

The Harnesses’ argument that the Association was required to act upon their objections to Parkar and Husain’s site plan would effectively invalidate Paragraph 4’s grant of discretion to the Association to approve projects. Instead, anytime a Lake Ridge resident raised an objection and cited to the subjective judgment standards, the Association would be required to accept the objection and deny the proposed project as submitted. We cannot apply the covenants in such a manner as to render a provision invalid. See City of Lawrenceburg v. Milestone Contractors, L.P., 809 N.E.2d 879, 883 (Ind.Ct.App.2004) (“Construction of contract language that would render any words, phrases, or terms ineffective or meaningless should be avoided.”), trans. denied. Thus, the trial court’s findings of fact and conclusions of law related to the Association’s application of the subjective judgment standards are not clearly erroneous.

The Harnesses argue that they were entitled to injunctive relief because the undisputed evidence establishes that Parkar and Husain’s house will impair their view of the lake and detrimentally impact the market value of their house. We consider several factors in determining the propriety of permanent injunctive relief, including whether the plaintiff has succeeded on the merits. Drees Co. v. Thompson, 868 N.E.2d 32, 41 (Ind.Ct.App.2007), trans. denied. As we have discussed above, the Harnesses have not succeeded on the merits of their claim because their interpretation of the covenants is erroneous. Therefore, they are not entitled to a permanent injunction.

We conclude that the Harnesses have failed to establish that the trial court’s entry of judgment in favor of Parkar, Hu-sain, JMH, and the Association is contrary to law.

B. APPELLATE ATTORNEY’S FEES

This Court may, in its discretion, assess damages, including attorney’s fees, against an appellant if an appeal is frivolous or in bad faith. Ind. Appellate Rule 66(E). We will assess appellate damages only against an appellant who in bad faith maintains a wholly frivolous appeal. Harness v. Schmitt, 924 N.E.2d 162, 168 (Ind.Ct.App.2010). A strong showing is required to justify an award of appellate damages, and the sanction is not imposed to punish mere lack of merit, but something more egregious. Id.

Here, Parkar, Husain, JMH, and the Association contend that the Harnesses’ appeal lacks legal plausibility and that the Harnesses have misstated material facts. Although the Harnesses do not prevail in this appeal, we cannot conclude that this appeal is frivolous or that they have maintained this appeal in bad faith. Consequently, we deny the request for appellate attorney’s fees. See id. at 169 (declining to award appellate attorney’s fees to an appellee because the appellant’s claims were not “utterly devoid of plausibility”).

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court.

Affirmed.

ROBB, C.J., and BAKER, J., concur.

      . The Association has joined in the Appellees’ Brief filed by Parkar, Husain, and JMH.

      . Parkar, Husain, JMH and the Association cite to the negative judgment standard, but they contend in the alternative that the trial court’s grant of summary judgment in their favor is a separate ground for affirming the judgment. However, after the trial court granted summaiy judgment, Parkar, Husain, and the Association requested that the trial court enter a final judgment. Therefore, it is appropriate to review this case under the negative judgment standard rather than under the standard of review for the grant of summary judgment.


author:
VAIDIK, Judge.
      ROBB, Chief Judge,

text:
    GMAC MORTGAGE, LLC, Appellant-Plaintiff, v. Ronald Glenn DYER, Appellee-Defendant.
    No. 28A04-1107-MF-404.
    Court of Appeals of Indiana.
    April 5, 2012.

      Gregory A. Stout, Reisenfeld & Associates, LPA LLC, Cincinnati, OH, Attorney for Appellant.
    David Pesel, Marcy Wenzler, Indiana Legal Services, Inc., Bloomington, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Ronald Glenn Dyer had an FHA-insured loan that he defaulted on. Dyer and GMAC Mortgage, LLC, attended a settlement conference at which they agreed to proceed with a deed in lieu of foreclosure. After the settlement conference, GMAC drafted a written agreement. The agreement included a provision using language required by the U.S. Department of Housing and Urban Development (HUD) that neither GMAC nor HUD would pursue a deficiency judgment against Dyer. Dyer, however, was not happy with this provision because he did not think that it gave him enough protection. Accordingly, he refused to sign the agreement. Instead, Dyer wanted the agreement to provide that he was released from all personal liability. The trial court agreed with Dyer and ordered GMAC to rewrite the agreement. Because under federal law and HUD regulations deeds in lieu of foreclosure release the borrower from any obligation under the mortgage, the standard language used by GMAC was sufficient to release Dyer from all personal liability. We therefore reverse the trial court.

Facts and Procedural History

On November 14, 2008, Dyer and his now-deceased wife Ella Faye Dyer executed a note in the principal amount of $74,277.00 with Lend America for their Greene County, Indiana, home. The loan was an FHA-insured loan subject to federal statutes and HUD regulations. To secure payment of the note, Dyer and his wife executed a mortgage. The mortgage was eventually assigned to GMAC. Dyer later defaulted under the terms of the note and mortgage.

On January 19, 2010, GMAC filed a Complaint on Note and to Foreclose Mortgage. Dyer filed an answer and counterclaim, and GMAC filed an answer to Dyer’s counterclaim. In addition, GMAC informed Dyer of his right to participate in a settlement conference, which is now required by Indiana law. See Ind.Code § 32-30-10.5-8. Dyer requested a settlement conference, and the trial court scheduled one for June 24, 2010. See id. § 32-30-10.5-10.

At the settlement conference, the parties decided to proceed with a deed in lieu of foreclosure. This is one of many options available to a defaulting homeowner. As one treatise explains:

Often the parties to a mortgage prefer to avoid normal foreclosure procedures. This can be accomplished if the mortgagor is willing to convey the secured property to the mortgagee as a substitute for foreclosure. In turn, the mortgagor in default is completely excused from the underlying obligation. The parties cannot promise in the original note and mortgage documents to resolve a default in this manner. Any such provision would be an unacceptable clog on the mortgagor’s equity of redemption. After default occurs, however, the parties are permitted to resolve their relationship by means of a deed in lieu of foreclosure.

4 Powell on Real Property § 37.44[1] (Michael Allan Wolf ed., 1997) (footnotes omitted).

On December 30, 2010, GMAC sent Dyer a deed in lieu of foreclosure agreement to sign and return. Appellant’s App. p. 113. The agreement provided, in pertinent part:

10.Provided all terms and conditions of this Agreement are met and this transaction concluded, GMAC Mortgage, LLC, agrees that neither it nor the U.S. Department of Housing and Urban Development [will] pursue a deficiency-judgment from the Mortgagor.

Id. at 118. GMAC gave Dyer a January 10, 2011, deadline. Id. at 113. Because Dyer did not believe that paragraph 10 released him from personal liability nor complied with HUD regulations, he never signed and returned the agreement.

Instead, on February 4, 2011, Dyer requested leave to supplement his answer to GMAC’s complaint as well as a declaratory judgment. Id. at 48. The request provides, in relevant part:

8. On June 24, 2010, the Plaintiff and Mr. Dyer had a settlement conference pursuant to I.C. 32-30-10.5-8(c) by telephone. The Plaintiff agreed to accept a deed in lieu of foreclosure from Mr. Dyer in exchange for a release of personal liability.
9. On September 17, 2010, Mr. Dyer’s counsel, by email, confirmed Mr. Dyer’s agreement to move out of his home in exchange for delivering a deed in lieu of foreclosure including a specific waiver of any deficiency owed.
10. On September 20, 2010, Matt Wach, a Legal Loss Mitigation Analyst for GMAC, by email, agreed to the confirmation.
11. On October 4, 2010, in reliance on Plaintiffs agreement to accept a deed in lieu of foreclosure that released him from liability, Mr. Dyer moved out of his home of 21 years.
12. Plaintiff delayed until November 30, 2010 to send to Mr. Dyer drafts of Plaintiffs deed in lieu documents which consisted of an Agreement (setting forth terms of the deed in lieu arrangement), a General Warranty Deed, an Estoppel Affidavit and (a later emailed) Conditional Delivery of Deed (hereinafter, collectively the “DIL Documents”).
13. The DIL Documents provided by the Plaintiff do not release Mr. Dyer from personal liability.
14. The DIL Documents including this misleading provision about not pursuing a deficiency judgment:
Provided all terms and conditions of this Agreement are met and this transaction concluded, GMAC Mortgage, LLC agrees that neither it nor the U.S. Department of Housing and Urban Development [will] pursue a deficiency judgment from the Mortgagor.
15. The above provision is misleading because pursuant to The Deficit Reduction Act of 1984 ..., HUD does not need to get a deficiency judgment to collect from Mr. Dyer.
16. Mr. Dyer’s counsel, by email of January 10, 2011, notified Plaintiff that the DIL Documents were unsatisfactory and did not conform to HUD’s requirements.

Id. at 49-51.

A few days later, GMAC filed a Supplemental Report of Settlement Conference Results and Motion to Proceed with Foreclosure. Id. at 46. GMAC’s report advised the court

that a telephonic Settlement Conference was held on June 24, 2010, in which Plaintiff, by counsel, and Defendant, Ronald Glenn Dyer individually and by counsel, appeared. The parties hereto attempted to negotiate a Deed-In-Lieu of foreclosure, however an agreement was never reached on the terms.
Therefore, the Settlement Conference has resulted in no agreement or resolution and Plaintiff moves the Court for permission to proceed with the foreclosure action.

Id.

The trial court held a telephonic conference to address the motions and granted Dyer’s request for leave to supplement his answer. Id. at vi (CCS). The court gave GMAC a deadline to respond. Id.

On the deadline, GMAC filed its response to Dyer’s request for leave to supplement its answer and request for declaratory judgment. Id. at 86. In its response, GMAC alleged that contrary to Dyer’s allegations, it had “complied with all applicable HUD regulations” and therefore GMAC “should not be compelled to reform their Deed in Lieu Agreement for the Defendant.” Id. GMAC asked the court to enforce the agreement the parties had already reached:

In his Request for Declaratory Judgment, Defendant requests that this Court order the Plaintiff to add language to their Deed in Lieu Agreement stating that the Plaintiff has released Defendant from personal liability. Because the requested language is repetitive and unnecessary, Plaintiff requests that this Court deny the Defendant’s Request, and allow the Plaintiff and Defendant to proceed unth the agreed-upon resolution of this case.

Id. (emphasis added) (footnote omitted); see also id. at 39 (“Plaintiff prays that the Court find the Defendant’s Request for Declaratory Judgment unpersuasive and allow the deed in lieu process to advance-”).

On April 15, 2011, Dyer filed a motion for judgment on the pleadings pursuant to Indiana Trial Rule 12(C). The trial court granted Dyer’s motion four days later. The order provides:

The Court, having considered the same, now grants the Defendant’s Motion, and declares:
1. The Plaintiff has not complied with HUD’s deed in lieu loss mitigation requirements.
2. The deed in lieu agreement is a release from all personal liability of Defendant in connection with the Note and Mortgage at issue.

The Court orders the Plaintiff:

1. [WJithin thirty (80) days of this Order, to deliver to Defendant’s counsel the Deed in Lieu documents and include in the Deed in Lieu Agreement the following additional language:
Upon execution and delivery by Mortgagor to GMAC Mortgage, LLC of the documents referenced herein, the Mortgagor is released from all personal liability in connection with the Note and Mortgage.
2. Within fifteen (15) days of receipt of the Deed in Lieu documents executed by Defendant, Plaintiff shall deliver to Defendant’s counsel:
a. fully executed copies of the Deed in Lieu documents, and
b. a certified, file-stamped copy of the deed indicating its recordation with the Greene County Recorder’s Office.

Id. at 24-25. Although the trial court’s order does not say, the CCS entry explains that the trial court treated Dyer’s motion for judgment on the pleadings as a motion for summary judgment. Id. at vi.

Apparently unaware that the trial court had already ruled, see Appellant’s Amended Br. p. 7, GMAC filed a response to Dyer’s motion for judgment on the pleadings two weeks later.

GMAC filed a motion to correct error, which the trial court denied. GMAC now appeals.

Discussion and Decision

GMAC contends that the trial court improperly granted Dyer’s motion for judgment on the pleadings. As indicated above, however, the trial court treated Dyer’s motion as one for summary judgment. See Ind. Trial Rule 12(C) (“If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56....”). We thus apply the summary judgment standard of review.

When reviewing the entry or denial of summary judgment, our standard of review is the same as that of the trial court: summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269 (Ind.2009). All facts established by the designated evidence, and all reasonable inferences from them, are to be construed in favor of the nonmoving party. Naugle v. Beech Grove City Sch., 864 N.E.2d 1058, 1062 (Ind.2007).

The facts are not in dispute. Importantly, the record shows that Dyer and GMAC agree upon several things. First, Dyer and GMAC agree that they decided to proceed with a deed in lieu of foreclosure at the settlement conference. See Appellant’s Reply Br. p. 5 (“The record before the trial court is clear; the parties attended a settlement conference and agreed to allow a deed in lieu of foreclosure on the property.”); Appellee’s Br. p. 8 (“The parties agreed to resolve this foreclosure by the FHA loss mitigation option known as deed in lieu of foreclosure.... ”). Second, both parties agree that a deficiency judgment cannot be sought against Dyer. Third, both parties agree that Dyer may not be held personally liable for any deficiency. Finally, both parties agree that the deed in lieu of foreclosure agreement must comply with federal law and HUD regulations. Their point of contention is the exact language that must be included in the deed in lieu of foreclosure agreement and whether the language used accomplishes their joint purpose of ensuring that Dyer is not held personally liable for any deficiency. Accordingly, we must determine whether GMAC’s deed in lieu of foreclosure agreement precludes personal liability of Dyer under federal law and HUD regulations. The trial court agreed with Dyer, but we agree with GMAC.

Federal law provides protection to defaulting borrowers with FHA-insured loans with HUD’s Loss Mitigation Program. 12 U.S.C.A. § 1715u(a) (Supp.2011) provides that upon default or imminent default, “mortgagees shall engage in loss mitigation actions for the purpose of providing an alternative to foreclosure (including but not limited to actions such as ... deeds in lieu of foreclosure.... ”). In addition, 24 C.F.R. § 203.501 (2011) provides that “[m]ortgagees must consider the comparative effects of them elective servicing actions, and must take those appropriate actions which can reasonably be expected to generate the smallest financial loss to the Department. Such actions include, but are not limited to, deeds in lieu of foreclosure under § 203.857....” 24 C.F.R. § 203.357 (2011), in turn, sets forth the requirements for a deed in lieu of foreclosure:

(a) Mortgagors owning one property. In lieu of instituting or completing a foreclosure, the mortgagee may acquire property from one other than a corporate mortgagor by voluntary conveyance from the mortgagor who certifies that he does not own any other property subject to a mortgage insured or held by FHA. Conveyance of the property by deed in lieu of foreclosure is approved subject to the following requirements:
(1) The mortgage is in default at the time the deed is executed and delivered;
(2) The credit instrument is cancelled and surrendered to the mortgagor;
(3) The mortgage is satisfied of record as a part of the consideration for such conveyance;
(4) The deed from the mortgagor contains a covenant which warrants against the acts of the grantor and all claiming by, through, or under him and conveys good marketable title;
(5)The mortgagee transfers to the Commissioner good marketable title accompanied by satisfactory title evidence.

According to HUD, “The Deed-in-Lieu of Foreclosure allows a mortgagor in default, who does not qualify for any other HUD Loss Mitigation option, to sign the house back over to the mortgage company. Ref: Mortgagee Letters 2000-05 and 2002-13.” U.S. Department of Housing and Urban Development, Deed-viv-Lieu of Foreclosure Option, http://portal.hud.gov/ fha/sf/svc/faqdilfact;pdf. The specific requirements include an “[acknowledgment that mortgagor(s) who complies with all of the requirements of the Agreement shall not be pursued for deficiency judgments.” Id. As noted above, this document references Mortgagee Letter 00-05, which HUD issued on January 19, 2000. The purpose of Mortgagee Letter 00-05 “is to announce clarifications of policy and procedural changes in FHA’s Loss Mitigation Program and provide an updated consolidation of the existing program guidance.” U.S. Department of Housing and Urban Development, Mortgagee Letter 00-05 (Jan. 19, 2000), http://portal.hud.gov/ hudportal/HUD?src=/program_offices/ housing/sfh/nsc/lmmltrs (follow 00-05 hyperlink). This letter provides:

Deed-in-lieu of foreclosure (DIL) is a disposition option in which a borrower voluntarily deeds collateral property to HUD in exchange for a release from all obligations under the mortgage. Though this option results in the borrower losing the property, it is usually preferable to foreclosure because the borrower mitigates the cost and emotional trauma of foreclosure and is eligible to receive borrower’s consideration of $500.[] Also, a DIL is generally less damaging than foreclosure to a borrower’s ability to obtain credit in the future. DIL is preferred by HUD because it avoids the time and expense of a legal foreclosure action, and due to the cooperative nature of the transaction, the property is generally in better physical condition at acquisition.

Id. at 35 (emphasis added). In addition, the letter explains that the lender and mortgagor must execute a written deed in lieu of foreclosure agreement that contains all of the conditions under which the deed will be accepted, including an “[acknowledgment that borrowers who comply with all of the requirements of the agreement shall not be pursued for deficiency judgments.” Id. at 37.

HUD regulations are clear: a deed in lieu of foreclosure releases the borrower from all obligations under the mortgage and the deed in lieu of foreclosure written agreement must contain an acknowledgement that the borrower shall not be pursued for deficiency judgments. GMAC’s proposed agreement contains the precise language required by HUD. Accordingly, GMAC’s proposed agreement releases Dyer from all obligations under the mortgage. See Mortgagee Letter 00-05 at 35 (“Deed-in-lieu of foreclosure (DIL) is a disposition option in which a borrower voluntarily deeds collateral property to HUD in exchange for a release from all obligations under the mortgage.” (emphasis added)). Further, a deed in lieu of foreclosure alone releases Dyer from all obligations under the mortgage. This is in line with hornbook law, which explains that a deed in lieu of foreclosure allows “default without incurring personal liability on the note.” 4 Powell on Real Property § 37.44[1],

Nevertheless, Dyer relies on a single federal district court opinion from 1999, Ingram v. Cuomo, 51 F.Supp.2d 667 (M.D.N.C.1999), as support that the “shall not be pursued for deficiency judgments” language is not protective enough because HUD may be able to intercept any future tax refund due to Dyer, even without a deficiency judgment, pursuant to the Deficit Reduction Act of 1984. We first note that Ingram came before Mortgagee Letter 00-05. Moreover, Ingram does not apply to the facts in this case. In Ingram, the borrower defaulted on her FHA-insured loan, the home was sold at a loss, and HUD sent the borrower notice that it intended to intercept any tax refund due to her in order to satisfy the balance owed. Id. at 669. In this case, however, Dyer and GMAC avoided foreclosure by agreeing to proceed with a deed in lieu of foreclosure. This type of agreement clearly provides that the borrower cannot be pursued for deficiency judgments. Accordingly, Ingram does not impact the language that must be included in a deed in lieu of foreclosure agreement.

Because GMAC’s proposed deed in lieu of foreclosure agreement releases Dyer from all personal liability and complies with HUD regulations, we reverse the trial court’s summary judgment order that GMAC did not comply with HUD regulations and therefore must revise the agreement. As a result, the parties shall proceed with the deed in lieu of foreclosure agreement as proposed by GMAC.

Reversed and remanded.

NAJAM, J., concurs.

ROBB, C.J., concurs in part, dissents in part with separate opinion.

ROBB, Chief Judge,

concurring in part, dissenting in part.

I concur in the majority’s determination that a deed in lieu of foreclosure releases a borrower from any obligation under a mortgage pursuant to federal law and HUD regulations. However, I respectfully dissent from the majority’s resolution of the case.

The majority laid out several facts that are not in dispute. Both parties agree they decided to pursue a deed in lieu of foreclosure after attending a settlement conference, a deficiency judgment cannot be sought against Dyer, Dyer cannot be held personally liable, and the deed in lieu of foreclosure must comply with federal law and HUD regulations. See Op. at 767-68. At issue is Dyer’s request to have a provision in the deed in lieu of foreclosure agreement stating he is released from personal liability. GMAC contends the provision it included in its draft of the agreement stating neither GMAC nor HUD will pursue a deficiency judgment from Dyer is sufficient.

Although I find no reason to disagree with the majority that a deed in lieu of foreclosure releases a borrower from liability as a matter of law, what would be the harm in including Dyer’s requested provision? If a deed in lieu of foreclosure does in fact release a mortgagor from personal liability and if everyone agrees Dyer should be released from personal liability, the requested provision would only clarify this reality. HUD regulations do not prohibit parties adding language in addition to what is required, and Dyer is not attempting to remove a provision required by HUD. For these reasons, I would affirm the trial court’s grant of summary judgment requiring a revision of the agreement to include Dyer’s requested provision. In all other respects, I concur with the majority.

      . The record shows that Dyer’s wife passed away on November 19, 2009.

      . The Indiana Supreme Court has provided a great resource for help with mortgage foreclosures, settlement conferences, and deeds in lieu of foreclosure. See Indiana Supreme Court, Help with Mortgage Foreclosures, http:// www.in.gov/judiciary/self-service/2359/htm (last visited Mar. 2, 2012). Specifically,
      A settlement conference is a face-to-face meeting with your lender's representative. It is your last chance to work out a deal with your lender before a foreclosure takes place. If a foreclosure takes place, you will lose your home and your credit rating will be damaged. However, a settlement conference is not a guaranteed workout between you and your lender!

        Id.

      .According to our Supreme Court’s website, borrowers who do not want to keep their home may pursue a deed in lieu of foreclosure. A deed in lieu of foreclosure allows:
      • Giving the home back to the lender; owner is allowed to walk away from the home with permission of the lender
      • Helps avoid damage to credit caused by foreclosure/bankruptcy.

        See supra note 2.

      . We actually refer to Appellant's Amended Appendix, but for the sake of simplicity we cite it as “Appellant’s App.”

      . GMAC did not number the CCS included at the beginning of its Appendix. It started using roman numerals but stopped at iii. We use the corresponding roman numeral as if the numbering had continued.

      . The record is also clear that the parties asked the trial court to enforce their deed in lieu of foreclosure agreement. See Appellant’s App. p. 36 ("Because the requested language is repetitive and unnecessary, Plaintiff requests that this Court deny the Defendant’s Request, and allow the Plaintiff and Defendant to proceed with the agreed-upon resolution of this case."), 39 ("Plaintiff prays that the Court find the Defendant's Request for Declaratory Judgment unpersuasive and allow the deed in lieu process to advance as the Plaintiff has fully complied with all HUD regulations and has graciously offered the Defendant a more favorable solution to its default than the Plaintiff’s contractual right of foreclosure.”) (emphases added). And both parties address motions to enforce settlement agreements on appeal. Even if we addressed this case as a motion to enforcement a settlement agreement, our result would be the same.

      . This amount has since been increased to $2000.

      . It is worth noting, however, that GMAC chose to litigate against Dyer’s requested provision rather than merely agreeing to its addition to the agreement. While GMAC certainly had the right to respond to Dyer’s request for declaratory judgment and argue its drafted agreement was sufficient, this route would almost certainly be less cost-effective. If GMAC truly intends to not hold Dyer personally liable in any manner, this extra cost would serve no purpose.


author: BAKER, Judge.

text:
    STATE of Indiana, Appellant-Plaintiff, v. Mershaun SCOTT, Appellee-Defendant.
    No. 36A04-1108-CR-419.
    Court of Appeals of Indiana.
    March 1, 2012.
    Ordered Published March 16, 2012.

      Gregory F. Zoeller, Attorney General of Indiana, Gary R. Rom, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
    Brooke N. Russell, Indianapolis, IN, Attorney for Appellee.
   OPINION

BAKER, Judge.

Appellant-plaintiff State of Indiana (State) appeals the trial court’s grant of appellee-defendant Mershaun W. Scott’s motion to suppress. The State argues that the police officer at the scene had the requisite reasonable suspicion to approach Scott and later arrest him after smelling burnt marijuana in the vehicle. As a result, the State maintains that none of the police officer’s actions violated Scott’s rights under either the Fourth Amendment to the United States Constitution (Fourth Amendment) or Article 1, Section 11 of the Indiana Constitution.

We concur with the trial court’s conclusion that the police officer violated Scott’s right to be free from unreasonable search and seizure under the Fourth Amendment when the police officer detained Scott and retained Scott’s driver’s license for an unreasonable period of time without any reasonable suspicion that Scott had committed a criminal offense. The record also supports the conclusion that Scott was seized and was not free to leave during the encounter with the police officer. Thus, we affirm the trial court’s grant of Scott’s motion to suppress.

FACTS

On April 27, 2010, at approximately 9:00 a.m., Indiana State Trooper Randell Miller was parked in a median near mile marker 54 on Interstate 65 (1-65) observing southbound traffic. At some point, Trooper Miller clocked the driver of a BMW with a Tennessee license plate at fifty-six miles per hour in a seventy-mile-per-hour zone.

As the BMW approached, Trooper Miller observed the driver, who was later identified as Scott, a black male, slow the vehicle to fifty miles per hour. Trooper Miller also thought that Scott was trying to “hide behind the pillar of the vehicle.” Appellant’s App. p. 16. Trooper Miller began following Scott and saw him drive to a McDonald’s Restaurant. Trooper Miller waited at a nearby Circle K gas station and watched Scott proceed to the McDonald’s drive-thru window.

Scott then drove to the Circle K to eat his food and purchase some cigarettes and gasoline. When Scott returned to his vehicle, he telephoned his grandfather. At some point, Scott began pumping gas and Trooper Miller approached him. Trooper Miller had been watching Scott for nearly fifteen minutes before walking up to him.

Trooper Miller asked Scott if “everything was ok,” because he had seen him driving fifty miles per hour on 1-65. Appellant’s App. p. 16. Trooper Miller also asked Scott if he had been wearing his seatbelt. Scott responded that his tires were bald and was trying to be careful. Ex. 1; Ex. 2. Trooper Miller then asked Scott what he did for a living and inquired as to whether he had a “good license.” Ex. 2. At Trooper Miller’s request, Scott handed him his Illinois driver’s license. While holding the license, Trooper Miller asked Scott more questions and told him that he would be “good to go,” if his license “checked out normally.” Ex. 2. However, prior to performing a computer check on his license, Trooper Miller continued to question Scott about the year of his vehicle, the cost of it, and asked what he did for a living.

Scott eventually opened the door to his vehicle and retrieved his registration. At some point, Trooper Miller smelled the odor of burnt marijuana. Trooper Miller then asked Scott to accompany him to his squad car. Once inside, Trooper Miller read Scott his Miranda rights. Scott told Trooper Miller that his brother had borrowed the vehicle and claimed that there was no marijuana inside. Trooper Miller then called for a canine unit after Scott refused consent to a search his vehicle. Trooper Miller also noticed that Scott had a “green-filmy” tongue that commonly occurs when a person smokes marijuana. The canine alerted to the presence of drugs after performing a “sweep” of the vehicle. The officers subsequently discovered a small quantity of marijuana inside the vehicle. Ex. 1, p. 15,19.

Scott then told the officers that there was a handgun inside the trunk of the vehicle. A portion of the serial number was obliterated, and Scott claimed that he purchased the weapon at a gun show, and that he had wrapped tape on the gun to keep a loose screw in place. Scott also admitted to the police officers that he was on his way to deliver the marijuana to his girlfriend in Tennessee.

On May 18, 2010, the State charged Scott with possession of an altered handgun, a class C felony, and possession of marijuana, a class A misdemeanor. Thereafter, on March 8, 2011, Scott filed a motion to suppress all evidence that was seized from the vehicle and the statements that Scott had made to the police officers. Scott argued that he did not commit any illegal behavior and, therefore, Trooper Miller did not have grounds to stop him. Thus, Scott claimed that the warrantless stop and subsequent search could not be justified as a valid exception to the Fourth Amendment’s search warrant requirement. Scott also claimed that the search was illegal under Article 1, Section 11 of the Indiana Constitution. Following a hearing on July 20, 2011, the trial court granted Scott’s motion to suppress. The State now appeals.

DISCUSSION AND DECISION

I. Standard of Review

We review a trial court’s decision to grant a motion to suppress similar to other sufficiency of the evidence matters. State v. Lucas, 859 N.E.2d 1244, 1248 (Ind.Ct. App.2007). When conducting such a review, we will not reweigh evidence or judge witness credibility. State v. Moriarity, 832 N.E.2d 555, 558 (Ind.Ct.App.2005). In such cases, the State is appealing from a negative judgment and must show that the trial court’s ruling on the motion to suppress was contrary to law. State v. Estep, 753 N.E.2d 22, 24-25 (Ind.Ct.App. 2001). We will reverse a negative judgment only when the evidence is without conflict and all reasonable inferences lead to a conclusion opposite that of the trial court. Id. at 25.

II. The State’s Contentions

The State contends that the trial court erred in granting Scott’s motion to suppress because the encounter between Scott and Trooper Miller was consensual. Thus, the Fourth Amendment was not implicated and no seizure occurred until after Trooper Miller smelled the marijuana, which amounted to probable cause to arrest Scott. As a result, the State argues that Trooper Miller did not violate Scott’s right to be free from unreasonable search and seizure.

The Fourth Amendment to the United States Constitution protects the privacy and possessory interests of individuals by prohibiting unreasonable searches and seizures. Berry v. State, 704 N.E.2d 462, 464 (Ind.1998). Fourth Amendment protections apply when a person has an actual subjective expectation of privacy and the expectation is one that society is prepared to recognize as reasonable. Alexander v. State, 947 N.E.2d 966, 967 (Ind.Ct.App.2011).

In general, an officer’s approach and questioning of an individual that does not involve a detention in a public place is outside the purview of the Fourth Amendment. However, the Fourth Amendment is triggered when there is a show of authority such that a reasonable person would have believed he was not free to leave. United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). In other words, the Fourth Amendment is not implicated unless the encounter “loses its consensual nature.” Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). And a seizure does not occur “simply because a police officer approaches an individual and asks a few questions,” so long as “a reasonable person would feel free to disregard the police and go about his business.” Id. at 434, 111 S.Ct. 2382. However, a full-blown arrest or a detention that lasts for more than a short period of time must be justified by probable cause. Finger v. State, 799 N.E.2d 528, 532 (Ind.2003).

A consensual encounter occurs when a police officer makes a casual and brief inquiry of a citizen, which involves neither an arrest nor a stop. Overstreet v. State, 724 N.E.2d 661, 663 (Ind.Ct.App. 2000). As long as the individual remains free to leave, under all the circumstances, the encounter is consensual and there has been no violation of the individual’s Fourth Amendment rights. Shirley v. State, 803 N.E.2d 251, 255 (Ind.Ct.App.2004).

[8,9] The test for whether such a reasonable impression existed is what a reasonable persor, innocent of any crime, would have thought had he been in the citizen’s shoes State v. Calmes, 894 N.E.2d 199, 205 (Ind.Ct.App.2008). The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation. Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988).

Interrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a seizure under the Fourth Amendment. Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). However, several courts have determined that a consensual encounter between a police officer becomes a detention when the officer retains the defendant’s license longer than what wou d be reasonably necessary to review the Icense or the officer makes further investigative inquiries while possessing the license, thus indicating that compliance with the police officer’s request might be compelled. See United States v. Lambert, 46 F.3d 1064 (10th Cir. 1995) (observing that a police officer’s undue retention of an individual’s driver’s license during a traffic stop renders the encounter nonconsensual); United States v. Thompson, 712 F.2d 1356 (11th Cir. 1983) (police officer's retention of the defendant’s driver's license rendered a consensual encounter an investigative stop because the defendant was effectively immobilized without his license); U.S. v. Guerrero, 472 F.3d 784 (10th Cir.2007) (observing that a police officer’s taking possession of the defendant’s driver’s license changed the encounter to an investigative detention).

To further illustrate, in Finger, our Supreme Court held that when a police officer retains an individual’s driver’s license, that person is considered detained for purposes of the Fourth Amendment. The evidence in Finger demonstrated that a police officer parked behind the defendant’s vehicle, activated his emergency lights, and proceeded to ask a few questions, including whether Finger needed assistance. These are factors that when “taken together, would not lead a reasonable person to feel that he was not free to leave.” Finger, 799 N.E.2d at 533. Rather, the consensual encounter “evolved into an investigative stop” when the police officer did not return the driver’s identification to him after completing the license check. And instead of returning the license, the police officer continued conversing with Finger and asking incriminating questions. Id. Thus, Finger was detained for purposes of the Fourth Amendment. See also Calmes, 894 N.E.2d at 205 (observing that an individual in the defendant’s position would not feel free to leave when one police officer obtained the defendant’s driver’s license to run a computer check, while another officer continued to question the defendant).

Notwithstanding the determination that the police officer’s act of retaining the defendant’s driver’s license amounted to a detention and seizure in Finger, it was also observed that at the time of the detention, the police officer relied on the following facts:

(1) Finger’s car was reported as ... “suspicious”; (2) although Finger claimed the car was out of fuel, and someone had gone for gasoline, a gas station was around .the corner and the fuel gauge indicated that there was one eighth of a tank of fuel remaining in the car; (3) Finger told other inconsistent stories during his conversation with [the police officer]; (4) there was a folded pocketknife in the car; and (5) Finger and his passenger were “acting nervous.”

Id. at 534. The officer also had received a report that a robbery had been committed approximately one block from the stop. Thus, it was ultimately determined that these factors rendered the detention reasonable and, therefore, the trial court properly denied Finger’s motion to suppress. Id. at 535.

In this case, Trooper Miller did not observe Scott commit a criminal offense and Scott was not issued a ticket for any traffic violation. Rather, Trooper Miller decided to follow Scott after he saw him exit on to U.S. 50. Ex. 1, p. 8-9. Although it is not clear precisely how long Trooper Miller waited at the Circle K gas station, it was at least thirteen minutes before he approached Scott. Ex. 2.

During the initial conversation, Trooper Miller articulated some driving behaviors to Scott that he thought were suspicious. And before asking Scott for his driver’s license, Trooper Miller suggested that Scott had engaged in illegal behavior. Once Trooper Miller, who was standing between Scott and his vehicle, indicated that he had been following Scott, we cannot say that Scott would have believed that he was free to leave.

Moreover, even assuming that the encounter may have been consensual when Trooper Miller initially approached and talked to Scott, it is readily apparent that Scott was not free to leave when Miller asked for — and retained — Scott’s driver’s license. Finger, 799 N.E.2d at 533. Trooper Miller retained Scott’s driver’s license while asking him questions. And while holding the license, Miller continued to question Scott and ask him about the year of his vehicle as he walked around the car. Ex. 1, p. 11-12. And, while Trooper Miller told Scott that he would be “good to go” after he performed a computer verification of his license, Trooper Miller did not check Scott’s license until well after the encounter had commenced.

We also note that Scott did not reside in Indiana, had no friends or family in the area, and had never before stopped in Jackson County. Tr. p. 5-6. In short, there was no one that Scott could contact to pick him up and he was totally reliant on his vehicle. Scott needed his driver’s license to continue the trip; otherwise, he would be in violation of Indiana law.

Although the State seems to suggest that Trooper Miller could examine and retain Scott’s license for an indefinite period to complete his task of performing the computer check, Finger does not permit such conduct. Moreover, Trooper Miller had no reason to believe that Scott was not forthcoming with him about the status of his license. At the point that Trooper Miller asked Scott for his license, Scott had been completely cooperative with Miller. Moreover, Trooper Miller could have performed a check on his license plate that was plainly visible to determine whether the registered owner of the vehicle had a validly issued driver’s license. However, Trooper Miller chose not to run the license plate during the numerous miles that he followed Scott.

Trooper Miller retained Scott’s license much longer than what it would take to examine the license and perform a computer verification. And, as discussed above, even if Scott wanted to terminate the encounter because he had already answered Trooper Miller’s questions, he could not do so while Trooper Miller retained his license.

We reject the State’s contention that Trooper Miller was merely engaging Scott in conversation that Scott could terminate at any point and leave the scene. In our view, this case is markedly different from the typical civilian encounter where an individual would feel free to leave. Indeed, Trooper Miller, who was armed and in full uniform, took the conversation beyond a seemingly consensual encounter by immediately admitting to following Scott for a number of miles, stopping him, pointing out problems with Scott’s driving behavior, asking about illegal behavior, and asking for Scott’s driver’s license and retaining it for no apparent reason. Ex. 2. All of these circumstances suggest that Scott was obligated to remain at the scene and answer Trooper Miller’s questions.

As in Finger, the seemingly initial consensual encounter between Trooper Miller and Scott became a detention and seizure in violation of the Fourth Amendment when Trooper Miller retained Scott’s driver’s license. As a result, Scott’s act of opening his car door to obtain his registration was not voluntary. Rather, that act was in apparent response to Trooper Miller’s retention of the driver’s license and continuing interrogation. As a result, we conclude that the trial court did not err in granting Scott’s motion to suppress.

The judgment of the trial court is affirmed.

DARDEN, J., and BAILEY, J., concur.

      . Ind.Code § 9-24 — 13-3 provides that "an individual holding a permit or license issued under this article must have the permit or license in the individual’s immediate possession when driving or operating a motor vehi-ele. The permittee or licensee shall display the license or permit upon demand of a court or a police officer authorized by law to enforce motor vehicle rules.”

      . Because we have concluded that Scott’s rights were violated under the Fourth Amendment, we need not address Scott's alternative contention that Trooper Miller’s actions also violated Scott’s right to be free from unreasonable search and seizure under Article 1, Section 11 of the Indiana Constitution.