author: FRIEDLANDER, Judge.

text:
    Michael A. LANE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 82A05-1212-CR-640.
    Court of Appeals of Indiana.
    Oct. 25, 2013.

      Matthew J. McGovern, Anderson, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Katherine M. Cooper, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

FRIEDLANDER, Judge.

Michael A. Lane appeals his convictions for Murder, class B felony Conspiracy to Commit Dealing in a Schedule II Controlled Substance, and two counts of class C felony Criminal Recklessness. He presents the following restated issues for review:

1. Did the trial court abuse its discretion by rejecting Lane’s tendered jury instruction on reckless homicide as a lesser included offense of murder?
2. Did the trial court abuse its discretion by admitting certain hearsay evidence after concluding that Lane had opened the door to this previously excluded evidence?
We affirm.

On January 5, 2010, Jason Derrington arranged a drug deal between Michael Hooper and David Clark, in which Clark was to purchase $5000 worth of Oxyeontin from Hooper. Hooper was Derrington’s friend, and Derrington had facilitated a number of drug deals between Hooper and Clark in the past. At some point that day, Clark informed Derrington that he was unavailable and would be sending money for the transaction with Lane, whom Der-rington knew as “Little Mike”. Derrington had met Lane several times before through Clark and felt comfortable with the last-minute change. Clark instructed Derrington to meet Lane in the back parking lot of the Sunburst Apartments in Evansville.

Derrington went to Hooper’s residence that evening and informed him of the change in plans. Hooper did not know Lane, so he decided to stop first at the home of Frank Hurst, Hooper’s cousin. Hooper asked Hurst to give them a ride, and Hurst agreed. Hurst had one handgun on his person and one in the glove box of his car. He had permits for both weapons. Hurst apparently did not know Der-rington or Lane and was allegedly unaware that he was driving Derrington and Hooper to a drug deal. Hooper sat in the front passenger seat of Hurst’s vehicle, and Derrington sat directly behind Hurst.

The group arrived at the parking lot before 8:00 that evening and sat in the car while Derrington texted and made phone calls. After several minutes, Hooper asked Derrington, “where’s he at”, and Derrington responded, “he’s coming”. Transcript at 425, 426. At some point after 8:00, Lane got into the vehicle and sat in the back seat next to Derrington and behind Hooper. Hooper passed a bottle of Oxycontin to Lane, and Lane handed a Crown Royal bag filled with money to Derrington. Hooper directed Derrington to count the money. As Derrington began counting some of the money from the bag, he heard Lane’s door open and saw the bag of remaining money move. Derring-ton grabbed the bag back but then realized that Lane had a gun. Lane started shooting as he exited the car. He first shot Derrington in the leg and then shot Hooper in the back near his right armpit as Hooper had his hands in the air. Lane shot Hooper at close range, with the shot coming from inside the car likely between the front passenger seat and the door frame. Neither Derrington nor Hooper were armed.

After the first two shots, Derrington fled from the car and Hurst retrieved his .38 caliber revolver from the glove box and fired four shots. At that point, Lane was standing outside and firing into the car. Lane shot Hurst in the chest during the crossfire. Lane also went around the back of the vehicle and shot at Derrington as he fled. Derrington was struck in the back by one of Lane’s shots, which caused immediate and permanent paralysis. Lane then fled the scene. At some point, Hooper and Hurst also exited the car, but Hurst reentered and placed his revolver back in the glove box.

Evansville police received the first dispatch call at 8:24. Upon arriving at the scene, officers found Hooper dead or near death behind Hurst’s car, Derrington seriously injured on the ground near the driver’s door, and Hurst injured in the driver’s seat. There was also $4000 in cash strewn in the backseat and floorboard, along with a Crown Royal bag. Hurst immediately informed officers that he was armed. Both Hurst and Derrington identified the shooter as “Little Mike”. Derrington also indicated that he had Little Mike’s phone number in his cell phone. After securing the scene, officers discovered that this number was 812-454-7192, which was Lane’s number. Within an hour of the shooting, Derrington was presented with three photo arrays. Derrington, without hesitation, identified Lane from the third photo array. At the hospital, Hurst also identified Lane as the shooter but then expressed some brief hesitation. The following day, January 6, 2010, the State filed charges against Lane for murder, felony murder, two counts of attempted murder, and conspiracy to deal in a schedule II controlled substance.

Lane evaded capture until October 2011, when he was arrested in Chicago on the outstanding warrant. Detective Brent Melton traveled with two other officers to pick up Lane in Chicago. Melton read Lane his Miranda rights before transporting him back to Evansville. While talking with Melton on the drive back to Evansville, Lane adamantly stated that the money he brought to the scene was his own money, not David Clark’s.

Lane’s first jury trial commenced on August 7, 2012 but ended in a mistrial because only eleven jurors were selected following voir dire. The second trial commenced on October 8, 2012 and lasted five days. Among many other witnesses, Hurst and Derrington testified against Lane. The jury found Lane guilty of murder, two counts of criminal recklessness as a lesser-included offense of attempted murder, and conspiracy to commit murder. Before sentencing, Lane filed a motion for a new trial, arguing that the trial court abused its discretion when it refused his tendered lesser-included-offense instruction on reckless homicide. The trial court denied this motion and subsequently sentenced Lane to an aggregate sentence of fifty-five years in prison. Lane now appeals. Additional facts will be provided below as needed.

1.

Lane argues that the trial court abused its discretion by refusing to instruct the jury on reckless homicide as a lesser-included offense of murder. He claims a serious evidentiary dispute existed regarding his state of mind at the time of the shooting. Specifically, Lane argues that the evidence supported a reasonable inference that Hooper, Hurst, and Derrington ambushed Lane and that “Lane fired wildly in retreat to scare [them] away.” Appellant’s Brief at 9.

When considering instructions on lesser-included offenses, a court must first determine whether the lesser offense is either inherently or factually included within the crime charged. Young v. State, 699 N.E.2d 252 (Ind.1998). It is well established that reckless homicide is an inherently included lesser offense of murder. Id. Accordingly, the next step in the analysis of whether the instruction should be given is “whether the evidence provided by both parties creates a serious evidentiary dispute about the element or elements which distinguish the greater from the lesser offense.” Id. at 255.

When an instruction is refused on grounds that a serious evidentiary dispute does not exist, as in the instant case, we reverse only upon an abuse of discretion. Young v. State, 699 N.E.2d 252. “An abuse of discretion occurs when a decision is clearly against the logic and effect of the facts and circumstances before the court.” Turner v. State, 751 N.E.2d 726, 731 (Ind.Ct.App.2001), trans. denied.

The only difference between murder and reckless homicide is the mens rea the State must prove to obtain a conviction. Young v. State, 699 N.E.2d 252. Reckless homicide requires proof that he defendant acted recklessly, while murder requires knowing or intentional conduct. See I.C. § 35-42-1-5; I.C. § 35-42-1-1. Thus, the issue here is whether the evidence presented at trial by both parties created a serious evidentiary dispute about whether Lane knowingly or recklessly killed Hooper when he shot him in the back. The trial court answered this question in the negative, explaining:

the evidence in this case was that the shooter actually shot into the car, that there were three people in close proximity in that vehicle, I do not think there was any evidence to dispute the fact that whoever shot into that car did it in a knowing fashion and aware of what the consequences of that action would be[.]

Transcript at 773.

“A person engages in conduct ‘knowingly if, when he engages in the conduct, he is aware of a high probability that he is doing so.” I.C. § 35-41-2-2(b) (West, Westlaw current with all 2013 legislation). On the other hand, conduct is reckless if the actor engaged in said conduct “in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct.” I.C. § 35-41-2-2(c).

After a thorough review of the record, we conclude that the trial court did not abuse its discretion when it found no serious evidentiary dispute regarding whether Lane knowingly or recklessly shot Hooper. The evidence presented at trial reveals that Lane shot Derrington and then Hooper (both unarmed) while exiting the car after a botched drug transaction. Lane shot Hooper in the back as Hooper sat in the front passenger seat with his hands up. The location of the wound on Hooper’s body and the pathologist’s description of the bullet’s trajectory are consistent with Derrington’s testimony of how and where Hooper was shot. After Der-rington and Hooper were shot, Hurst returned fire and was then shot by Lane. The fact that Lane shot wildly in retreat once he was out of the vehicle and realized Hurst was firing back does not change the fact that he shot Hooper at close range in the back as he exited the car.

Further, although not dispositive, we observe that the theory of Lane’s defense was that he was not present on the night in question. In fact, defense counsel indicated on more than one occasion that “this case stands and falls on identification.” Transcript at 742. Lane failed to argue to the jury and presented no evidence that the shooter was ambushed by the alleged victims and shot only in an effort to get away as Hurst fired at him. While Lane makes this claim now on appeal, we cannot agree that the evidence presented below by both parties supports an inference that “Lane was ambushed by Derrington, Hurst, and Hooper, and that Lane fired wildly in retreat.” Appellant’s Brief at 15. While there are certainly minor inconsistencies in the evidence, the undisputed evidence indicates that Lane fired the first two shots into the car as he exited, striking two different victims. These shots were fired at close range. His second shot struck Hooper in the back as Hooper sat in the front seat with his arms up.

We agree with the trial court that the facts presented at trial do not create a serious evidentiary dispute as to whether Lane killed Hooper knowingly or recklessly. In other words, there is not a serious evidentiary dispute that Lane shot Hooper with anything less than an awareness of a high probability that he was engaged in killing.

The eases cited by Lane are distinguishable from the instant case. In Turner v. State, the defendant fired shots from a second-floor balcony after being challenged to a fight by a crowd below and seeing someone throw a bottle at his vehicle. There was contradictory evidence presented as to whether Turner was shooting at individuals or whether he was simply firing in the air and toward the ground to scare the crowd away. Turner himself testified that his intent was only to scare them away and that he was not trying to hit anyone. In light of the defendant’s testimony denying an intent to kill, our Supreme Court determined that a serious evidentiary dispute existed regarding his intent. Turner v. State, 751 N.E.2d 726. In the instant case, Lane did not testify or present other evidence of a contrary intent.

Young v. State, 699 N.E.2d 252, is similarly distinguishable. In that case, a crowd was outside a residence at dark watching two individuals wrestle, when a car went by with Young hanging out the passenger-side window with a gun. The car abruptly stopped and Young shouted several times to the crowd. He then told the driver to pull off as he fired two shots. One of the shots struck Korey Roney in the back of the head. Shortly thereafter, the car turned around and came back quickly. Everyone ran inside except Roney, who was on the ground. Young was seated on the passenger-side door with his arms extended over the car. He fired four more shots as the car passed. No one else was injured and several bullets struck a house immediately south of the house where Roney was shot.

Several of the witnesses at the scene testified that there had been no problems between Young and those in the front yard that night and some even indicated that he was a friend. No witness stated that Young appeared to be aiming his gun at any specific person, and one witness testified, “he was just shootin’... dude was pullin’ off, you know.” Id. at 256. In determining that a serious evidentiary dispute existed as to whether Young knowingly or recklessly killed Roney, our Supreme Court noted the lack of evidence regarding motive or intent to target a certain person. Further, the Court stated:

The evidence about Young’s state of mind at the time he fired the shot that killed Korey Roney is both conflicting and obscure.... Though shooting in the direction of numerous people only twenty feet away is obviously “reckless” behavior no matter whether one is in a set or moving position, whether [Young’s] acts are sufficient to show he was aware of a high probability that his act would kill is less certain.
While it is [his] mental state when he fired the shot which actually killed Ko-rey that would determine whether he committed murder or reckless homicide, a jury might glean inferences from the larger pattern of shots fired to determine this specific mens rea. Of the estimated six shots fired, one bullet his Korey ..., another was discovered rather far away in a wall of the home next door.... A crime scene specialist was unable to say whether the recovered bullets were fired [randomly] or specifically aimed. Also possibly relevant is the fact that [Young] returned and fired four more shots though all except Korey were inside the home. Korey was prone on the ground during this time but was not shot again.
A jury considering these facts could well have found [Young] was acting recklessly but not knowingly when he fired the shot that killed Korey. Firing a handgun towards a group of people only twenty feet away is certainly an act committed in “plain, conscious, and unjustifiable disregard” of the harm that might result, and a “substantial deviation from acceptable standards of conduct,” but given the specific facts of this case, a jury might reasonably decide that such behavior did not reflect a knowing killing.

Id. at 256-57 (citations omitted).

Contrary to Lane’s assertion on appeal, the facts of the instant case are not on par with those in Young. Here, the evidence established a clear motive for the shooting. Further, unlike in Young, the eyewitness testimony does not indicate that Lane was firing wildly and not targeting Hooper when he shot him in the back. On the contrary, the evidence indicates that Lane shot Hooper at close range as Lane was exiting the car. Lane also shot the other two individuals who were with Hooper that night. Although Lane’s shots apparently became dispersed after he shot Hooper, the evidence indicates this is because Hurst returned fire. On the specific facts of this case, a jury could not reasonably conclude that Lane acted recklessly but not knowingly when he fired the shot that killed Hooper. An instruction on reckless homicide was, therefore, not warranted.

2.

Lane contends that certain evidence was admitted in violation of his right to confront witnesses against him. He claims the trial court erroneously determined that he had opened the door to this evidence during cross-examination of the lead detective, Brent Melton.

During trial, evidence was admitted indicating that Derrington had made four calls with his cellphone to 678-372-6455 at 6:51, 8:10, 8:13, and 8:18 on the night of the shooting. The State did not initially seek to introduce evidence linking this phone number to a particular person, and the trial court denied a jury question seeking this information.

On cross-examination, defense counsel asked Detective Melton about inconsistencies in the testimonies of the victims and the lack of physical evidence from the scene linking Lane to the crime. Counsel also reviewed with the witness the evidence police had against Lane including the identifications by both surviving victims and the contact phone number listed for “Little Mike” in Derrington’s cellphone, with police tying both the nickname and the number (812 — 454—7192) to Lane. The cross-examination continued in part as follows:

Q And beyond that all of the evidence that was in the boxes and all the evidence that’s in the bags and all the evidence that’s been introduce[d], there’s nothing else that ties Michael Lane to this crime?
A The statement he made to me in the car on the way back from Chicago?
Q Assuming you got that statement correct....
A Yes.
Q That’s it?
A I believe so.

Transcript at 629.

During a subsequent sidebar, the State argued that Lane had opened the door to hearsay evidence linking the 678-372-6455 number to Lane. The State claimed the door was opened when the defense asked Detective Melton if there was nothing else that tied Lane to the crime. In fact, police had learned during an interview with Obie Davis (Lane’s cousin) that the 678 number was affiliated with Lane.

Following a brief recess, the trial court ruled in favor of the State as follows:

[Court:] I do believe that [defense counsel’s question] gives the impression to the jury that there’s nothing else that this Detective relied on to tie Mr. Lane to the crime and therefore I do think it’s opened the door to the evidence of the telephone number....
[Defense:] Well, with regard to the Court’s ruling, defendant’s position is that this is hearsay evidence, that the admission of said evidence violates Crawford in that the declarant is not available to be cross examined about the information that the officer is going to testify to, Mr. Davis isn’t here, apparently has never been under subpoena by the State....
* * *
[Court:] I do agree that there is, I had sustained a hearsay objection to this evidence previously, but under open the door and the cases that talk about opening the door does indicate that otherwise inadmissible evidence can be admissible if the door opens and I think that’s occurred in this case, so any other record?

Id. at 643-44.

On re-direct examination, the State elicited the following testimony:

Q Detective, you were asked a question that there was nothing else that tied Michael Lane to the crime, do you remember that question?
A Yes, sir.
Q That’s not actually true, is it?
A No.
Q Did you receive a phone number from Obie Davis for a contact number for Mr. Lane?
A Yes.
Q What was that number, sir?
A Ah, missed call from Lane, the cell number was 678-372-6455.
⅝ ⅜ ⅝
Q Do you recall Officer Sides testifying as to four phone numbers [sic] to that particular number from Jason Der-rington’s phone?
A Yes, I do.
Q Alright, and those calls were made at 6:51, 8:10, 8:13 and 8:18 on the night in question, is that correct?
A Yes.

Id. at 645-46.

We initially determine whether the admission of this hearsay evidence violated the Confrontation Clause, which is embodied in the Sixth Amendment to the United States Constitution. The clause prohibits the admission of an out-of-court statement if it is testimonial, the declarant is unavailable, and the defendant had no prior opportunity to cross-examine the declarant. King v. State, 985 N.E.2d 755 (Ind.Ct.App.2013), tram, denied. The only issue in this case is whether Davis’s statement to police regarding the phone number was testimonial.

To determine whether a statement such as this is testimonial, we look at the primary purpose of the conversation between police and the declarant. Id. If the circumstances indicate that the primary purpose of the conversation was to gather evidence of past events potentially relevant to later criminal prosecution, then the statements are testimonial and protected by the Confrontation Clause. King v. State, 985 N.E.2d 755.

The State argues that the statement given by Davis during police questioning was not testimonial because its “original purpose” was not to create a record for trial but to “assist police in identifying the person who committed the crimes against Hooper, Derrington, and Hurst.” Appellee’s Brief at 24. We cannot agree. The record indicates that Lane was the primary suspect within an hour or two of the shooting and well before Detective Melton interviewed Davis. The purpose of the interview was to gather evidence and to locate Lane. Further, there was no ongoing emergency when Davis was formally questioned several days after the shooting. The statement was clearly testimonial.

Despite the nature of this hearsay statement, the trial court found it admissible because Lane had opened the door. As a matter of modern evidence law, the trial court may well have been correct in determining that Lane opened the door to admission of this evidence. See Kubsch v. State, 784 N.E.2d 905 (Ind.2003). We must be mindful, however, that we are faced with a constitutional challenge to the admission of Davis’s testimonial statement rather than a challenge based on evidentia-ry rules.

Several other jurisdictions that have decided cases after Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), have applied the “open the door” rule in holding testimonial hearsay admissible where the defendant has opened the door to such evidence. See, e.g., United States v. Holmes, 620 F.3d 836 (8th Cir.2010); United States v. Lopez-Medina, 596 F.3d 716 (10th Cir.2010); People v. Rogers, 317 P.3d 1280, 2012 WL 5457358 (Col.Ct.App.2012); State v. Birth, 37 Kan.App.2d 753, 158 P.3d 345 (2007). At least one jurisdiction has concluded otherwise:

If there is one theme that emerges from Crawford, it is that the Confrontation Clause confers a powerful and fundamental right that is no longer subsumed by the evidentiary rules governing the admission of hearsay statements. Thus, the mere fact that Cromer may have opened the door to the testimonial, out-of-court statement that violated his confrontation right is not sufficient to erase that violation. In this, too, we agree with Professor Friedman, who has postulated that a defendant only forfeits his confrontation right if his own wrongful conduct is responsible for his inability to confront the witness. Friedman, Confrontation, 86 Geo. L.J. at 1031. If, for example, the witness is only unavailable to testify because the defendant has killed or intimidated her, then the defendant has forfeited his right to confront that witness. A foolish strategic decision does not rise to the level of such misconduct and so will not cause the defendant to forfeit his rights under the Confrontation Clause.

United States v. Cromer, 389 F.3d 662, 679 (6th Cir.2004).

We agree with the majority of jurisdictions that have found that a defendant can open the door to the admission of evidence otherwise barred by the Confrontation Clause. This waiver of rights, however, is not as broadly applied as in non-constitutional contexts due to the presumption against the waiver of constitutional rights. See United States v. Holmes, 620 F.3d 836. We hold that for a waiver of the fundamental constitutional right of confrontation to be effective, such waiver must be “clear and intentional.” Id. at 843 (“decision to waive ... must be done intentionally and for valid, tactical purposes”). See also United States v. Lopez-Medina, 596 F.3d at 731 (“[w]here, as here, defense counsel purposefully and explicitly opens the door on a particular (and otherwise inadmissible) line of questioning, such conduct operates as a limited waiver”). The standard is not met here, as there is no indication in the record that the alleged waiver was done intentionally. Accordingly, the trial court erred in concluding that Lane opened the door to admission of this testimonial statement.

Violations of the Confrontation Clause do not require reversal if the State can show beyond a reasonable doubt that the error was harmless and did not affect the verdict. Koenig v. State, 933 N.E.2d 1271 (Ind.2010). In other words, “an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Id. at 1273. When considering whether a constitutional error was harmless, we may consider, among other things:

the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted and, of course, the overall strength of the prosecution’s case.

Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674, (1986)). If the State presented other overwhelming evidence of the defendant’s guilt, then an erroneously admitted statement may be deemed harmless. See Rawley v. State, 724 N.E.2d 1087 (Ind.2000); Finney v. State, 786 N.E.2d 764 (Ind.Ct.App.2003).

We are confident that the brief testimonial hearsay evidence admitted through Detective Melton was harmless beyond a reasonable doubt. Although the evidence regarding the phone number tended to establish some link between Lane and the crime, this link had already been shown by other overwhelming evidence establishing that Lane came to the scene to transact a drug deal that ended badly. Derrington, who knew Lane prior to the shooting, identified Lane as the shooter while laying paralyzed at the scene, in a photo array at the hospital hours after the shooting, and at trial. The other surviving victim, Hurst, similarly identified Lane. Further, upon his arrest, Lane admitted to Detective Melton that the money he (Lane) brought to the scene was his own. Thousands of dollars, along with a Crown Royal bag, were also found in the back of the car.

In light of this overwhelming evidence placing Lane at the scene to complete a drug buy, the admission of additional evidence that, before the shooting, Derring-ton made calls to a phone number associated with Lane did not affect the verdict. The error was harmless beyond a reasonable doubt.

Judgment affirmed.

BAKER, J., and VAIDIK, J., concur.

      . Ind.Code Ann. § 35-42-1-1 (West, Westlaw current with all 2013 legislation).

      . Ind.Code Ann. § 35-48-4-2 (West, Westlaw current with all 2013 legislation); Ind.Code Ann. § 35-41-5-2 (West, Westlaw current with all 2013 legislation) (conspiracy).

      .I.C. § 35-42-2-2 (West, Westlaw current with all 2013 legislation).

      . The trajectory of the bullet travelled from above to below and from back to front. This bullet bounced around in Hooper’s body, eventually striking his liver and heart. In addition to this fatal gunshot wound, Hooper also had injuries to his scalp, forehead, and hand that were consistent with collapsing on hard pavement.

      . The bullets later removed from Hooper, Derrington, and Hurst were all fired from the same weapon. This weapon was never located.

      . Following the State's presentation of evidence, the trial court granted Lane's motion for a directed verdict on the felony murder charge because the State failed to allege a statutory predicate felony in the information to support this charge.

      . Lane also asserts that the record "clearly establishes that the jury thought the shooting was reckless.” Id. at 11. He claims this is so because the jury found him guilty for the shootings of Derrington and Hurst of only criminal recklessness, not attempted murder. This logic is misguided. First, we observe that the jury found Lane guilty of murder, which necessarily indicates that they found his mens rea to be knowing, at the least. Further, Lane’s argument ignores the fact that a conviction for attempted murder requires proof of a specific intent to kill, while a murder conviction requires only a knowing killing. See Henley v. State, 881 N.E.2d 639 (Ind.2008). Thus, the fact that the jury determined that Lane did not have the specific intent to kill Derrington and Hurst says nothing about whether he had a knowing mens rea with respect to the shooting of Hooper. Finally, Lane’s argument is premised on a belief that the crime of criminal recklessness applies to only reckless conduct, which it does not. I.C. § 35-42-2-2(b) indicates that criminal recklessness may involve reckless, knowing, or intentional conduct. In other words, in convicting him of criminal recklessness rather than attempted murder, the jury could have concluded that Lane knowingly shot Hooper but did not intend to kill him.

      . We do not consider whether Lane intentionally killed Hooper because the information alleged only that he knowingly killed Hooper.

      . Factors to be considered include:
      (1) whether the declarant was describing events "as they were actually happening” or past events; (2) whether the declarant was facing an ongoing emergency; (3) whether the nature of what was asked and answered was such that the elicited statements were necessary to be able to resolve the present emergency rather than simply to learn about past events; and (4) the level of formality of the interview.

        Id. at 758 (quoting State v. Martin, 885 N.E.2d 18, 20 (Ind.Ct.App.2008)).

      . Lane asserts that Derrington (as well as Hurst) had a profound motive to lie and that "the State presented very little evidence that placed Lane at the scene.” Appellant's Brief at 31. The record indicates that Derrington openly admitted that he facilitated the drug deal, as he had in the past. He did not shy away from implicating himself in criminal activity. Moreover, Lane does not explain why Derrington and Hurst would have had a motive to wrongly identify the man who shot them and their friend/cousin.


source: Caselaw Access Project

author: WENTWORTH, J.

license: Public Domain

text:
    ORBITZ, LLC, Petitioner, v. INDIANA DEPARTMENT OF STATE REVENUE, Respondent.
    No. 49T10-0903-TA-10.
    Tax Court of Indiana.
    Oct. 16, 2013.
    Larry J. Stroble, Randal J. Kaltenmark, Howard E. Kochell, Ziaaddin Mollabashy, Barnes & Thornburg LLP, Indianapolis, IN, Catherine A. Battin, Elizabeth B. Her-rington, Aron Frakes, Megan Thibert-Ind, Jeffrey A. Rossman, McDermott Will & Emery LLP, Chicago, IL, Attorneys for Petitioner.
    Gregory F. Zoeller, Attorney General of Indiana, Jessica E. Reagan, Thomas D. Cameron, Deputy Attorneys General, Indianapolis, IN, Attorneys for Respondent.
   ORDER ON PETITIONER’S VERIFIED REQUEST TO PROHIBIT PUBLIC ACCESS TO INFORMATION IN THE COURT RECORD

WENTWORTH, J.

This matter comes before the Court on Orbitz, LLC’s request to have certain documents within the judicial record placed under seal so they cannot be accessed by the general public. Being duly advised in the matter, the Court grants Orbitz’s request.

BACKGROUND

Orbitz, a Delaware corporation -with its principal place of business in Chicago, Illinois, is an online travel company. Through its website, www.orbitz.com, Or-bitz “provides travel related services enabling [its customers] to search for and make reservations for a broad array of travel products, including airline tickets, lodging, rental cars, cruises and vacation packages[.]” (Jt. Stip. Facts, Aug. 28, 2013 (“Jt. Stip.”), ¶ 1.) Between January 1, 2004 and December 31, 2006, Orbitz’s customers booked hotel rooms in Indiana through Orbitz’s website (“bookings at issue”).

In 2007, the Indiana Department of State Revenue completed an audit of Or-bitz. As a result of the audit, the Department determined that Orbitz had been deficient in remitting Indiana’s gross retail (sales) and county innkeeper taxes on the bookings at issue. Consequently, the Department issued proposed assessments against Orbitz. (See Jt. Stip., ¶¶ 15-24.)

On June 19, 2008, Orbitz protested the proposed assessments. After holding an administrative hearing, the Department, in two Letters of Findings dated November 24, 2008, denied Orbitz’s protest. Orbitz initiated this original tax appeal on March 3, 2009.

On August 2, 2013, Orbitz filed a motion for summary judgment and designated evidence in support thereof. That same day, Orbitz also sought an order from the Court prohibiting public access to information in the Court’s Record (“Request”). In the Request, Orbitz explained that its designated evidence included copies of contracts it had with three Indiana hotels. (See Pet’r V. Req. Order Prohibiting Pub. Access Info. Ct. R., Aug. 2, 2013 (“Pet’r Req.”), ¶ 4 (referring to Pet’r Des’g Evid. Supp. Mot. Summ. J., Ex. 10, Attachs. DF, Aug. 2, 2013).) See also supra, note 1. Asserting that these contracts were “proprietary, competitively sensitive, and contain [Orbitz] trade secrets and financial information,” Orbitz’s Request asked the Court

pursuant to Ind.Code § 5-14-3-5.5(c) and Admin. Rule 9(H), [to] hold a public hearing at which time [it] declare the [contracts] to be “confidential information” under Ind.Code § 5-14-3-4(a), by entering a protective order with respect to such confidential information, and an order that the record of proceedings in this matter be sealed with respect to such confidential information.

(Pet’r Req., ¶¶ 5, 8.)

The Court conducted a hearing on Or-bitz’s Request on September 17, 2013. During the hearing, the public was given the opportunity to comment on whether the contracts should be shielded from public access. Additional facts will be supplied when necessary.

LAW

The general rule in Indiana is that information submitted to state governmental entities, including the courts, is accessible by the public. Travelers Cas. & Sur. Co. v. U.S. Filter Corp., 895 N.E.2d 114, 115 (Ind.2008). To promote such accessibility, the Indiana General Assembly has enacted the Access to Public Records Act (APRA), Indiana Code § 5-14-3-1 et seq., which guarantees that “all persons are entitled to full and complete information regarding the affairs of [their] government.” Ind.Code § 5-14-3-1 (2013). Likewise, the Indiana Supreme Court has adopted Indiana Administrative Rule 9 to secure the public’s access to court records. See Ind. Administrative Rule 9(A) (footnote added).

Nonetheless, there are “ ‘public policy interests that are not always fully compatible with unrestricted access.’ ” Travelers, 895 N.E.2d at 115. Indeed, “unrestricted access to certain information ... could result in an unwarranted invasion of personal privacy or unduly increase the risk of injury to individuals and businesses.” Admin. R. 9(A) (Commentary). Accordingly, both APRA and Administrative Rule 9 set forth certain exceptions to the general rule of public access, trade secrets being one of them. See Ind.Code § 5-14-3-4(a)(4) (2013 (version c, eff. 7-1-2013)); Admin. R. 9(G)(1)(b); Bobrow v. Bobrow, 810 N.E.2d 726, 732-33 (Ind.Ct.App.2004) (explaining that such exceptions are mandatory).

A trade secret is
information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
(1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Ind.Code § 24-2-3-2 (2013). See also Ind. Code § 5-14-3-2(q) (2013) (stating that for purposes of APRA, the term “ ‘[t]rade secret’ has the meaning set forth in IC 24-2-3-2”); Admin. R. 9(A)(1) (explaining that unless otherwise provided, access to court records under Administrative Rule 9 is governed by the provisions of APRA). Based on this statutory definition, Indiana courts have long held that a trade secret has four general characteristics: 1) it is information; 2) that derives independent economic value; 3) that is not generally known, or readily ascertainable by proper means by others who can obtain economic value from its disclosure or use; and 4) that is the subject of efforts, reasonable under the circumstances, to maintain its secrecy. See, e.g., Ackerman v. Kimball Int’l, Inc., 634 N.E.2d 778, 783 (Ind.Ct.App.1994), vacated in part, adopted in part, 652 N.E.2d 507 (Ind.1995).

ANALYSIS

There are certain procedures a court must follow before granting a request to shield information from public access under either Indiana Code § 5-14-3-5.5 or Administrative Rule 9. Most notable among these are the court’s duty 1) to conduct a public hearing on the request and 2) to subsequently issue an order that specifically outlines why the need for privacy outweighs the strong public policy that would otherwise allow access to such records. See Ind.Code § 5 — 14—3—5.5(c),(d) (2013); Admin. R. 9(H)(l)-(3) (footnote added). When, however, the documents sought to be protected fall within the mandatory exceptions set forth in APRA or Administrative Rule 9, a court can seal those records without holding such a hearing and balancing the competing interests. See Bobrow, 810 N.E.2d at 734; Admin. R. 9(G)(1), (H), (I). Consequently, the Court’s primary task is to determine whether Orbitz’s contracts are, or contain, “trade secrets.”

First, the contracts at issue contain, and therefore are, “information.” As previously explained, the contracts specifically detail what Orbitz has negotiated with the hotels regarding room rates (ie., the net rates). See supra, note 1.

Second, Orbitz derives independent economic value from this pricing information. Indeed, given the highly competitive nature of the online travel industry, if Or-bitz’s competitors had access to that pricing information, they could possibly gain a competitive advantage by negotiating better rates with hotels.

Third, the pricing information contained in the contracts is not readily ascertainable through proper means by others who can obtain economic value from the information’s disclosure or use. While it cannot be denied that certain information relating to Orbitz’s contracts is already in the public domain (e.g., what hotels Orbitz negotiates with), neither Orbitz’s competitors nor the general public (ie., Orbitz customers) could readily ascertain the information regarding hotel room “net rates” that is contained in the contracts.

Finally, Orbitz has taken reasonable efforts to maintain the secrecy of the information contained within the contracts. Each contract contains its own confidentiality clause that precludes the hotels from disclosing to any third party any information relating to the contracts as well as any information provided by one party to the other in performing the contract. (See Pet’r Des’g Evid. Supp. Mot. Summ. J., Ex. 10, Attachs. D-F, Aug. 2, 2013.)

Because the Court has determined that Orbitz’s contracts have the four characteristics of trade secrets, they fall within the mandatory exceptions to the general rule of public access set forth in APRA and Administrative Rule 9. Accordingly, the Court need not determine whether Orbitz’s need for privacy outweighs the policy of providing public access. See supra, p. 6 (footnote added).

CONCLUSION

Competition is the bedrock of our country’s economic system. See Webster’s Third New Int’l Dictionary 332 (2002 ed.) (defining capitalism). The protection afforded to trade secrets under APRA and Administrative Rule 9 helps to foster a healthy, competitive marketplace. See Bridgestone Americas Holding, Inc. v. Mayberry, 878 N.E.2d 189, 192 (Ind.2007) (stating that “[u]nlike other assets, the value of a trade secret hinges on its secrecy. As more people or organizations learn the secret, [its] value quickly diminishes”). Here, Orbitz’s contracts contain trade secrets and therefore are protected from public disclosure under both APRA and Administrative Rule 9.

SO ORDERED.

      . Generally speaking, a hotel will contract with Orbitz to make its rooms available for reservation through Orbitz’s website. Pursuant to the contract, the hotel agrees to accept a certain amount for its rooms ("net rate”). (Jt. Stip. Facts, Aug. 28, 2013 ("Jt. Stip.”), ¶ 43.) Nevertheless, a customer who books a room through the website sees — and ultimately pays — a different amount, as Orbitz has added a facilitation fee, a service charge, and a tax recovery charge to the net rate. (See Jt. Stip., ¶ 44.) The tax recovery charge is equal to the amount of state and local taxes due on the room’s rental at the net rate. (See Jt. Stip., ¶ 56.) After the customer has occupied the room, Orbitz forwards to the hotel the portion of the payment it collected from the customer that constitutes the room's net rate and tax recovery charge. (Jt. Stip., ¶¶ 53, 56, 58, 62-63.) The hotel is then responsible for remitting to the taxing authorities the appropriate state and local taxes due on the room's rental. (Jt. Stip., ¶ 64.) Here, as a result of its audit, the Department determined that taxes should have been calculated and remitted based on the total amount Orbitz’s customers paid for the hotel rooms, not merely on the rooms’ net rates.

      . A court record "means both case records and administrative records.” Ind. Administrative Rule 9(C)(1). A case record is "any document, information, data, or other item created, collected, received, or maintained by a court ... in connection with a particular case.” Admin. R. 9(C)(2). An administrative record is "any document, information, data, or other item created, collected, received, or maintained by a court ... pertaining to the administration of the judicial branch of government and not associated with any particular case.” Admin. R. 9(C)(3).

      . With respect to the latter duty, Indiana Code § 5-14-3-5.5(d) requires that the court's order be based on findings of fact and conclusions of law and show
      that the remedial benefits to be gained by effectuating the [state’s] public policy of [public access] are outweighed by proof by a preponderance of the evidence by the person seeking the sealing of the record that:
      (1) a public interest will be secured by sealing the record;
      (2) dissemination of the information contained in the record will create a serious and imminent danger to that public interest;
      (3) any prejudicial effect created by dissemination of the information cannot, be avoided by any reasonable method other than sealing the record;
      (4) there is a substantial probability that sealing the record will be effective in protecting the public interest against the perceived danger; and
      (5)it is reasonably necessary for the record to remain sealed for a period of time. Ind.Code § 5-14-3-5.5(d) (2013). Administrative Rule 9 requires that a court’s order prohibiting public access to information in its records must find that at least one of the following factors has been met;
      (a) The public interest will be substantially served by prohibiting access;
      (b) Access or dissemination of the information will create a significant risk of substantial harm to the requestor, other persons or the general public;
      (c) A substantial prejudicial effect to ongoing proceedings cannot be avoided without prohibiting public access, or;
      (d) The information should have [already] been excluded from public access under section (G) of this rule.

        See Admin. R. 9(H)(l)-(3).

      . Indiana's Supreme Court has held that "where the duplication or acquisition of alleged trade secret information requires a substantial investment of time, expense, or effort, such information may be found 'not being readily ascertainable’ so as to qualify for protection” under Indiana Code § 24-2-3 (Indiana’s Uniform Trade Secrets Act). Amoco Prod. Co. v. Laird, 622 N.E.2d 912, 919 (Ind.1993).

      . "[A] trade secret often may include elements which by themselves may be readily ascertainable in the public domain, but when viewed together may still qualify for trade secret protection.” Id. If an Orbitz competitor were privy to the net rate information stated in the contracts, it could theoretically calculate the amount of Orbitz’s "mark-up” on the rooms by comparing the contract information with the hotel information Orbitz provides online.

      . During the hearing, two members of the public provided comments on whether Or-bitz's contracts should be protected from public access. First, an attorney for the Hendricks County Tourism Commission stated that because he believed the case is one of increasing public interest, he appreciated the Court’s efforts to determine whether the contracts contained trade secret information. (See Hr’g Tr. at 32-35.) Next, the president and chief executive officer of the South Shore Convention & Visitor's Authority commented that the public’s interest in access to the information outweighed Orbitz’s desire for confidentiality as the information was neither proprietary nor competitively sensitive. (See Hr’g Tr. at 28-29 (asserting that the information was not a trade secret because it was not based on "rocket science,” but merely followed the common business model used throughout the online travel industry).) Moreover, he claimed that Orbitz’s true reason for requesting confidentiality was to prevent "us Hoosiers who ... [are] not receiving the [benefit of the] taxes that [Orbitz] refuse[s] to remit ... [from] understanding] how badly we've been injured.” (Hr’g Tr. at 30.)
      While it may be true that the online travel industry uses the same business model in negotiating contracts with hotels, Orbitz points out that the business model "says nothing about ... how the pricing for Expedia differs from the pricing [for] Orbitz or Price-line” under that business model. (Hr’g Tr. at 37-39.) Those pricing differences, no matter how minute, may be the difference between players in a highly competitive industry. Furthermore, the contracts do not reveal how much tax, if any, Orbitz might owe.


text:
    In the Matter of Jeffrey D. HECK, Respondent.
    No. 29S00-1303-DI-170.
    Supreme Court of Indiana.
    Oct. 28, 2013.
   PUBLISHED ORDER CERTIFYING TERMINATION OF NONCOOPERATION SUSPENSION

Pursuant to Indiana Admission and Discipline Rule 23(10)(f), this Court suspended Respondent from the practice of law in this State for failing to cooperate with the Disciplinary Commission concerning a grievance filed against Respondent. On October 21, 2013, the Executive Secretary of the Disciplinary Commission filed a “Certification of Compliance,” stating that Respondent has now cooperated with its investigation. Pursuant to Admission and Discipline Rule 23(10)(f)(3), Respondent’s suspension from the practice of law terminated as of the date the certification was filed.

The Court therefore ORDERS that Respondent’s suspension from the practice of law for failure to cooperate in this case be shown as terminated as of October 21, 2013, and that Respondent be shown as reinstated to the practice of law in this state if no other suspension is in effect.

Pursuant to Admission and Discipline Rule 23(10)(f)(5) and Rule 2(h), Respondent’s failure to pay any outstanding costs assessed in this case by the due date of the next annual registration fee (October 1) will subject Respondent to an order of suspension from the practice of law.

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.


text:
    In the Matter of Jess M. SMITH, III, Respondent.
    No. 49S00-1309-DI-592.
    Supreme Court of Indiana.
    Oct. 28, 2013.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: Based on incident on December 11, 2011, Respondent pled guilty to operating a vehicle while intoxicated, a class A misdemeanor. Other charges arising from the incident were then dismissed. Respondent timely self-reported his conviction. Respondent was previously convicted of operating a vehicle while intoxicated in 2003.

The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent was cooperative with the Commission; (3) Respondent contacted the Indiana Judges and Lawyers Assistance Program (“JLAP”) within 10 days of his arrest and is following the recommendations of JLAP.

Violation: The parties agree that Respondent violated Indiana Professional Conduct Rule 8.4(b), which prohibits committing a criminal act that reflects adversely on Respondent’s trustworthiness or fitness as a lawyer.

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 90 days, beginning on the date of this order, all stayed subject to completion of at least 24 months of probation 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:

(1) Respondent shall have no violations of the JLAP agreement or the Rules of Professional Conduct during his probation.
(2) During his probation, Respondent shall refrain totally from the use of alcohol and mind-altering substances except as prescribed.
(3) If Respondent violates his probation, the stay of his suspension will be vacated and he will be required to actively serve the suspension without automatic reinstatement.
(4) If the Commission determines there is good reason to believe that Respondent is disabled, the Commission may bring an action seeking disability suspension pursuant to Admission and Discipline Rule 23(25).

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 a petition to terminate probation filed under Admission and Discipline Rule 23(17.1).

The costs of this proceeding are assessed against Respondent.

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


author: RUSH, Justice.

text:
    Heather N. KESLING, Appellant (Plaintiff below), v. HUBLER NISSAN, INC., Appellee (Defendant below).
    No. 49S02-1302-CT-89.
    Supreme Court of Indiana.
    Oct. 29, 2013.

      Robert E. Duff, Lebanon, IN, Attorney for Appellant.
    Julianne Nixon Sheeks, Greenfield, IN, Attorney for Appellee.
    Ronald C. Smith, Donn H. Wray, Marc A. Menkveld, Indianapolis, IN, Attorneys for Amicus Curiae Automobile Dealers Association of Indiana, Inc.
    Paul L. Jefferson, T. Joseph Wendt, Indianapolis, Indiana, Attorneys for Amicus Curiae Indiana Legal Foundation.
   RUSH, Justice.

An auto dealership’s advertisement of an inexpensive used car as a “Sporty Car at a Great Value Price,” is textbook puffery— not actionable as deception or fraud, because a reasonable buyer could not take it as a warranty about the car’s performance or safety characteristics. But when the dealer has inspected the car and should know it has serious problems, answering a buyer’s question about why it idled roughly by claiming that it “would just need a tune-up” may be actionable as fraud. We therefore hold that the buyer’s fraud claim survives summary judgment, even though her deception claims cannot.

Facts and Procedural History

Viewed in the light most favorable to Plaintiff Heather Kesling as the non-moving party, the summary judgment record shows that in late 2007, Defendant Hubler Nissan, Inc. placed an ad on AutoTrader.com for a 1996 Mitsubishi Eclipse. Underneath several photos of the car, the ad stated:

Price $2,981

Body Style Hatchback

Mileage 165,478

Exterior Color Maroon

Interior Color Grey

Engine 4 Cylinder Gasoline

Transmission 4 Speed Automatic

Drive Type 2 wheel drive — front

Fuel Type Gasoline

Doors Two Door

Seller’s Comments: INTERNET SALE ... REDUCED PRICE!! Trade-In, Automatic, Power Roof, CD/Cassette, Power Interior Options, Cruise, Fog lights, Alloy Wheels ... Sporty Car at a Great Value Price.

Appellant’s App. 105-07 (italic emphasis added).

Kesling saw the ad, then went to Hu-bler’s lot on November 3, 2007 to see and test-drive the car. The salesperson immediately took them to the car but had to jump-start it before it could be driven. The car idled roughly, and Kesling asked the salesperson why. He answered that the car “would just need a tune-up” because “it had been sitting for a while.” (In fact, though, the car had not been sitting for very long, since Hubler had taken it on trade just a couple of weeks earlier.)

Kesling offered $2,000 “plus tax and tag” for the car, and Hubler counter-offered $2,098 plus tax and document fees, for a total price of $2,322.88. Kesling agreed, and signed a sales contract memorializing the deal. She also signed an ac-knowledgement that the car was sold “AS IS-NO WARRANTY ... regardless of any oral statements about the vehicle.” Immediately after completing the purchase, Kesling immediately went to an auto-parts store across the street from the dealership to have the car’s computer-diagnostic codes read. But the car’s diagnostic codes could not be retrieved, so Kesling took the car to another Mitsubishi dealership and an independent mechanic for detailed diagnoses and estimates. Both inspections showed extensive problems with the car well beyond needing a tune-up. Ultimately, she only drove the car 44 miles before parking it in long-term storage as undrivable.

More than two years later, Kesling obtained an expert inspection for purposes of this litigation. The expert’s report revealed a loose tie rod and misrouted accessory belt, either of which the expert stated could cause loss of steering control. Moreover, the engine had a fuel-return line that had been blocked off, leaked fuel, and could cause the car to catch fire while driving. And because there was no provision for connecting the blocked-off line to the other systems of the car — and other signs, including poorly spliced wiring — the original engine had apparently been replaced with one from a different Mitsubishi model. According to the expert, each of these three problems made the car unsafe to operate, and would have been obvious to anyone who would have inspected or serviced the car at a dealership — such as during a routine trade-in inspection of the type Hubler admitted having performed.

Kesling sued Hubler, alleging that advertising the car as a “Sporty Car at a Great Value Price” (1) violated the Indiana Deceptive Consumer Sales Act and (2) entitled her to treble damages and attorney fees under the Crime Victim’s Relief Act, Ind.Code § 34-24-3-1 (2008 Repl.), because the ad also constituted criminal deception, I.C. § 35-43-5-3(a)(9) (2008 Repl.). She also alleged (3) that the salesperson’s representation that the car “would just need a tune-up” was fraudulent, since the defects should have been apparent during the trade-in inspection.

The trial court granted Hubler’s motion for summary judgment on all counts. So far as relevant on transfer, the trial court reasoned that “Sporty Car at a Great Value Price” was “simply puffing” and made no substantive representation; that there was no evidence that the defects found by the expert witness were present when the car was sold; and that signing the “as-is” disclaimer and immediately having the car inspected after purchase showed Kesling did not rely on Hubler’s statement that the car “would just need a tune-up.” Kesling appealed.

By a split decision, the Court of Appeals reversed. The majority agreed with Kes-ling that calling the car a “Sporty Car at a Great Value Price” could implicitly represent “that it is a good car for the price and that, at a minimum, it is safe to operate,” thus precluding summary judgment on Kesling’s deception claims. Kesling v. Hubler Nissan, Inc., 975 N.E.2d 367, 374 (Ind.Ct.App.2012). It similarly found a question of fact as to whether the car had the tie rod, accessory belt, and fuel line defects when it was sold, and of whether Hubler actually knew of those defects when its salesperson failed to disclose them. Id. at 370, 374-75. In dissent, Judge Friedlander concluded that as a matter of law, “Sporty Car at a Great Value Price” was “typical used-car-sales puffery” and “devoid of content relative to the vehicle’s operating status.” Id. at 376 (Friedlander, J., dissenting). He did not separately address Kesling’s fraud claim.

We granted transfer, 982 N.E.2d 298 (Ind.2013) (table), vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A). We agree with Judge Friedlander that “Sporty Car at a Great Value Price” is classic puffery, which is fatal to Kes-ling’s deception claims. But we agree with the Court of Appeals majority that Kesling has established an issue of fact as to her fraud claim based on the salesperson’s statements. Accordingly, we affirm the trial court in part and reverse in part.

Standard of Review

We review a trial court’s entry of summary judgment under the same standard as the trial court, and affirm “only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.” Tom-Wat, Inc. v. Fink, 741 N.E.2d 343, 346 (Ind.2001). We look only to the materials properly designated to the trial court, and we take all facts and draw all reasonable inferences in favor of the non-moving party. Id.

Specific findings or conclusions made in the summary-judgment order help our review by giving insight into the trial court’s rationale, but they do not change our standard of review. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind.1996). Nor does the trial court’s decision to adopt a party’s proposed order verbatim affect our review (though we do not encourage that practice). Carpenter v. Carpenter, 891 N.E.2d 587, 592-93 (Ind.Ct.App.2008). In either event, our review of summary judgment is de novo, Kovach v. Caligor Midwest, 913 N.E.2d 193, 196 (Ind.2009), and we apply that standard carefully to ensure that a litigant is not improperly denied a day in court, Tom-Wat, 741 N.E.2d at 346.

Discussion

I. Kesling’s Deception Claims.

Kesling’s claim alleges two separate forms of deception. One is civil and the other is quasi-criminal, but both counts allege that it was deceptive to call the car either a “Sporty Car” or a “Great Value,” since it was unsafe to drive or otherwise use as expected for an ordinary passenger car. We address her civil claim first, though our analysis of her quasi-criminal claim is similar because we find the issue of “puffing” dispositive of both.

A. Indiana Deceptive Consumer Sales Act.

Kesling’s purely civil claim relies on the Deceptive Consumer Sales Act (DCSA). The DCSA is a remedial statute and “shall be liberally construed and applied to promote its purposes and policies” of protecting consumers from deceptive or unconscionable sales practices. I.C. § 24-5-0.5-1 (2007 Repl.). It is a “deceptive act” for a “supplier” like Hubler to make certain “representations as to the subject matter of a consumer transaction” — including, so far as relevant here, that it “has ... performance, characteristics, ... uses, or benefits it does not have which the supplier knows or should reasonably know it does not have.” I.C. § 24-5-0.5-3(a)(l) (emphasis added). But even when a seller’s failure to disclose known problems is sufficiently deceptive to be actionable on grounds such as fraud, it is not actionable as a “deceptive act” because a nondisclosure is not a “representation” of any fact. Lawson v. Hale, 902 N.E.2d 267, 273-74 (Ind.Ct.App.2009). Here, Kesling argues, and the Court of Appeals majority agreed, that “Sporty Car at a Great Value Price” constituted an implied representation of fact — specifically, that the car was “a good car for the price” and therefore “that, at a minimum, it [was] safe to operate.” Kes-ling, 975 N.E.2d at 374.

Kesling argues that the actionability of implied representations of fact under the DCSA is an issue of first impression, while Hubler claims that Berghausen v. Microsoft Corp. is controlling, and excludes implied representations from the ambit of the DCSA. 765 N.E.2d 592 (Ind.Ct.App.2002), trans. denied. We agree with Kesling that the issue is open, because Berghausen did not address its merits, but essentially found the issue waived for lack of cogent argument. Id. at 598 (stating that the plaintiff “does [not] offer argument explaining why Microsoft’s ‘implicit representations’ would fit within the [DCSA] definition of deceptive acts”). Yet this case does not offer an opportunity to address implied representations of fact, as it might if Kes-ling’s claim were based on the ad’s representation that the car had cruise control, but the system did not actually work. Instead, we find it dispositive that Hubler’s statements were merely “puffing” — statements of unverifiable opinion — and not representations of fact at all.

Indeed, by requiring a representation of fact, the DCSA looks to the same criterion that distinguishes an actionable warranty from non-actionable “puffing,” which makes breach of warranty cases instructive. For example, calling a diesel truck “road ready” is “an express affirmation of fact,” exposing the seller to liability when the engine block cracks two weeks later and renders the truck inoperable. Wiseman v. Wolfe’s Terre Haute Auto Auction, Inc., 459 N.E.2d 736, 737-38 (Ind.Ct.App.1984). By contrast, “statements of the seller’s opinion, not made as a representation of fact” — such as claiming a product “is the best” — are “simply puffing which does not create an express warranty.” Martin Rispens & Son v. Hall Farms, Inc., 621 N.E.2d 1078,1082 (Ind.1993) (emphasis added), abrogated on other grounds by Hyundai Motor Am., Inc. v. Goodin, 822 N.E.2d 947, 958-59 (Ind.2005). Put another way, puffery consists of “empty superlatives on which no reasonable person would rely,” or “meaningless sales patter,” All-Tech Telecom, Inc. v. Amway Corp., 174 F.3d 862, 868 (7th Cir.1999)— what Learned Hand called the “kind[] of talk which no sensible man takes seriously, and if he does he suffers from his credulity.” Vulcan Metals Co. v. Simmons Mfg. Co., 248 F. 853, 856 (2d Cir.1918).

Rispens involved both puffing and representations of fact, and illustrates the difference between them. There, watermelon seeds were labeled as “top quality seeds with high vitality, vigor[,] and germination.” 621 N.E.2d at 1082. But they turned out to be contaminated with bacteria, which caused a blight that ruined that year’s crop for the farmer who planted them. Id. at 1080-81. The farmer sued the seed grower, arguing that the label’s statement created a warranty and that the contamination breached that warranty. Id. at 1081-82. We concluded that “top quality seeds” was “a classic example of puffery” because it “contains no definitive statement as to how the product is warranted or any assertion of fact concerning the product, but is merely the opinion of’ the seller. Id. at' 1082-83. But “high vitality, vigor[,] and gérmination” could constitute a warranty, because it was “a promise that the seeds will perform in a certain manner,” not merely the seller’s opinion. Id. at 1083.

Here, each part of “Sporty Car at a Great Value Price” can reasonably be taken only as puffing, akin to “top quality” in Rispens, and not as a representation of any fact. Whether a car is “sporty” is a subjective assertion of opinion, not fact, commonly applied in advertising to anything from Porsches to pickup trucks. Moreover, much like Judge Friedlander, we believe the term refers to a car’s styling or design, not its drivability, Kesling, 975 N.E.2d at 376 (Friedlander, J., dissenting) — who would dispute that an old MG roadster or Ford Mustang is a “sporty car,” even if it is totally un-roadworthy and needs complete restoration? “Sporty” (unlike “road ready,” Wiseman, 459 N.E.2d at 737-38) simply cannot reasonably be ascribed any significance as a representation of a car’s state of repair or drivability. Similarly, “Great Value Price” cannot reasonably be understood to have any greater significance than the comparable terms “great price” or “priced to sell.” Reasonable buyers cannot expect a seller to admit their price is “significantly inflated,” and therefore cannot take seriously an assurance that the price is a “bargain,” “below market,” or otherwise a “Great Value.” Both terms, whether read together or in isolation from each other, are mere puffery as a matter of law.

Since puffing is merely a statement of opinion, Rispens, 621 N.E.2d at 1082-83, it cannot be a representation of fad — and thus, cannot be “deceptive” under the DCSA. The trial court correctly entered summary judgment for Hubler on this issue.

B. Crime Victim’s Relief Act Damages for Criminal Deception.

Kesling’s other deception claim is quasi-criminal. She argues that Hubler’s ad constitutes criminal deception — “disse-minat[ing] to the public an advertisement that the person knows is false, misleading, or deceptive,” I.C. § 35-43-5-3(a)(9) — and that she is entitled to treble damages and other civil remedies under the Crime Victim’s Relief Act, I.C. § 34-24-3-1, because she has “suffer[ed] a pecuniary loss as a result of a violation of’ the criminal deception statute. (An actual criminal conviction is not required for recovery; a claimant “merely must prove each element of the underlying crime by a preponderance of the evidence.” Klinker v. First Merchs. Bank, N.A., 964 N.E.2d 190, 193 (Ind.2012).)

But like the DCSA, the criminal deception statute also depends on a “representation” of some fact, by requiring consideration of “not only representations contained or suggested in the advertisement ..., but also the extent to which the advertisement fails to reveal material facts in the light of the representations.” I.C. § 35-43-5-3(b) (emphases added). Our “puffing” conclusion therefore carries just as much force here as it does to the DCSA — that because “Sporty Car at a Great Value Price” expresses Hubler’s puffed opinion, rather than representing any objective fact, it cannot be a basis for a criminal deception claim. (If anything, that conclusion applies even more strongly here, because unlike the liberal construction given to the DCSA’s remedial provisions, criminal statutes are narrowly construed, Meredith v. State, 906 N.E.2d 867, 872 (Ind.2009) — as is the Crime Victims’ Relief Act, which is also “a punitive measure,” Klinker, 964 N.E.2d at 195.) The trial court was correct to grant summary judgment to Hu-bler on this issue as well.

C. The Harm of Finding “Puffing” Deceptive.

While deceptive advertising is certainly detrimental to the public, treating these “puffing” statements as actionable representations would have undesirable consequences as well. Construing either “Sporty Car” or “Great Value Price” as a representation of fact is at best a double inference — first, taking the ad to “impl[y] that the Eclipse was a good car for the price” (as opposed to simply being inexpensive), and second, inferring from the first inference that the car was “thus, at a minimum, safe to operate.” Kesling, 975 N.E.2d at 372.

Allowing a deception claim to be based upon such a double inference is problematic under both the civil and criminal statutes. First, we recognize that the DCSA must be liberally construed, but only so far as its purpose of “protect[ing] consumers from suppliers who commit deceptive and unconscionable sales acts,” I.C. § 24 — 5—0.5—1 (b) (emphasis added). It does not extend to protecting consumers from themselves. Yet that is essentially what Kesling seeks — not merely for suppliers to anticipate what consumers might infer from an advertisement itself (which, again, is the implied-representation question we reserve for another day), but to further anticipate what consumers might then secondarily infer from their own inferences. Such a requirement would exceed the stated purpose of the statute, and demand an unrealistic degree of intuition about consumers’ subjective perceptions.

The double-inference concern is an even greater problem under the criminal deception statute. A criminal statute is unconstitutionally vague “if its prohibitions are not clearly defined,” or “its terms invite arbitrary or discriminatory enforcement.” Klein v. State, 698 N.E.2d 296, 299 (Ind.1998) (citing Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) and Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)). It is difficult to imagine how an advertiser could “know” an advertisement is deceptive as the statute requires, I.C. § 35-^3 — 5—3(a)(9), if that inquiry requires them to “know” what inference upon inference (and perhaps further inference beyond that, and beyond that again) any given member of the public might draw.

Finally, the Court of Appeals’ approach would significantly impede legitimate advertising. The majority observed that “ ‘Sporty Car at a Great Value Price’ goes beyond a bare '1996 Mitsubishi Eclipse for $2981,” and that if Hubler had “merely listed the vehicle’s specifications and features, Kesling likely would not have a viable case.” Kesling, 975 N.E.2d at 372, 374. But advertising need not be limited to a product’s “name, rank, and serial number” in order to have a safe harbor against civil or criminal liability. Cf. Passmore v. Multi-Mgmt. Servs., Inc., 810 N.E.2d 1022, 1028 (Ind.2004) (expressing concern that “declaring employers liable for negligence in providing employment references will lead universally to employer reluctance to provide any information other than name, rank, and serial number”). While advertisements may not be deceptive, they need not refrain from any expression of the seller’s opinion, either. Hubler’s “puffing” simply is not the stuff of a deception claim.

II. Kesling’s Common Law Fraud Claim.

Kesling’s common-law fraud claim is based on the salesperson’s claim that the car “would just need a tune-up,” rather than on Hubler’s ad. As a result, her fraud claim fares better than her deception claims. The elements of common-law fraud are “(1) a material misrepresentation of past or existing fact which (2) was untrue, (3) was made with knowledge of or in reckless ignorance of its falsity, (4) was made with the intent to deceive, (5) was rightfully relied upon by the complaining party, and (6) which proximately caused the injury or damage complained of.” Lawyers Title Ins. Corp. v. Pokraka, 595 N.E.2d 244, 249 (Ind.1992). And unlike deception, “fraud is not limited only to affirmative representations; the failure to disclose all material facts can also constitute actionable fraud.” Lawson, 902 N.E.2d at 275. In particular, “[w]hen a buyer makes inquiries about the condition, qualities, or characteristics of property,” the seller must “fully declare any and all problems associated with the subject of the inquiry,” or else risk liability for fraud. Id. (internal quotation marks omitted) (finding “textbook case of fraud” where seller told buyer that a tractor leaked oil and gas, but claimed to know nothing else about it, when he in fact knew the engine block had cracked and been welded).

Those settled principles are enough for Kesling’s fraud claim to survive summary judgment. It is undisputed that Kesling asked the salesperson why the car’s idle was rough — and while there is some dispute about the precise response, the evidence most favorable to Kesling is that the salesperson told her the car “would just need a tune-up” because “it had been sitting for a while.” Regardless of whether that statement was qualified with the word “probably,” as some of the evidence suggests, “just need[s] a tune-up” can reasonably be understood as a representation of past or existing fact — as can the supporting claim that the ear “had been sitting for awhile.” And a jury could reasonably find both claims untrue, because the car needed extensive repair and not just a tune-up, and because the car had been taken on trade just two weeks before and hadn’t really “been sitting for awhile.”

Similarly, there is evidence to support an inference that the salesperson knew his statements to be false, but made them anyway with intent to deceive Kesling. Hubler admitted that it inspected the car when it accepted it on trade, so the salesperson as Hubler’s agent may be inferred to have at least constructive knowledge of the inspection — and of the car’s defects, which reportedly would have been obvious to anyone who would have inspected or serviced the car at a dealership. Failing to disclose those defects and instead representing that the car “would just need a tune-up” not only permits an inference of fraudulent intent, but also runs afoul of the related duty to “fully declare any and all problems associated with the subject of’ a buyer’s inquiry “about the condition, qualities, or characteristics of property.” Lawson, 902 N.E.2d at 275.

Finally, the summary judgment record shows a genuine issue of fact as to Kesling’s reliance on the salesperson’s statements. In her deposition, Kesling stated that she offered less than the asking price for the car because of the statement that the car needed a tune-up — in other words, that she relied on that statement in deciding how much she was willing to pay for the car. To be sure, other evidence implies that she didn’t actually rely on the statement — for example, taking the car to have its computer-diagnostic codes read immediately after purchase — but on summary judgment, we may only consider the evidence in the light most favorable to Kesling. Nor is she barred from claiming reliance because of signing an acknowl-edgement that she was buying the car “AS IS — NO WARRANTY ... regardless of any oral statements about the vehicle.” An as-is provision disclaims implied warranties, but it “provides no insulation from fraudulent misrepresentations.” Fimbel v. DeClark, 695 N.E.2d 125, 128 (Ind.Ct.App.1998), trans. denied; see also Lawson, 902 N.E.2d at 274-76 (allowing fraud claim for nondisclosure of cracked engine block to proceed, even though “as-is” disclaimer barred any claim for breaching implied warranty of merchantability).

Conclusion

Mere “puffing” is a statement of opinion, not a representation of fact, and thus cannot be the basis of deception or fraud claims. But stating that a car “would just need a tune-up,” in the face of actual or constructive knowledge that it had far more serious problems, does represent a fact — and therefore may be the basis of a fraud claim when a seller gives it as a knowingly incomplete answer to a buyer’s specific question. Accordingly, we affirm the trial court’s grant of summary judgment in favor of Hubler as to Kesling’s Deceptive Consumer Sales Act and Crime Victim’s Relief Act claims; reverse its grant of summary judgment as to Kes-ling’s fraud claim; and remand to the trial court for further proceedings not inconsistent with this opinion.

DICKSON, C.J., and RUCKER, DAVID, and MASSA, JJ., concur.


author: DICKSON, C.J.,

text:
    In the Matter of Larry D. BEESON, Respondent.
    No. 43S00-1305-DI-306.
    Supreme Court of Indiana.
    Oct. 31, 2013.
   PUBLISHED CORRECTED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: Respondent represented DH for about 20 years. In 2007, DH suffered a stroke and moved to a nursing home. Both DH and his wife, PH, were in their mid-80s, and PH was in declining mental health. After meeting with family members, Respondent prepared a power of attorney to change DH’s attorney-in-fact from PH to PH’s three children. He also prepared guardianship consent forms to place PH under the guardianship of one of her children. DH signed a guardianship consent form and sent it to Respondent. Although Respondent did not witness the signature, Respondent nevertheless notarized the signature on the consent form and filed it in the action to appoint a guardian for PH. There is no question that it was, indeed, DH’s signature on the guardianship consent form.

The parties cite the following fact in aggravation: Respondent has substantial experience in the practice of law. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent was cooperative with the Commission; (3) Respondent has acknowledged his misconduct and is remorseful; (4) Respondent accepts responsibility for his actions; and (5) Respondent’s misconduct was not due to a dishonest or selfish motive.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
8.4(d): Engaging in conduct prejudicial to the administration of justice.

Discipline: The parties propose the appropriate discipline is a public reprimand. The Court, having considered the submissions of the parties, now approves the agreed discipline and imposes a public reprimand for Respondent’s misconduct.

The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 28(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur, except DICKSON, C.J., who dissents.

DICKSON, C.J.,

dissenting.

Much of our legal system is predicated on the authenticity and reliability of signatures. For a lawyer to falsely notarize a signature is a deception that gravely undermines public trust, respect, and confidence in the legal profession. Such inexcusable misconduct is not justified or excused by considerations of client convenience, expediency, or lack of personal gain. Falsely notarizing a signature is manifestly dishonest and an absolute ethical transgression. For this offense, I favor a substantial period of suspension.


author: DAVID, Justice.

text:
    Jason WILSON, Appellant (Respondent below), v. Kelly (Wilson) MYERS, Appellee (Petitioner below).
    No. 71S03-1305-DR-399.
    Supreme Court of Indiana.
    Nov. 5, 2013.
    Robert J. Palmer, Mishawaka, IN, Attorney for Appellant.
    Frederick B. Ettl, South Bend, IN, Attorney for Appellee.

      .The children were not present at the March 19 hearing, nor was a Guardian Ad Litem present to represent their interests — despite one apparently having been appointed after Myers filed her motion to modify custody.

   DAVID, Justice.

When parents fight each other, it is often the children who suffer. When parents litigate against each other, however, the laws and legal system have explicit mechanisms and considerations aimed specifically at protecting the children caught in the middle.

Here, those mechanisms and considerations were ignored and a father was summarily ordered to give up custody of the two children who had been living in his care for over five years. Under the facts and circumstances of this case, we find that this summary resolution, without an evidentiary hearing where witnesses would be sworn and testimony heard, and without the consent of the parties and their counsel, was an abuse of the trial court’s discretion, and we therefore remand for the proper proceedings.

Facts and Procedural History

Jason Wilson and Kelly Myers divorced in 2006 and physical custody of their two children, A.W. and B.W., was awarded to Wilson. In February 2011, Myers filed a motion to modify actual physical custody with respect to A.W., requesting that A.W. be allowed to reside with her. She later amended her motion to seek physical custody of both children. The matter was referred to the Domestic Relations Counseling Bureau. The DRCB recommended that the parties and children participate in family counseling.

Myers subsequently filed a series of motions with the trial court, alleging that Wilson was attempting to sabotage the counseling process. In response, the trial court requested permission to communicate with the counselor directly; both Wilson and Myers agreed to this. The director of the counseling service then wrote a letter to the court, expressing outrage after discovering that Wilson had been secretly recording the counseling sessions. The trial court ordered Wilson to turn over the tapes, which he did, and set Myers’s motion to modify custody for a hearing on March 19, 2012.

Present at the hearing were Wilson, Myers, their attorneys, and the family counselors. At the beginning of the hearing, the trial judge announced her intent to rule on Myers’s motion to modify custody. Wilson requested an evidentiary hearing on custody, and also an additional in-camera interview of the children.

The hearing then shifted to the topic of Wilson’s recording of counseling sessions. The parties and counselors debated which parents were present at which sessions, and why Wilson had problems paying for his sessions. Wilson argued that his problems with counseling were not a sufficient basis to modify custody, and reiterated his request for another in-camera interview.

Instead, the trial court abruptly concluded the hearing, saying “I feel like we’ve wasted a year. And it shouldn’t go on any longer. I don’t want to have another in-camera. And I don’t understand why we would need an evidentiary hearing. Because I want to grant the Amended Motion to Modify Custody to give both the children to Ms. Myers.” (Tr. at 105.) The court then requested Myers prepare and file an order consistent with that decision. No witnesses were sworn during the hearing or evidence received.

Myers filed her proposed order the next day. That same day, Wilson notified the trial court that he did not believe the order was sufficient, but the order was entered as filed. Myers was awarded custody of both A.W. and B.W., effective the next weekend, with Wilson receiving parenting time as had previously been awarded to Myers.

Wilson appealed, arguing that the trial court abused its discretion in modifying the prior custody order without an eviden-tiary hearing and without issuing findings regarding the best interest of the children. (Appellant’s Br. at 1.) He also sought appellate attorney fees and expenses. (Appellant’s Br. at 1.)

The Court of Appeals affirmed in an unpublished memorandum decision. Wilson v. Myers, 979 N.E.2d 1072 (Ind.Ct.App.2012) (table). We granted transfer, thereby vacating the Court of Appeals opinion, see Ind. Appellate Rule 58(A), and now remand.

The Trial Court Abused Its Discretion in Modifying the Custody Order

The Indiana Code prohibits a court from modifying a child custody order unless “(1) the modification is in the best interests of the child; and (2) there is a substantial change in one (1) or more of the factors that the court may consider under section 8 and, if applicable, section 8.5 of this chapter.” Ind.Code § 31-17-2-21(a) (2008). “In making its determination, the court shall consider the factors listed under section 8 of this chapter.” Ind.Code § 31-17-2-21(b). Those factors include: the child’s age and sex; the wishes of the parent(s); the child’s wishes; the relationship the child has with his or her parent(s), sibling(s), and others; the child’s adjustment to home, school, and community; the mental and physical health of all involved; any evidence of domestic or family violence; and any evidence that the child has been cared for by a de facto custodian. Ind.Code § 31-17-2 — 8(1)—(8) (2008). There is no presumption favoring either parent, Ind.Code § 31-17-2-8, and the party seeking the modification bears the burden of demonstrating that the existing arrangement is no longer in the best interests of the child and there has been a substantial change in one or more of the enumerated statutory factors, Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.2002).

“We review custody modifications for abuse of discretion with a ‘preference for granting latitude and deference to our trial judges in family law matters.’ ” K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind.2009) (quoting Kirk, 770 N.E.2d at 307). And for a combination of reasons, we find such an abuse of discretion present in the way this modification was carried out and ordered.

The trial court’s order modifying a six-year-old custody agreement read as follows: Come now the parties in person and by counsel and hearing is had on Wife’s Motions to Modify Custody. The Court elicits information regarding counseling at Lincoln Therapeutic Partnership from Karen Davis, the parties’ counselor, and from Jeanine Curtis, Executive Director, and the Court elicits testimony from the RespondenWHusband, Jason Wilson.

The Court, being duly advised in the premises, grants the Wife’s Motions to Modify Custody and awards custody of the two minor children, namely: [B.W.] and [A.W.], to the Petitioner-Wife, Kelly Myers. Such custody modification exchange shall be effective Saturday, March 24, 2012. The Respondent-Husband, Jason Wilson, shall enjoy the same parenting time previously exercised by the Petitioner-Wife and as indicated by the Indiana Parenting Time Guidelines to include alternate weekend visitation and one weeknight each week.

The parties are ordered to exchange income information and to tender a proposed child support worksheet to the Court.

The Petitioner-Wife, Kelly Myers, agrees to maintain the children at their present schools until the end of the current semester; albeit, that will require the children to travel from the home of the Petitioner-Wife in Niles, Michigan to their respective schools in Mishawa-ka, Indiana until the end of the term. At the end of the Mishawaka school semester, the children can be enrolled at schools in the Niles, Michigan community where their Mother, the Petitioner-Wife, resides.

(Appellant’s App. at 17-18.) No mention is made of whether this modification is in the best interests of B.W. and A.W., nor is there any mention of a substantial change in any of the factors enumerated in Indiana Code § 31-17-2-8. And whether such explicit findings are required or not— and without reducing the importance of the statutory considerations to just talis-manic magic words in a trial court order— considering the proceedings leading up to the order, we cannot even infer support for such findings.

None of the witnesses at the March 19 hearing were sworn or cross-examined; none of the documents introduced — if there were any — were admitted through any foundation or examination of reliability. No courtroom formalities (and few civilities) seem to have been observed at all. Parties, attorneys, counselors, and the judge talked freely, interrupted, and questioned each other without any semblance of order or procedure. The trial court made reference to looking at “the whole picture” in making its decision, (Tr. at 105), but provided no insight into what was contained in that picture before simply announcing that it planned to grant Myers’s motion to modify custody. We know that the trial court contacted the family counselors directly, but none of what was learned during those conversations is reflected in the record. And nothing in the transcript of the hearing relates to any of the factors enumerated in Section 31-17-2-8, so we cannot safely assume that they were considered.

Myers argues that Wilson effectively waived any right to protest this process by signing the release authorizing the court to directly contact the counselors, not insisting that the witnesses be sworn, and not filing a motion requesting specific findings of fact and law. (Appellee’s Br. at 8-10.) But we must be mindful that even if Wilson — and Myers — waived their right to confrontation and formal cross-examination of witnesses, and consented to an unorthodox and summary procedure, the interests of the two critical individuals in the case — A.W. and B.W. — were not separately represented at the hearing. So even if the transcript did not clearly reflect Wilson requesting an evidentiary hearing and a second in-camera interview — which he did — we would be loathe to use that “waiver” as a cure-all to remediate a process defective in protecting the two individuals most at-risk in this venture.

In short, what we are now faced with on appeal is an order directing one parent to hand over two children to another parent with no mention or hint that doing so is in accordance with the Indiana Code. And the only support for this order is the transcript of what seems to be little more than an unorganized shouting match labeled as an “evidentiary hearing.” To issue such an order was therefore an abuse of discretion.

Tempers clearly ran hot for all involved in this case, as can easily happen in family law cases with disputed custody concerns. And while summary proceedings — when properly agreed to — can be beneficial in deciding matters of custody and parenting time to minimize the negative impact on the children, such summary proceedings may be less appropriate where the parties are vigorously contesting every facet of the process and appear incapable of approaching these decisions in a civil or cooperative manner. In such cases, we encourage trial courts to utilize the formal procedures embodied in the Indiana Trial Rules to maintain a level of control and decorum that keeps the litigation process from turning into a mud-slinging argument and preserves the rights of all involved.

Conclusion

We remand this case for a proper evi-dentiary hearing and inquiry into in-camera interviews to address Myers’s motion for modification of custody. At the same time, however, we are aware that A.W. and B.W. have already been pulled from the school and community they were in when living with Wilson, and are now in school in Michigan and living with Myers. Without condoning this change, or expressing any indication that we believe Myers’s motion should (or should not) ultimately be granted, we order this status quo to continue in order to minimize further disruption to A.W. and B.W., until further order of the trial court.

Therefore, while we vacate the trial court’s order, we cannot easily “reverse” what the order has already done. Simply put, the current living arrangement was not properly established, but at this point it is what it is and it is our obligation, in the best interests of the children, not to exacerbate the problem or to encourage the practice followed here.

DICKSON, C.J., RUCKER, MASSA, and RUSH, JJ., concur.

      . Initial in-camera interviews were conducted by DRCB and reviewed by the trial court nearly a year earlier — prior to the counseling sessions.

      . Wilson appears to argue that the absence of specific findings related to the best interest of the children and a substantial change in statutory factors related to child custody makes the order an abuse of discretion per se. (Appellant's Br. at 24-25.) We do not need to resolve today whether such explicit findings are required pursuant to Trial Rule 52(A) in child custody modification cases; here we find the collective process deficient regardless.

      . The parties continued to fight even with this order, debating the scope and duration of the academic "semester” and “term” identified in the order.

      . Myers says that "[t]he parties and all salient witnesses were present and available for examination and cross-examination; and, both direct and cross-examination ensued.” (Ap-pellee's Br. at 8.) She also claims that the hearing included a “thoroughgoing discussion of the evidence compiled over the course of the past year, and more particularly, a thoroughgoing discussion of the information or evidence adduced from Lincoln Therapeutic Partnership.” (Appellee’s Br. at 7.) To say this accurately describes the nature and process of the March 19 hearing is a stretch; and to the extent an in-depth discussion of the issues related to the counseling process occurred, those issues — -Wilson’s ability to pay counseling fees, attendance at sessions, and tape-recording of sessions — seem irrelevant to the factors enumerated in Ind.Code § 31-17-2-8.

      . At a later hearing, the trial judge acknowledged that one of the problems with this case was that it had been long-running and a "mess,” there had been violations of her prior orders, and "perhaps I was angry” when she concluded the March 19 hearing. (Tr. at 127.) And tempers continued to run hot at that later hearing, with one attorney referring to the other's statement as "an outrageous lie,” the other wanting to know "why is it a lie when my client says something,” and the trial court ordering them to "Stop it, both of you.” (Tr. at 120.) A new judge has since been appointed to hear this case. (Appellant's App. at 15.)

      . We also note that on remand it remains Myers’s burden to show that the original custody order should be modified — Wilson does not have to win his children back from Myers as a result of the trial court's abuse of discretion here.