author: PYLE, Judge.

text:
    DePUY ORTHOPAEDICS INC. and, Johnson & Johnson, Appellants-Defendants, v. Travis BROWN, et al., Appellees-Plaintiffs.
    No. 49A02-1304-CT-332.
    Court of Appeals of Indiana.
    May 30, 2014.

      Peter J. Rusthoven, Terri L. Bruksch, Michael R. Conner, Barnes & Thornburg LLP, Indianapolis, IN, Attorneys for Appellant.
    Eric C. Lewis, Lewis Legal Services, P.C., Indianapolis, IN, Attorney for Appel-lee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

In this interlocutory appeal, DePuy Or-thopaedics and Johnson & Johnson (collectively “DePuy”) appeal the denial of its motion to dismiss on the grounds of forum non conveniens, governed by Indiana Trial Rule 4.4(C).

We reverse and remand.

ISSUE

Whether the trial court erred when it denied DePuy’s motion to dismiss.

FACTS

DePuy Orthopaedics, a subsidiary of De-Puy Synthes and Johnson & Johnson, provides prosthetic products for hip, knee, and shoulder replacement surgeries. De-Puy sells its prosthetic products to hospi-tais through independent sales contractors. DePuy’s principal place of business is located in Warsaw, Indiana, which is located in Kosciusko County. There, DePuy maintains offices, a manufacturing facility, and a warehouse.

The product at issue in this case, the ASRtm XL Acetabular System (“ASR™ XL System”), is a prosthetic hip implant sold in the United States between 2005 and 2010. DePuy International Limited (“DePuy International”), located in Leeds, England, designed and manufactured the ASRtm XL System. Thereafter, DePuy International shipped the ASRtm XL System to DePuy facilities in Warsaw.

Between October 2007 and April 2009, nineteen people residing in Virginia and Mississippi (collectively “the Plaintiffs”) had the ASRtm XL System implanted during hip replacement surgeries; eighteen of the surgeries were performed in Virginia while the remaining surgery took place in Mississippi. On August 24, 2010, DePuy Orthopaedics issued a voluntary global recall of the ASRtm XL System. The Plaintiffs’ doctors notified them of the recall and advised them of the potential need for additional surgery.

On February 29, 2012, the Plaintiffs filed a complaint in Indianapolis, Indiana in the Marion County Superior Court for personal injuries alleging negligence, breach of express and implied warranties, and fraudulent concealment. DePuy filed a motion to dismiss based on Trial Rule 4.4(C). Pursuant to Trial Rule 4.4(D), it also stipulated that DePuy would submit to the personal jurisdiction of Virginia and Mississippi courts and waive any statute of limitation defenses available in those states.

On January 11, 2013, the trial court heard oral arguments on DePuy’s motion. DePuy argued that trial in Marion County would not be convenient because the acts alleged by the Plaintiffs in their complaint took place outside Indiana. Further, De-Puy claimed that witnesses and evidence essential to their defense were located beyond the subpoena power of the Indiana trial court. Many of the Plaintiffs’ arguments in response focused on the fact that Indiana has personal jurisdiction over De-Puy and that filing suit in Marion County was permissible. As to Trial Rule 4.4(C) matters, the Plaintiffs claimed that video depositions could cure any prejudice De-Puy would suffer from not having subpoena power over certain witnesses. Finally, the Plaintiffs desired an earlier trial date than could be expected if they proceeded through pending federal multi-district litigation proceedings regarding the ASRtm XL System.

On January 22, 2013, the trial court issued an order summarily denying De-Puy’s motion to dismiss. DePuy filed a motion to certify the trial court’s order for interlocutory appeal. The trial court granted DePuy’s motion and certified its order. Thereafter, we accepted jurisdiction.

DECISION

Conflict of laws is a body of law governing how disputes which involve the laws of more than one country or state are resolved. Symeon C. Symeonides, Conflict of Laws, in Kermit L. Hall & David S. Clark, The Oxford Companion to American Law 138 (Oxford Univ. Press., 2002). A conflict exists because some or all of the elements associated with a plaintiffs claim are connected with more than one jurisdiction. Id. In other words, the facts of a particular case may allow a plaintiff to file suit in one or more states, even a foreign country.

Generally, a plaintiff is free to select the appropriate court or forum to resolve his or her claim. However, there are limitations. One of these limitations is the common law, equitable doctrine known as forum non conveniens. This doctrine grants trial courts the discretionary power to dismiss a case “whenever it appears that the cause before it may be more appropriately tried elsewhere.” Paxton Blair, The Doctrine of Forum Non Conve-niens in Anglo-American Law, 29 Col. L. Rev 1 (1929); See also Broderick v. Rosner, 294 U.S. 629, 643, 55 S.Ct. 589, 79 L.Ed. 1100 (1935). The early application of this doctrine seems to have been aimed at limiting forum shopping, which is the plaintiffs ability to select a court or jurisdiction that he or she feels would render the most favorable verdict. Blair, supra at 24. (Blair argues that forum shopping frustrates the legislative process of apportioning the necessary number of judges and courts for a particular population, leads to congested court calendars, and burdens local taxpayers with the expense of trying imported controversies.). However, principles of fairness enshrined in various Federal and Indiana constitutional provisions, including the dormant commerce clause and the doctrine of comity, require that citizens, whether or not they are residents of a particular state, be given access to the courts. 1 William F. Harvey, Indiana Practice: Rules of Procedure Annotated § 4.4 at 308 (3d ed. 1999 & Supp. 2013).

Given the natural tension between the doctrine of forum non conveniens and the preference for open access to Indiana’s courts, courts have struggled to discern the criteria for dismissing a case under the doctrine of forum non conveniens; it has been the subject of “considerable discussion and variance of view.” Id. at 311-12. However, it is generally agreed that the doctrine should be applied sparingly and that its objective should be to “promote the ends of convenience and justice.” Id.

In its effort to find this balance, Indiana has adopted Trial Rule 4.4(C), which, at the time, was taken from the Wisconsin Civil Code. Id. This Court has stated that the purpose of the rule “is to permit a case to be litigated in another state upon a showing that litigation in Indiana is so inconvenient that substantial injustice is likely to result.” Employers Ins. Of Wausau v. RFC, 716 N.E.2d 1015, 1021 (Ind.Ct.App.1999) (emphasis added). “A mere inconvenience to a corporate defendant’s employees does not create the type of injustice necessary to warrant a dismissal on forum non conveniens grounds.” JPMorgan Chase Bank, N.A. v. Desert Palace, Inc., 882 N.E.2d 743, 753 (Ind.Ct.App.2008) trans. denied. However, “[t]he convenience of non-party witnesses is usually the most important factor to consider in deciding whether to depart from the plaintiffs choice of forum.” Id.

In exercising its discretion to decide whether to dismiss a case on forum non conveniens grounds, a trial court may appropriately consider such factors as:

(1) Amenability to personal jurisdiction in this state and in any alternative forum of the parties to the action;
(2) Convenience to the parties and witnesses of the trial in this state and in any alternative forum;
(3) Differences in the conflict of law rules applicable in this state and in the alternative forum; or
(4)Any other factors having substantial bearing upon the selection of a convenient, reasonable and fair place of trial.

T.R. 4.4(C).

We review a trial court’s order regarding forum non conveniens motions for an abuse of discretion. Anyango, 971 N.E.2d at 656. An abuse of discretion occurs when “the trial court arrives at a conclusion that is clearly against logic and the natural inference to be drawn therefrom.” Freemond v. Somma, 611 N.E.2d 684, 690 (Ind.Ct.App.1993), trans. denied.

In deciding this case, we find the facts and reasoning outlined by the United States Supreme Court case of Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), whose reasoning the Indiana Supreme Court adopted in Anyango, to be persuasive. There, several Scottish subjects and residents died in an airplane crash in Scotland. Piper, 454 U.S. at 238-39, 102 S.Ct. 252. Preliminary reports concluded that a mechanical failure in the plane or propeller caused the crash. Id. However, further review found no evidence of defective equipment and indicated that pilot error was to blame. Id. An administrator for the decedents’ estates filed a wrongful death suit in California against Piper Aircraft Company, who manufactured the plane, and Hartzell Propeller, the manufacturer of the propellers. Id. at 239-40, 102 S.Ct. 252. Decedents’ survivors filed a separate action in the United Kingdom. Id. The plane was manufactured in Pennsylvania, and the propellers were manufactured in Ohio. Id. at 238-39, 102 S.Ct. 252.

The administrator admitted that she filed the lawsuit in California because of its laws regarding liability, capacity to sue, and because potential damages were more favorable in California than in Scotland. Id. at 240, 102 S.Ct. 252. Defendants first moved to transfer the case to federal court. After the case was moved to the United States District Court, a subsequent motion to transfer to the Middle District of Pennsylvania was granted. Id. Once there, both Piper and Hartzell moved for dismissal on the ground of forum non conveniens. Id. at 241, 102 S.Ct. 252. The district court granted the motion, finding that Scotland was a more convenient forum based on the Supreme Court’s balancing test stated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). Piper, 454 U.S. at 241-44, 102 S.Ct. 252. The Third Circuit Court of Appeals reversed, holding that dismissal is automatically barred where the law of the alternative forum is less favorable to the plaintiff than the law of the forum chosen by the plaintiff. Id. at 244, 102 S.Ct. 252.

The United States Supreme Court reversed, concluding that dismissal could not be denied “merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the present forum.” Id. at 247, 102 S.Ct. 252. The Court further stated, while emphasizing the need to retain flexibility in considering forum non conveniens motions, “dismissal will ordinarily be appropriate where trial in the plaintiffs chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice.” Id. Finally, the Court reiterated the relevant public and private interest factors stated in Gilbert. Id. at 241, n. 6, 102 S.Ct. 252. The private factors mentioned were the “relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, "witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Id. The public interest factors to be considered include administrative difficulties for already congested courts and burdening jurors with litigation to which they have no relation or connection. Id. “[Wjhere the trial court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” Id. at 257, 102 S.Ct. 252. In light of the factors stated in Trial Rule 4.4(C) and the reasoning in Piper, we hold that the trial court abused its discretion in denying DePuy’s motion to dismiss.

I. Personal Jurisdiction

Regarding Trial Rule 4.4(C)(1), an initial important consideration is DePuy’s willingness to concede personal jurisdiction to Virginia or Mississippi courts. In this case, the plaintiffs are already residents of those respective states. Further, DePuy submitted a stipulation under Trial Rule 4.4(D) stating that it would submit to the personal jurisdiction of the plaintiffs’ home states and would waive any defense based on the applicable statutes of limitation. The Plaintiffs argue extensively as to why Indiana has personal jurisdiction over De-Puy. However, the trial court’s personal jurisdiction over a defendant has no bearing in satisfying the first prong of Trial Rule 4.4(C). “Indeed, the doctrine of forum non conveniens ] can never apply if there is absence of jurisdiction or mistake of venue.” Gilbert, 330 U.S. at 504, 67 S.Ct. 839. As a result, this first consideration weighs in favor of dismissal.

II. Convenience

The next important consideration under Trial Rule 4.4(C)(2) is the “[ejonvenience to the parties and witnesses of the trial in this state and in any alternative forum; .In this ease, we note again that each of the Plaintiffs live in Virginia or Mississippi. Concerning the inconvenience to DePuy, we note that it is a corporation conducting business nationally and that it is no stranger to multiparty litigation. As a result, it is likely that this case will involve some inconvenience no matter what the jurisdiction. In addition, “[a]ny inconvenience is mitigated by air travel, overnight delivery, electronic data transmission and videotaped depositions which are a part of the normal course of business for such companies.” Employers Ins. of Wausau, 716 N.E.2d at 1022-23. However, the facts of this case show that many of the key witnesses, such as physicians, other medical personnel, and persons associated with the plaintiffs, are located in Virginia or Mississippi. While there will likely be DePuy employees located in Indiana who will be called as witnesses, it seems clear that the majority of the witnesses will be nonresidents. Given the facts of this case, the inconvenience and cost DePuy would incur securing the attendance of out of state witnesses (especially if they are uncooperative), deposing them, and conducting additional discovery is not insignificant. As a result, this factor also supports dismissal.

III. Choice of Law

Another important consideration under Trial Rule 4.4(C)(3) is the difference in conflict of law rules applicable to Indiana, Virginia, and Mississippi. In this case, both parties agree that the laws of Virginia and Mississippi will apply to much, if not all, of the tort claims in this case. The plaintiffs argue “that it is completely reasonable to presume that Indiana courts would be able to quickly and efficiently discover how Virginia and Mississippi address particular points of law that may differ from Indiana.” (Plaintiffs’ Br. 15). However, Piper, citing Gilbert, recognized that “[tjhere is a local interest in having localized controversies decided at home.” Piper, 454 U.S. at 241, n. 6, 102 S.Ct. 252. “There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.” Id.

Further, applying Indiana’s choice of law analysis, we conclude that Virginia and Mississippi laws would apply to the tort claims in this case. The first part of Indiana’s choice of law analysis is determining “whether the differences between the laws of the states are ‘important enough to affect the outcome of the litigation.’ ” Simon v. United States, 805 N.E.2d 798, 805 (Ind.2004) (quoting Hubbard Manufacturing Co. v. Greeson, 515 N.E.2d 1071, 1073 (Ind.1987)). If there is a conflict, “the presumption is that the traditional lex loci delicti rule (the place of the wrong) will apply. Under this rule, the court applies the substantive laws of ‘the state where the last event to make an actor liable for the alleged wrong takes place.’ ” Id. However, this presumption is not conclusive. “It may be overcome if the court is persuaded that ‘the place of the tort ‘bears little connection’ to this legal action.’ ” Id.

Because the parties in this case agree that the location of the alleged wrong is significant, we will focus our analysis on whether the differences in the laws among Indiana, Virginia, and Mississippi would affect the outcome of this case. In their complaint, the plaintiffs have alleged that they are entitled to compensatory and punitive damages resulting from the hip replacement installation of DePuy’s ASRtm XL System. As the alleged manufacturer, the plaintiffs product liability claims also seek to subject DePuy to a strict liability standard. In its answer, DePuy raises a number of affirmative defenses, including the assertion that the ASR™ XL System conformed to the state of the art at the time.

Under Indiana’s Product Liability Act (“The Act”), “the plaintiff must show that (1) the product is defective and unreasonably dangerous, (2) the defective condition existed at the time the product left the defendant’s control, and (3) the defective condition is the proximate cause of the plaintiffs injuries.” Natural Gas Odorizing, Inc. v. Downs, 685 N.E.2d 155, 160 (Ind.Ct.App.1997); IND. CODE § 34-20-2-1. A product liability action may be based on the doctrine of strict liability, but it may not be brought against a seller of defective product unless that seller is also the manufacturer. Ind.Code § 34-20-2-3. “If a court is unable to hold jurisdiction over a particular manufacturer of a product ... then that manufacturer’s principle distributor or seller over whom a court may hold jurisdiction shall be considered ... the manufacturer of the product.” Ind.Code § 34-20-2-4.

In Virginia, products liability actions are not codified, but are rooted in common law. It does not matter whether the theory of liability against a manufacturer is labeled warranty or negligence, the standard of safety of goods is the same; the product must be fit for the ordinary purposes for which it is to be used. Jeld-Wen, Inc. v. Gamble by Gamble, 256 Va. 144, 501 S.E.2d 393, 396 (1998). “In order to recover under either of these theories against the manufacturer of a product, ‘a plaintiff must show (1) that the [product was] unreasonably dangerous either for the use to which [it] would ordinarily be put or for some other reasonably foreseeable purpose, and (2) that the unreasonably dangerous condition existed when the goods left the manufacturer’s hands.’ ” Id. (quoting Morgen Industries, Inc. v. Vaughan, 252 Va. 60, 471 S.E.2d 489, 492 (1996)). Virginia does not recognize strict liability as a ground for recovery in products liability cases. Harris v. T.I., Inc., 243 Va. 63, 413 S.E.2d 605, 609-10 (1992).

Under the Mississippi Products Liability Act, the plaintiff “has the burden of showing that the defect that allegedly was the proximate cause of the injury existed at the time that the product left the hands of the manufacturer, and that the defect rendered the product unreasonably dangerous. Accordingly, the proof must support that no material change in that product occurred after leaving the manufacturer’s control.” Wolf v. Stanley Works, 757 So.2d 316, 319 (Miss.Ct.App.2000); Miss. Code Ann. § 11-1-63 (2013). Following Restatement of Torts (Second) § 402A, strict liability is a ground for recovery against both manufacturers and sellers in Mississippi. Scordino v. Hopeman Brothers, Inc., 662 So.2d 640, 643 (Miss.1995).

Indiana’s conflict of law analysis shows a clear conflict between the jurisdictions concerning whether strict liability is available as a ground for recovery. Indiana recognizes strict liability, but only against manufacturers. Virginia does not recognize strict liability in product liability cases. Finally, Mississippi allows strict liability against both manufacturers and sellers. The availability, or lack thereof, of strict liability is significant enough to affect the outcome of this case. As a result, conflict of law analysis and T.R. 4.4(C)(3) would require this case to be heard where DePuy’s ASRtm XL System was implanted, which was Virginia or Mississippi.

IV. Additional Factors

Finally, with regards to Trial Rule 4.4(C)(4), the record reveals other factors supporting our decision that the trial court abused its discretion. First, we see no evidence in the record that Virginia or Mississippi are inadequate forums. In fact, during oral argument, the plaintiffs’ desire for trial in Indiana focused on securing an earlier trial date rather than any deprivation of their rights if trial took place elsewhere. There has been no showing by the plaintiffs that trial in them home forum will deprive them of any remedy or subject them to unfair treatment. See, e.g., Anyango, 971 N.E.2d at 662 (forum found to be adequate for the purposes of T.R. 4.4(C) “so long as the parties will not be deprived of all remedies or treated unfairly.”).

Second, as previously mentioned, federal courts are already managing pretrial activities related to the ASRtm XL System. Once pretrial proceedings are complete in the MDL, the district court will transfer cases to a proper venue for trial. Thus, Plaintiffs’ claim that dismissal from Indiana to another forum “would reward DePuy for the harm it caused to out-of-state plaintiffs, effectively depriving plaintiffs of any opportunity to litigate their case in a state court,” is not persuasive. (Plaintiffs’ Br. 16).

For the aforementioned reasons, we find that the trial court abused its discretion in denying DePuy’s motion to dismiss on forum non conveniens grounds. We reverse and remand to the trial court for issuance of the appropriate order dismissing this case for refiling in Virginia or Mississippi.

Reversed and remanded.

MATHIAS, J., and BRADFORD, J., concur.

      . At the federal level, Judge Katz of the United States District Court for the Northern District of Ohio has presided over multi-district litigation (MDL) proceedings involving the ASRtm XL System for nearly three years (Master Docket Number l:10-md-2197). Cases within a federal court’s subject matter jurisdiction may be filed directly in the federal MDL action. Upon completion of all pretrial proceedings, those cases will be transferred to a proper venue for trial.

      . Article IV, § 2 of our Federal Constitution (The Privileges and Immunities Clause) provides, "The citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states."
      Article IV, § 1 of our Federal Constitution (The Full Faith and Credit Clause) mandates that “[flull faith and credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” Section 1 of the Fourteenth Amendment of our Federal Constitution provides, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
      Article I, § 12 of our Indiana Constitution guarantees, "All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law....”
      Comity is a principle wherein the courts of one state or jurisdiction give effect to the laws and judicial decisions of another, not as a matter of obligation, but out of deference and respect. Black’s Law Dictionary 267 (6th ed. 1999).
      The Dormant Commerce Clause is the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce. Erwin Chemerinsky, Constitutional Law 401 (2002).
      Each of the provisions mentioned above has, at one time or another, been interpreted as placing a limitation upon a state’s ability to prevent nonresident plaintiffs from bringing claims into state courts when that claim could be heard within the courts of another state.

      . Wis. Stat. § 262.19(3).

      . Our Indiana Supreme Court noted in Anyango v. Rolls-Royce Corp., 971 N.E.2d 654, 656, n. 2 (Ind.2012) that the substantial injustice language "would conflict with the explicit discretionary authority granted to the trial court in Trial Rule 4.4(C) if a motion to dismiss could not be granted unless it was clear that litigation in Indiana would be so inconvenient that ‘substantial injustice’ would likely to result.”


source: Caselaw Access Project

author: ROBB, Judge.

license: Public Domain

text:
    Lori NICKLAS, Appellant-Defendant, v. VON TOBEL CORPORATION, Individually, and d/b/a Von Tobel Lumber; and Von Tobel Lumber Company, Inc., Appellee-Plaintiff.
    No. 64A03-1310-CC-429.
    Court of Appeals of Indiana.
    June 4, 2014.

      Sean E. Kenyon, Michael L. Meyer, Ho-eppner Wagner & Evans, Merrillville, IN, Attorneys for Appellant.
    Timothy C. Krsak, Douglas Koeppen & Hurley, Valparaiso, IN, Attorney for Ap-pellee.
   OPINION

ROBB, Judge.

Case Summary and Issue

Lori Nicklas (“Lori”) appeals the trial court’s grant of summary judgment in favor of Von Tobel Corporation (“Von To-bel”) and its denial of her summary judgment motion. Lori raises three issues for review, which we consolidate and restate as whether the trial court erred when it granted summary judgment in favor of plaintiff Von Tobel and against Lori after Von Tobel had obtained a judgment against her co-defendant, Shawn Nicklas (“Shawn”) in the same proceeding. Concluding summary judgment in favor of Von Tobel was proper, we affirm.

Facts and Procedural History

The facts in this case are undisputed. In July 2009, Lori and Shawn executed a promissory note in favor of Von Tobel with a principle amount of $35,000. The note was to be paid in full by January 15, 2012. When the note matured and a balance remained, Von Tobel sought to obtain a judgment on the note in the amount of $30,548.22 plus interest and attorney fees as permitted by the note’s terms. Von Tobel named both Shawn and Lori as defendants, as the two were jointly and severally liable to Von Tobel under the note. Shawn entered into an Agreed Judgment with Von Tobel for the full amount of the principal owed, in addition to interest and attorney fees, for a total of $34,696.89. After Lori filed her answer, Von Tobel moved for summary judgment against her, seeking a judgment on the principal and for interest and attorney fees. Lori filed a cross-motion for summary judgment arguing Von Tobel had been fully compensated through its settlement with Shawn, and was not entitled to any further recovery. After a hearing, the trial court granted summary judgment in favor of Von Tobel and denied Lori’s cross-motion for summary judgment. Lori now appeals.

Discussion and Decision

I. Standard of Review

When reviewing a summary judgment ruling, we apply the same standard as the trial court. F.B.I. Farms, Inc. v. Moore, 798 N.E.2d 440, 444 (Ind.2003). A party is entitled to summary judgment only upon a showing that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). All facts and inferences are to be construed in favor of the non-moving party. Meredith v. Pence, 984 N.E.2d 1213, 1218 (Ind.2013). When there are competing summary judgment motions, our analysis is unchanged: each motion will be considered separately and we will determine whether each moving party is entitled to judgment as a matter of law. Id.

II. Summary Judgment Grant in Favor of Von Tobel

Lori urges that the summary judgment grant in favor of Von Tobel was contrary to law because it effectively would allow Von Tobel to recover $73,552.85 collectively between Lori and Shawn on a debt with a principal balance of approximately $30,000. Lori makes three arguments to this point: 1) any claim against Lori was merged and extinguished by the agreed judgment with Shawn; 2) res judicata precluded Von Tobel from litigating the case further against Lori after the agreed judgment with Shawn had been entered; and 3) contract principles prohibit this type of recovery. Von Tobel, on the other hand, argues it is not seeking a double recovery; rather, it is merely exercising its rights under the contract to have the indebtedness adjudicated against either or both parties, and seeks only one satisfaction from the judgments.

A. Merger and Extinguishment

Lori first argues Von Tobel’s agreed judgment against Shawn merged and extinguished any claims Von Tobel had against Lori. Lori relies on Lawrence v. Beecher, 116 Ind. 312, 19 N.E. 143 (1888), for the proposition that “if a plaintiff names all obligors as defendants and desires to take judgment against all of them, the plaintiff should secure that judgment when it has the opportunity, or forever lose that right.” Appellant’s Brief at 15. However, the procedural posture of Lawrence is quite distinguishable from the present case. In Laurrence, the plaintiff/appellant sued a number of makers on a several promissory note, and a personal judgment was entered against one of the defendants. Id. at 144. The court then barred and foreclosed the equity of redemption against the other defendants. Id. The plaintiff/appellant then sued the appellee on the same promissory note. The court held that this type of collateral action is not permissible based on the doctrine of merger:

[H]ere the question comes up in a collateral action.... Here we are met by the question whether a plaintiff, having voluntarily elected to take judgment against all of several defendants then in court, can subsequently sue upon the cause of action on which that judgment was rendered. We can see no escape from the conclusion that the judgment operated as a merger of the whole cause of action against all of the defendants in court. The general rule undoubtedly is that a final judgment extinguishes and merges the cause of action.

Id. at 145. Thus, Lawrence is inapplicable to the present situation.

Similarly, Mutual Ben. Life Ins. Co. v. Bachtenkircher, 209 Ind. 106, 198 N.E. 81 (1935), is of no help to Lori. In that case, the court determined a promissory note executed by an individual and a bank who both agreed to pay on the note was a joint obligation. The court found there was only one contract by which both parties were liable, so the judgment against one joint party barred the claim against another. Id. at 111, 198 N.E. at 83. It has long been held, though, “that the rule that a judgment upon a joint obligation works a release of a joint obligor does not apply when the obligors’ liabilities are separate and several.” Consol. Rail Corp. v. Travelers Ins. Cos., 466 N.E.2d 709, 712 (Ind.1984) (citing Giles v. Canary, 99 Ind. 116 (1884)).

Von Tobel argues State ex rel. Griswold v. Roberts, 40 Ind. 451 (1872), supports its position that a judgment against one obli-gor upon a joint and several obligation does not effectuate a release of another obligor. Lori argues Roberts is inapplicable because the court was citing a statute that is no longer in effect. Lori is correct that the statute in Roberts is no longer in effect, but we find the legal principle is unchanged. In Roberts, the treasurer of DeKalb County and others executed a joint and several bond. The treasurer and the other makers were named as defendants in the same suit. After a jury trial, judgment was entered against the treasurer only, and in favor of the other defendants. The judgment in favor of the other defendants was reversed on appeal, and at the new hearing, the defendants moved to dismiss because the plaintiff had already taken final judgment against the treasurer who was jointly sued in the action. The trial court agreed, and dismissed the action because a judgment had already been entered against the treasurer.

On appeal, our supreme court analyzed a statute in effect at the time, which stated: “persons severally and immediately liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may, all or any of them, be included in the same action, at the option of the plaintiff.” Roberts, 40 Ind. at 454 (quoting § 20, 2 Gav. & ELRev.St. p. 50). The court concluded based on the statute that the judgment against one did not merge the several liabilities of the other defendants, even though they were also jointly liable. Though this statute is no longer in effect, we find it a precursor to the Indiana Trial Rules regarding joinder:

Rule 19(E)(1) Joint obligors. Joinder of all the parties to a joint and several obligation and to a joint obligation, including a partnership obligation, shall not be required, and joint or separate action may be brought against one or more of such obligors who shall be subject to permissive joinder as provided in Rule 20....
Rule 20(A)(2) All persons may be joined in one [1] action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of, or arising out of, the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action.

We conclude an agreed judgment against one obligor does not merge and extinguish the obligation of another person jointly and severally liable on the same contract. Therefore, Von Tobel was free to seek a judgment against Lori after the agreed judgment with Shawn had been entered.

B. Res Judicata

Lori next argues an entry of judgment against her is barred by res judicata in the form of claim preclusion. Lori claims the agreed judgment between Shawn and Von Tobel was the first final adjudication on the merits, and so there is a preclusive effect on Von Tobel’s subsequent claim against Lori.

The doctrine of res judicata generally prevents re-litigation of the same issue between the same parties after there has been a final adjudication on the merits. Indianapolis Downs, LLC v. Herr, 834 N.E.2d 699, 703 (Ind.Ct.App.2005), trans. denied. Four elements must be satisfied in order for res judicata, also known as claim preclusion, to apply:

1. The former judgment must have been rendered by a court of competent jurisdiction;
2. The former judgment was rendered on the merits;
3. The matter now at issue was, or could have been, determined in the prior action; and
4. The controversy adjudicated in the former action was between parties to the present action or their privies.

Id. Claim preclusion, though, is inapplicable in this case, and we need not dive into an analysis of the four elements to make this determination. We have already determined merger and extinguishment did not apply to the claim against Lori based on Shawn’s agreed judgment. As a result, there simply was no final judgment between Lori and Von Tobel until the summary judgment grant, and that is a necessary condition before beginning the claim preclusion analysis. Claim preclusion does not apply nor bar the entry of judgment against Lori and in favor of Von Tobel.

C. Contract Principles

Lori argues a party should not be placed in a better position than before the breach of contract and because the agreement with Shawn was for the entire amount owed, any additional judgment against Lori placed Von Tobel in a better position than at the time the contract was executed. The basic principle that a party is not entitled to be placed in a better position than he would have if the contract had not been breached is a well-established rule. Farah, LLC v. Architura Corp., 952 N.E.2d 328, 337 (Ind.Ct.App.2011). However, that is not the effect of two judgments being entered in this case; Von Tobel is entitled still only to one satisfaction on the debt. This merely allows Von Tobel the opportunity to recover from Lori and/or Shawn, as contemplated by the express terms of the contract.

Conclusion

Concluding Von Tobel’s claim against Lori was not extinguished by its agreement with Shawn, claim preclusion does not apply, and Von Tobel is not placed in a better position than if the contract had not been breached, we affirm.

Affirmed.

RILEY, J., and BRADFORD, J., concur.

      . At some point, Shawn and Lori separated and each acted individually to defend against Von Tobel’s claim. Shawn’s agreement with Von Tobel is not contested and is not part of this appeal. The amount Shawn agreed to pay also included monies owed under another contract to which Lori was not an obligor.

      . The record indicates that at the time the appeal was taken, Von Tobel had yet to actually receive any money from the agreement with Shawn.

      . The Indiana Rules of Trial Procedure replaced the statutes governing joinder of parties. Erie Ins. Co. v. George, 681 N.E.2d 183, 191 (Ind.1997).


author: RILEY, Judge.

text:
    Michael W. PALMBY, Appellant-Petitioner, v. Karen M. PALMBY, Appellee-Respondent.
    No. 32A04-1310-DR-506.
    Court of Appeals of Indiana.
    June 4, 2014.
    Rehearing Denied Aug. 7, 2014.

      Bradley L. Banks, Banks & Brower, LLC, Indianapolis, IN, Attorney for Appellant.
    Cynthia P. Helfrich, Brownsburg, IN, for Attorney for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Petitioner, Michael W. Palm-by (Michael), appeals the trial court’s denial of his Verified Petition for Revocation of Spousal Maintenance.

We affirm.

ISSUE

Michael raises three issues which we consolidate and restate as: Whether the trial court abused its discretion when it denied Michael’s request to revoke spousal maintenance which the parties had agreed upon and the trial court had incorporated in the final divorce decree.

FACTS AND PROCEDURAL HISTORY

Michael and Appellee-Respondent, Karen M. Palmby (Karen), were married on June 13,1981 and divorced on May 2, 2008. During the marriage, three children were born, two of whom were emancipated at the time of the divorce. The youngest child was of college age and not emancipated for purposes of college expenses. During the course of their marriage, Michael and Karen ran a family business where they both worked. Karen had worked at a daycare center for a short time, but mainly stayed home with the children.

The Agreement of Property Settlement entered into by Michael and Karen at the time of the divorce contained a provision for spousal maintenance in favor of Karen, which read

9. Spousal Maintenance

a. Purpose and Intent of this Article: It is the mutual desire of the parties to provide a continuing measure of income for Wife, receiving party, after the dissolution of the parties’ marriage. The payments made by Husband, paying party, are intended to qualify as contractual alimony as that term is defined in section 71(a) of the Internal Revenue Code of 1986 (the “Code”), as amended, and are intended to be includable in the gross income of the receiving party under section 71(a) of the Code and deductible by paying party under section 215(a) of the Code. All provisions of this article will be interpreted in a manner consistent with that intention,
b. Terms, Conditions and Contingencies:
1. Payments. Husband shall make and pay regular monthly alimony payments in the amount of one thousand five hundred dollars for twenty-four (24) months.
2. Term. The payments shall be for a period of twenty-four months commencing per paragraph 9(b)(3) with the last payment being on the 24th month.
3. [ ] Husband agrees to make spousal maintenance payments in the amount of One Thousand Five Hundred Dollars ($1,500.00) per month for a period of 2 years, or twenty-four (24) months, for a sum of Thirty Six Thousand Dollars ($36,000.00).
e. The payments shall be considered spousal maintenance as Wife has been out of the workforce for a period of time and needs additional time to rehabilitate herself, finding additional training to reenter the workforce.

(Appellant’s App. pp. 15-16).

At the time of the entry of the agreement, May 2, 2008, Michael was working as a realtor, earning approximately $120,000 per year. Over time, Michael’s income diminished to the point where Michael could no longer afford to rent his apartment and, in 2009, he moved in with his girlfriend. In 2012, Michael’s yearly earnings had shrunk to $1,200 and in 2013, Michael terminated his real estate license. After resigning as a realtor, Michael began working as a call center employee for RCI in Indianapolis, receiving an hourly wage of $9.45. He made an approximate amount of $50,000 in 2013.

During the pendency of the divorce, Karen became employed at Kohl’s Department Store. Shortly thereafter, she broke her arm, causing her to leave her employment for a while. Karen resumed her position in January 2009 and has since received a promotion, earning $15.36 per hour.

Since the parties divorced in 2008, Michael has failed to make the maintenance payments anticipated by the parties’ settlement agreement. On October 29, 2009, in response to Michael not making full payments, Karen filed a Verified Petition for Contempt. On December 16, 2009, the trial court approved the parties’ agreed entry showing that Michael had paid $7,000.00 in maintenance payments and continued to owe a total of $29,500.00 in payments. As a result, the trial court ordered Michael’s pay garnished at an amount of 10% until paid in full. After this agreed entry, Michael made another $5,333.64 in payments to Karen, with his last payment in September of 2012.

On August 5, 2013, Karen filed another Verified Petition for Contempt. That same day, Michael filed a Verified Petition for Revocation of Spousal Maintenance, requesting the trial court to revoke the spousal maintenance provisions of the settlement agreement because of a substantial and continuing change in his circumstances. On September 17, 2013, the trial court conducted a hearing on the parties’ Petitions. That same day, the trial court issued its Order, finding Michael in contempt and denying his Petition for Revocation of Spousal Maintenance but modifying the payment schedule. The trial court concluded, in pertinent part, that

8.Husband owes $24,299.36 in spousal maintenance to Wife.
4. Husband had a significant reduction in income while employed as a real estate agent.
5. On December 17, 2009, the Parties entered into an Agreed Entry that addressed the spousal maintenance issue wherein Husband’s wages would be garnished at a lesser amount than $1,500.00 per month. Husband changed employment twice without providing his work information to Wife so she' could have the garnishment order amended.
6. Husband testified that 2008 and 2009 were difficult financial years due to the real estate market. However, Husband entered into the property settlement agreement in the middle of 2008.
7. Wife relied on receiving these monthly funds from Husband.
8. Husband cannot reasonably afford to pay $1,500.00 per month.
9. Husband had the funds to make payments towards spousal maintenance in 2018 but failed to do so.
10. The parties entered into the property settlement agreement while represented by counsel.
11. If Wife knew Husband was not going to pay over $24,000.00 of spousal maintenance, it is reasonable and logical to believe other parts of the agreement would have been altered.
12. The Court finds that Husband is in contempt for failing to make a continued good faith effort to make spousal maintenance payments.
13. The Court denied Husband’s Petition to Revoke Spousal Maintenance.
14. The Court modified the payment schedule. Husband is [o]rdered to pay $200.00 per paycheck towards spousal maintenance. Husband’s attorney shall prepare an Income Withholding Order for the Court’s approval.

(Appellant’s App. pp. 9-10).

Michael now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Michael contends that the trial court abused its discretion in denying his Petition to Revoke Spousal Maintenance. Specifically, he asserts that the substantial and continuing change in his employment and financial circumstances warrants the revocation of the maintenance award. As we consider Michael’s argument, we note that the trial court’s order is a general judgment entered with findings. Sua sponte findings control only as to the issues they cover and a general judgment will control as to the issues upon which there are no findings. Zan v. Zan, 820 N.E.2d 1284, 1287 (Ind.Ct.App.2005). A general judgment entered with findings will be affirmed if it can be sustained on any legal theory supported by the evidence.

There are two ways in which a party to a divorce may be obligated to make spousal maintenance payments. Either the parties may provide for maintenance in a negotiated settlement agreement or the court may order maintenance payments in certain limited circumstances. Voigt v. Voigt, 670 N.E.2d 1271, 1275-76 (Ind.1996). A trial court may award only “three, quite limited” varieties of post-dissolution maintenance: spousal incapacity maintenance, caregiver maintenance, and rehabilitative maintenance. Id. at 1276. A court may order rehabilitative maintenance for no more than three years if it finds that a spouse needs support while acquiring sufficient education or training to get an appropriate job. See I.C. § 31-15-7-2(3). Additionally, the parties “may themselves provide for maintenance in settlement agreements where the court could not otherwise order it.” Voigt, 670 N.E.2d at 1277. Where the parties have contractually agreed to spousal maintenance, our supreme court has made it clear that courts should exercise authority to review settlement agreements with “great restraint,” so as not to interfere with contractual freedom. Id. Indeed, the Voigt court determined that “[w]here a court had no authority to impose the kind of maintenance award that the parties forged in a settlement agreement, the court cannot subsequently modify the maintenance obligation without the consent of the parties.” Id. at 1279-80. Subsequently, in Zan, this court concluded, as a logical outgrowth of Voigt, that where a settlement agreement rested on a ground on which the trial court could have ordered the maintenance in the absence of an agreement, a trial court may modify the agreement. Zan, 820 N.E.2d at 1288. Thus, the propriety of the trial court’s order modifying the maintenance in the instant case depends entirely upon the designation of the original award of maintenance it purports to modify — and to which the parties acquiesced in the settlement agreement.

Casting the spousal maintenance as rehabilitative maintenance, Michael contends that because Karen re-entered the workforce instead of seeking vocational training, the maintenance is not used as intended and should be revoked. Rehabilitative maintenance may not be awarded for more than three years from the date of the final decree and is intended to help a spouse “acquir[e] sufficient education or training to enable the spouse who is seeking maintenance to find appropriate employment.” I.C. § 31-15-7-2(3). Para-phrazing the language of the statute, the settlement agreement provided Karen with spousal maintenance for a period of twenty-four months, to “rehabilitate herself, finding additional training to reenter the workforce.” (Appellant’s App. p. 16). From the evidence presented during the modification hearing, we readily glean that even though Karen conceded that the spousal maintenance payments were intended to allow her to “obtain additional training or education,” she allocated Michael’s infrequent payments towards the payment of medical bills. She admitted that “had maintenance been regularly paid as was contemplated in the [pjroperty [settlement [ajgreement,” she would have “sought other employment, other training to gain employment.” (Transcript p. 16).

Therefore, because the settlement agreement rested on a ground on which the trial court could have ordered the maintenance in the absence of an agreement, the trial court had the authority to modify the instant agreement with respect to rehabilitative maintenance.

It is worth noting that the parties agreed to spousal maintenance for a period of twenty-four months, i.e., June 1, 2008 to May 1, 2010. In December 2009, approximately nineteen months into the twenty-four month period, Michael entered into an agreed entry, acknowledging he was in contempt for failure to make the payments as directed and the trial court modified the payment terms by garnishing his pay at an amount of 10% until paid in full. In other words, at the time the spousal maintenance terms were in effect, Michael did not request a modification based on a substantial and continuing change in circumstances, nor did he submit evidence reflecting this change during the relevant period.

Currently, although the spousal maintenance terms are no longer in effect, Michael’s failure to pay regularly has resulted in an accrued deficit of $24,299.36. Because the period during which the rehabilitative maintenance had to be paid has ended, the terms of the maintenance can no longer be modified; rather, only the payment terms of the accrued amount are modifiable. In the instant disputed modification, the trial court, finding that Michael had the funds to make payments towards the accrued spousal maintenance amount in 2013 but failed to do so, modified the payment terms, ordering him to pay $200.00 per paycheck towards the accumulated maintenance.

Mindful of the “great restraint” which we should exercise in reviewing settlement agreements, we cannot say that the trial court abused its discretion in denying Michael’s request to revoke the spousal maintenance and instead modified the payment terms of the accumulated rehabilitative maintenance. See Voigt, 670 N.E.2d at 1277.

CONCLUSION

Based on the foregoing, we conclude that the trial court did not abuse its discretion by denying Michael’s Petition to Revoke Spousal Maintenance.

Affirmed.

ROBB, J. and BRADFORD, J. concur.


author: BARTEAU, Senior Judge. BAILEY, Judge,

text:
    STATE of Indiana, Appellant-Plaintiff, v. Brishen R. VANDERKOLK, Appellee-Defendant.
    No. 79A04-1308-CR-407.
    Court of Appeals of Indiana.
    June 11, 2014.
    Rehearing Denied Sept. 2, 2014.

      Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
    Bruce W. Graham, Graham Law Firm P.C., Lafayette, IN, Attorney for Appellee.
   OPINION

BARTEAU, Senior Judge.

STATEMENT OF THE CASE

Community corrections officers searched home detention participant Jordan Sullivan’s residence and found contraband in the bedroom of his roommate Brishen Vanderkolk. Upon being charged with several offenses, Vanderkolk filed a motion to suppress. Evidence at the hearing showed that Sullivan had signed a waiver of his Fourth Amendment rights before beginning home detention and that the officers searched his residence to ensure he was complying with the program. The officers did not testify as to any reports of suspicious activity. The trial court granted the motion to suppress.

Caselaw from the U.S. Supreme Court as well as our Indiana courts leads us to conclude that Sullivan did not completely waive his Fourth Amendment rights. Because the Fourth Amendment required reasonable suspicion for the search, we affirm the court’s grant of Vanderkolk’s suppression motion.

ISSUES

To determine whether the trial court erred by granting the motion to suppress, we examine: (1) whether Vanderkolk may challenge the constitutionality of the search predicated on Sullivan’s waiver of his Fourth Amendment rights, and if so, (2) whether the search was justified by Sullivan’s waiver.

FACTS AND PROCEDURAL HISTORY

In April 2012, Sullivan began serving a sentence on home detention through Tippecanoe County Community Corrections. Before starting the program, he signed a form in which he “relinquish[ed]” his Fourth Amendment rights during his period of home detention:

The waiver of rights is limited to searches and seizures for any controlled substances, intoxicat[ing] liquor or deadly weapons as defined by Indiana law. I agree to submit to searches and seizures for such substances of my person, property and vehicle(s) at any time by any Community Corrections Staff, Law Enforcement Officer, and/or sentencing Court.
⅝ ⅜: ⅜ ⅞: ⅜ ⅜
I have been advised of my rights and understand that any Community Corrections staff, Law Enforcement Officer or Probation Officer may enter my residence at any time without prior notice to search upon probable cause.

State’s Ex. 1.

In December 2012, TCCC officers conducted a search of Sullivan’s residence to ensure he was complying with the program. One officer went up to the residence, made contact with someone there, and then signaled the other officers by radio that they could approach and begin searching the residence. As the other officers entered, a woman identified as Sullivan’s girlfriend was to the right, and to the left, Sullivan was descending a staircase and said he was checking to see if his roommate was home.

Upon entering, the officers immediately noticed an odor of marijuana or spice being smoked. They also thought they heard a door being closed somewhere in the residence. Based on their standard protocol, the odor of illegal drugs, and the uncertainty as to who else was there, they did a protective sweep of the entire house. They observed contraband in plain view in the basement and on the second floor, which consisted of a single bedroom.

After the sweep showed no one else was in the residence, the officers conducted their search. Contraband was collected from the basement, the first floor bedroom, the living room, and the second floor bedroom. The TCCC officers then contacted the Tippecanoe County Sheriffs Department to request a deputy to secure the evidence. The deputy arrived at the house, and the TCCC officers showed her the evidence. When she went outside to get her camera, she saw a man in a truck at the end of the driveway. As he started to back out, the deputy shined her light on him and talked with him. The man, later identified as Vanderkolk, said he lived in the second floor bedroom.

The State charged Vanderkolk with Class D felony maintaining a common nuisance, Class A misdemeanor dealing in marijuana, Class A misdemeanor possession of marijuana, and Class A misdemeanor possession of paraphernalia. Van-derkolk filed a motion to suppress. The evidence at the suppression hearing showed the TCCC officers searched the residence as a matter of protocol to ensure Sullivan’s compliance with the program:

Q I[t’s] my understanding that you came to Mr. Sullivan’s and Mr. Van-derkolk’s residence purely because you wanted to look around for safety or conduct — or compliance violations, is that correct?
A Yes.
Q Ok, so you hadn’t received information of possible illegal activity there?
A No sir.
Q DTF, like drug task force didn’t call and say we heard some suspicious things about this residence?
A No sir.
Q No neighbors were complaining about traffic or that type of thing out there?
A No sir.
Q Was this purely a random search for compliance and safety?
A Sir, I will state we don’t do random searches; we do a search typically on everyone who enters the program to ensure compliance and ensure there is nothing in the residence when they begin. I cannot remember if this was soon after he entered the program or later on, but we do typically search nearly everyone who enters our program.
Q Well, this wasn’t his initial search of the residence, was it?
A I don’t believe we searched him before this one.
Q Had [the lead officer] given you information that there were violations or problems at this house?
A No sir, I believe that maybe some comment of suspicious activity, but I cannot recall for definite. We did this search to ensure compliance and officer safety.
Q Are you saying you have a report of suspicious activity or you don’t know?
A I don’t know, sir.
Q Ok. So you can’t articulate any reason that you were at this residence other than you wanted to be?
A No sir, it was officer safety and ensuring compliance with the program.
Q Well, what were the officers[ ] concerned about, safety wise?
A Weapons, firearms, anything that can be used against us.
Q I understand that generalized concern; but did you have any specific knowledge or facts that there may be weapons in this particular house?
A No sir.
Q So you just showed up?
A Well—
Q For no reason other than you wanted to be there?
A As I said sir, we were ensuring compliance with the program.

Tr. pp. 58-60. The trial court granted the suppression motion. The State now appeals.

DISCUSSION AND DECISION

The State contends the trial court erred by granting Vanderkolk’s suppression motion. In reviewing a trial court’s ruling on a motion to suppress, we determine whether the record discloses substantial evidence of probative value that supports the trial court’s decision. State v. Washington, 898 N.E.2d 1200, 1203 (Ind.2008). We do not reweigh evidence. Id. The State, appealing from a negative judgment, must show the trial court’s grant of the suppression motion was contrary to law. Id.

I. MAY VANDERKOLK CHALLENGE THE SEARCH?

The State contends the trial court erred by granting the suppression motion because Vanderkolk did not have “standing” to challenge Sullivan’s waiver of his Fourth Amendment rights. It cites Polk v. State, 822 N.E.2d 239 (Ind.Ct.App.2005), trans. denied. In that case, Polk was a passenger in a car that was pulled over for a traffic violation, and the driver gave consent to search the car. This Court con-eluded that Polk lacked “standing” to challenge the constitutionality of the manner in which the police obtained the driver’s consent, noting that “Fourth Amendment rights are personal and may not be vicariously asserted.” Id. at 245.

The State asks us to conclude that Van-derkolk, like Polk, could not challenge the constitutionality of the search because Vanderkolk, like Polk, was not the person who gave consent.

However, Polk lacked “standing” because he had no reasonable expectation of privacy in the driver’s car, not because he was not the person who gave consent. This is the clear import of the case on which Polk relied, Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). There, the U.S. Supreme Court dispensed with the rubric of standing, instead subsuming it within the substantive analysis of a Fourth Amendment claim. See id. at 139, 99 S.Ct. 421 (“[T]he better analysis forthrightly focuses on the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.”). The focus of the inquiry was therefore “whether the challenged search or seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it.” Id. at 140, 99 S.Ct. 421. The Court explained:

A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed. And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule’s protections.

Id. at 134, 99 S.Ct. 421 (citations omitted).

Here, Vanderkolk had a reasonable expectation of privacy in the residence because he lived there. He may thus challenge the search on Fourth Amendment grounds. See Pollard v. State, 270 Ind. 599, 388 N.E.2d 496, 502-03 (1979) (Brown could not challenge constitutionality of car search where he was merely an earlier passenger and was not even present at time of search; on the other hand, Pollard could challenge search because, as husband of the owner, he had legitimate expectation of privacy in wife’s car).

II. WAS THE SEARCH JUSTIFIED BY SULLIVAN’S WAIVER?

In the alternative, the State contends the trial court erred by granting the suppression motion because Sullivan consented to his residence being searched at any time when he signed the TCCC waiver of his Fourth Amendment rights. Vander-kolk responds that, despite the waiver, the Fourth Amendment nonetheless required the search to be supported by reasonable suspicion.

Community corrections programs and probation are similar in that both serve as alternatives to commitment to the Department of Correction and both are ordered at the discretion of the trial court. Cox v. State, 706 N.E.2d 547, 549 (Ind.1999). As with probation, placement in a community corrections program is a matter of grace and a conditional liberty that is a favor, not a right. Id.

Because of this similarity, our analysis of the search issue is controlled by Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), and United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), both of which involved warrantless probationer searches.

In Griffin, a state regulation permitted probation officers to search a probationer’s home without a warrant as long as it was approved by a supervisor and there were reasonable grounds to believe contraband would be found. The Court upheld a probation officer’s warrantless search of a probationer’s residence pursuant to this regulation, concluding that the supervision of probationers was a “special need” justifying warrantless searches of probationers based on reasonable suspicion rather than probable cause. 488 U.S. at 873-76, 107 S.Ct. 3164.

Knights took a different approach. There, a probationer signed a document stating he would submit his “person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer.” 534 U.S. at 114, 122 S.Ct. 587. The Court upheld a detective’s warrantless search of the probationer’s residence, concluding, “When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable.” Id. at 121, 122 S.Ct. 587.

The Indiana Supreme Court recently summarized both approaches to warrant-less probationer searches:

[A] warrantless probation search under Griffin may be justified on the basis of reasonable suspicion to believe a probation violation has occurred because, among other things, supervision of probationers is necessary to ensure that probation restrictions are in fact observed, and that the community is not harmed by the probationer being at large. Griffin, 483 U.S. at 873-75, 107 S.Ct. 3164. By contrast, under Knights, even if there is no probationary purpose at stake, a warrantless search may be justified on the basis of reasonable suspicion to believe that the probationer has engaged in criminal activity and that a search condition is one of the terms of probation. Knights, 534 U.S. at 122, 122 S.Ct. 587.

State v. Schlechty, 926 N.E.2d 1, 6 (Ind.2010). In Schlechty, the Indiana Supreme Court upheld a warrantless search of a probationer’s car where it was conducted reasonably, supported by a search condition contained in his terms of probation, and supported by reasonable suspicion to believe the probationer had engaged in criminal activity. Id. at 8.

It is clear from these cases that reasonable suspicion must support a war-rantless search of a probationer or, here, a community corrections participant.

The State nonetheless cites Samson v. California, 547 U.S. 843, 857, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), in which the Court upheld the warrantless search of a parolee even in the absence of reasonable suspicion. But there, the Court added, “That some States and the Federal Government require a level of individualized suspicion is of little relevance to our determination whether California’s supervisory system is drawn to meet its needs and is reasonable, taking into account a parolee’s substantially diminished expectation of privacy.” Id. at 855, 126 S.Ct. 2193.

The Indiana Supreme Court in Schlechty concluded that this language strongly implied that suspicionless searches remained impermissible in jurisdictions requiring a level of individualized suspicion. 926 N.E.2d at 5 n. 5. It stated, “Thus it appears that at least parolee searches are an example of instances in which the contours of a federal constitutional right are determined, in part, by the content of state law.” Id. Had Samson been relevant to the analysis of Indiana warrantless probationer searches, the Schlechty Court would have upheld the search of the car on the mere fact it was owned by a probationer. Samson is inapplicable to this case.

The evidence at Vanderkolk’s suppression hearing showed that the TCCC officers believed Sullivan’s waiver justified suspicionless searches merely to ensure compliance. In this regard, the reason for the search was more akin to the “special needs” highlighted in Griffin. But the special need of supervising community corrections participants, while dispensing with probable cause, still required reasonable suspicion that evidence of Sullivan’s noncompliance would be found. The State presented no such evidence at the hearing. Because the search was not supported by reasonable suspicion, we conclude that Vanderkolk’s Fourth Amendment rights were violated. See Nowling v. State, 955 N.E.2d 854, 861 (Ind.Ct.App.2011) (search of probationer’s bedroom was not justified by special needs of probation system because officers had no reasonable suspicion that probation violation occurred), clarified on reh’g, 961 N.E.2d 34 (2012), trans. denied.

CONCLUSION

We therefore affirm the suppression.

BAILEY, J., concurs in result with separate opinion.

KIRSCH, J., dissents -without opinion.

BAILEY, Judge,

concurring in result.

The lead opinion holds as unconstitutional the fruits of the search of Vanderkolk’s room on the theory that the Community Corrections Officers’ search of the house was unreasonable. While I concur in the result, I reach my conclusion on a different basis.

Under the Fourth Amendment to the United States Constitution, as interpreted by our courts, warrantless searches and seizures inside a home are per se unreasonable except in certain circumstances. Krise v. State, 746 N.E.2d 957, 961 (Ind.2001) (citing Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). Where a search is conducted without a warrant, the State must bear the burden of proving that an exception to the warrant requirement existed at the time of the search. Id. There are numerous such exceptions. For example, evidence of a crime in plain view of a law enforcement officer is one such exception. See, e.g., Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), and Krise, supra. So, too, there is an exception to the warrant requirement where probable cause and exigent circumstances exist to permit a warrantless search. See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 740-41, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (noting that “no exigency is created simply because there is probable cause that a serious crime has been committed [and] application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause [for] only a minor offense”).

“A probationer’s home, like anyone else’s, is protected by the Fourth Amendment’s requirement that searches be reasonable.” Hensley v. State, 962 N.E.2d 1284, 1288 (Ind.Ct.App.2012) (citations and quotations omitted). And while voluntary and knowing consent to a search is another exception to the warrant requirement, Krise, 746 N.E.2d at 961, this court has held that waivers to Fourth Amendment rights as part of a probation program agreement are unconstitutional because such waivers allow probation officers to perform constitutionally unreasonable searches. Hensley v. State, 962 N.E.2d at 1286 n. 2. Special needs in administrative or other contexts may also permit a search with only reasonable suspicion that criminal activity may be occurring; most notably for our purposes, this has been held to be the case in the context of probation and community corrections programs. See U.S. v. Knights, 534 U.S. 112, 121-22, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (holding that a search of a probationer’s residence supported by reasonable suspicion is valid even when no probationary purpose is served); Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (holding as valid a search for probationary purposes and supported by reasonable suspicion).

Reasonable suspicion does not rise to the level of probable cause. State v. Renzulli, 958 N.E.2d 1143, 1146 (Ind.2011). In determining whether officers had reasonable suspicion, a court’s inquiry focuses on whether officers have “a particularized and reasonable basis for suspecting legal wrongdoing.” U.S. v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citations and quotations omitted). This requires more than “an inchoate and unparticularized suspicion or ‘hunch,’ ” but rather “specific reasonable inferences which [a law enforcement officer] is entitled to draw from the facts in light of his experience.” Terry v. Ohio, 392 U.S. 1, 28, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Courts look to the totality of the circumstances in reaching a determination on the existence of reasonable suspicion. Renzulli, 958 N.E.2d at 1146.

When reviewing a trial court’s grant of a motion to suppress evidence, our task on review is to determine “whether the record contains ‘substantial evidence of probative value that supports the trial court’s decision.’ ” State v. Gilbert, 997 N.E.2d 414, 417 (Ind.Ct.App.2013) (quoting State v. Washington, 898 N.E.2d 1200, 1203 (Ind.2008)). We do not reweigh evidence, and because the State appeals from a negative judgment, it must show that the trial court’s decision to suppress evidence was contrary to law. Id. While we defer to the trial court’s decisions on factual matters, we review de novo the trial court’s determination of reasonable suspicion for a war-rantless search. Sanders v. State, 989 N.E.2d 332, 334 (Ind.2013).

While Officer Rebecca Georgene did not testify at the hearing, the record suggests that she was the first of four Community Corrections Officers who made contact with Sullivan at his home. The other three other officers remained near their cars and out of view. The record then reveals that Officer Georgene signaled over the radio for Officers Adam Sowders, Kimberly Ledgerwood, and James Krogge to enter the house to conduct a protective sweep and search of the residence. After entering the house, Officer Sowders detected the scent of marijuana, and he saw Sullivan walking down the stairs that led to the attic where Vanderkolk’s bedroom was located. Sullivan indicated that he was checking to see whether Vanderkolk— whom he identified as his roommate — was present, but Vanderkolk was not there. Sullivan also indicated to the officers that his bedroom was on the first floor of the residence. Officers Sowders and Krogge conducted their sweep from the basement, through the first floor, and finally up to Vanderkolk’s bedroom, after being informed that Sullivan’s roommate was not present and that the attic room did not belong to Sullivan.

Absent evidence of reasonable suspicion, the officers were without authority to search the home. Officer Georgene, who signaled other officers to search the home, did not testify at the suppression hearing; Officers Sowders and Krogge did. Officer Sowders testified that Community Corrections had no specific information on illegal activity at the residence, but that a search had not yet been performed of the house Sullivan and Vanderkolk shared. And we have no evidence in the record that establishes what, if anything, Officer Georgene detected that caused her to order the search. Nor is there evidence in the record that establishes that any of the officers received Sullivan’s consent to search separate from the waiver Sullivan signed as part of the Community Correction program requirements — a waiver that, as pri- or cases have held, does not specifically afford a blanket consent to search without at least reasonable suspicion on the part of law enforcement.

Thus, I would conclude that the State did not meet its burden of proving the existence of the kind of specific, articulable basis necessary to support a finding of reasonable suspicion sufficient to enter the house Vanderkolk shared with Sullivan. Accordingly, I would affirm the trial court’s suppression of the evidence seized from Vanderkolk’s room during both the protective sweep and the later search. But because I reach this conclusion on a slightly different basis from that of the lead opinion, I respectfully concur in result.

      . Because the search was not supported by reasonable suspicion and thus violated Van-derkolk’s Fourth Amendment rights, we need not address the parties’ arguments about whether Sullivan had authority to consent to the search of Vanderkolk’s bedroom, whether the officers validly entered Vanderkolk’s bedroom during the protective sweep, or whether there was a violation of Article 1, Section 11 of the Indiana Constitution.


author: NAJAM, Judge.

text:
    Gabriel McQUAY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1311-CR-954.
    Court of Appeals of Indiana.
    June 12, 2014.

      Danielle L. Gregory, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Gabriel McQuay appeals his convictions for criminal confinement, as a Class D felony, and battery, as a Class A misdemeanor, following a bench trial. McQuay raises a single issue for our review, which we restate as whether the trial court abused its discretion when it allowed a police officer to testify to the victim’s out-of-court statements made to the officer. We affirm.

FACTS AND PROCEDURAL HISTORY

In the evening of June 5, 2013, Jerry O’Connor and his wife were driving in Indianapolis when they observed a car parked next to a curb with its door open and two people standing nearby. Because the O’Connors’ car windows were down, they heard a man and a woman arguing and yelling at each other. Jerry then saw the man, whom he later identified as McQuay, “push” the woman, R.S., into the car while “she was yelling and screaming that he was hurting her.” Transcript at 17. In particular, Jerry heard R.S. say, “he’s going to kill me.” Id. at 18. Jerry pulled his vehicle over about twenty-five yards away from the couple, got out of his car, and “yelled for him to stop hurting her.” Id. at 19.

Other people starting taking notice of the events, including Jill Andry. At the same time and location she observed a car “pulled over to the side with a man punching [a woman].” Id. at 37. Jill did not “get a good look at the man” but heard the woman “yelling ‘he’s trying to kill me, he’s trying to kill me, he took my purse’ ... over and over.” Id. at 37-38. Jill called 9-1-1, and she observed the man “t[ake] off running to ... an apartment complex” nearby. Id. at 38.

Jerry also observed McQuay go to the nearby apartment complex. Once McQuay had left the scene, Jerry approached the vehicle to check on R.S. Jerry observed that “she had some red marks on her,” that “she was hysterical,” and that she was visibly “shaken.” Id. at 22-23.

Indianapolis Metropolitan Police Department (“IMPD”) Officer Travis Williams arrived shortly thereafter. He approached R.S. and observed that she was “visibly upset. She was shaking. She was crying and she was speaking in very rapid movements as if she had been in some kind of struggle.” Id. at 43. R.S. identified herself to Officer Williams, and he then verified her identity with IMPD. Officer Williams then asked R.S. who her attacker was, and she identified McQuay. R.S. informed Officer Williams that McQuay had fled “through” a nearby apartment complex, but Officer Williams did not receive a tenant’s consent to search the area and he did not pursue a search warrant. Id. at 72.

On July 24, 2013, the State charged McQuay with criminal confinement, as a Class D felony; domestic battery, as a Class A misdemeanor; and battery, as a Class A misdemeanor. At the ensuing bench trial, Jerry and Jill testified to their observations and, over McQuay’s objection, Officer Williams testified that R.S. had identified herself and McQuay to him during the course of his investigation. The court found McQuay guilty of criminal confinement, as a Class D felony, and battery, as a Class A misdemeanor. The court then entered its judgment of conviction and sentence. This appeal ensued.

DISCUSSION AND DECISION

On appeal, McQuay asserts that the trial court abused its discretion when it admitted into evidence Officer Williams’ testimony regarding R.S.’s out-of-court identification of herself and McQuay to Officer Williams. In particular, McQuay asserts that Officer Williams’ testimony was inadmissible hearsay and that the admission of this testimony violated his Sixth Amendment right to confront a witness. Our standard of review of a trial court’s admission of evidence is an abuse of discretion. Speybroeck v. State, 875 N.E.2d 813, 818 (Ind.Ct.App.2007). A trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances before the court or if the court misapplies the law. See id.

Officer Williams’ testimony that R.S. identified herself and McQuay to him at the scene was not inadmissible hearsay. As our Supreme Court has explained:

Hearsay is an out of court statement offered to prove the truth of the matter asserted. Ind. Evidence Rule 801(c). It is inadmissible unless it falls under an exception. Evid. R. 802. Among the exceptions to the hearsay rule is: “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Evid. R. 803(2). Determining whether a statement constitutes an excited utterance is within the trial court’s discretion and its ruling will be reversed only for an abuse of that discretion. See Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind.1996).
For a hearsay statement to be admitted as an excited utterance, three elements must be shown: (1) a startling event, (2) a statement made by a declar-ant while under the stress of excitement caused by the event, and (3) that the statement relates to the event. Id. This is not a mechanical test. It turns on whether the statement was inherently reliable because the witness was under the stress of an event and unlikely to make deliberate falsifications. Id.; 13 Robert Lowell Miller, Jr., Indiana Practice § 803.102 (2d ed. 1995).

Jenkins v. State, 725 N.E.2d 66, 68 (Ind.2000).

Here, the State’s evidence demonstrates that R.S.’s statements identifying herself and McQuay to Officer Williams at the scene were excited utterances and, therefore, admissible statements. Jerry and Jill testified that they observed McQuay attacking R.S., which was a startling event for R.S. Jerry and Officer Williams testified that, immediately following the startling event, R.S. was “hysterical,” “shaken,” “visibly upset,” “crying,” and “speaking in very rapid movements.” Transcript at 22-23, 43. Thus, R.S.’s statements to Officer Williams were made “while under the stress of excitement caused by the event.” See Jenkins, 725 N.E.2d at 68. And R.S.’s identification of herself and McQuay relates to McQuay’s attack on her. Accordingly, we cannot say that the trial court abused its discretion when it concluded that R.S.’s statements to Officer Williams were excited utterances and therefore admissible pursuant to Indiana Evidence Rule 803(2). See, e.g., Sandefur v. State, 945 N.E.2d 785, 789 (Ind.Ct.App.2011) (“[The declarant’s] statement was made soon after she was injured, yelled at, and cornered. Her demeanor showed that she was still under stress, and her statement related to the startling event. Therefore, ... [her] statement fits the excited utterance exception.”).

Neither did Officer Williams’ testimony deny McQuay his Sixth Amendment right to confront R.S. As we have explained:

In 2004, the Supreme Court of the United States held that, “[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Crawford v. Washington, 541 U.S. 36, 68-69, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Out-of-court, testimonial statements are admissible at trial only if the declarant is unavailable to testify and the defendant has had a pri- or opportunity to cross examine the de-clarant. Id. at 59, 124 S.Ct. 1354.
“Testimonial” statements are, among other things:
“ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that de-clarants would reasonably expect to be used prosecutorially;” “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions;” and “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”
Jackson v. State, 891 N.E.2d 657, 659 (Ind.Ct.App.2008) (discussing Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354), trans. denied. However, the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354. Thus, if a statement is either nontestimonial or nonhearsay, the federal Confrontation Clause will not bar its admissibility at trial.

Williams v. State, 930 N.E.2d 602, 607-08 (Ind.Ct.App.2010) (footnotes omitted; alteration and omission original), trans. denied.

R.S.’s statements to Officer Williams at the scene were nontestimonial. As the United States Supreme Court has explained:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). “In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant.” Michigan v. Bryant, — U.S. —, 131 S.Ct. 1143, 1155, 179 L.Ed.2d 93 (2011). “To determine whether the ‘primary purpose’ of an interrogation is ‘to enable police assistance to meet an ongoing emergency,’ which would render the resulting statements nontestimonial, we objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties.” Id. at 1156 (citation omitted).

The crux of McQuay’s argument under the Sixth Amendment is based on Officer Williams’ subjective impressions at the scene. But this is not the correct analysis. Rather, we assess whether a defendant’s confrontation rights have been violated objectively. Id.

The circumstances in which an encounter occurs ... are clearly matters of objective fact. The statements and the actions of the parties must also be objectively evaluated. That is, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred.

Id.

McQuay’s argument aside, the facts here objectively demonstrate that the primary purpose of Officer Williams’ discussion with R.S. was to enable police assistance to meet an ongoing emergency. First, Officer Williams’ encounter with R.S. was at the crime scene rather than at the police station. See id. Second, because R.S.’s statements were excited utterances, they “are considered reliable because the declarant, in the excitement, presumably cannot form a falsehood.” Id. at 1157. Third, because McQuay had fled the scene of a violent attack and could not be located, a reasonable officer would have considered the threat to R.S., first responders, and the public ongoing. See id. at 1158. Fourth, almost immediately upon arriving at the scene Officer Williams asked R.S. her identity and the identity of her assailant. There is no evidence suggesting that Officer Williams told R.S. that he needed McQuay’s identification for purposes of prosecution, and there is no reason to think that “a conversation which beg[an] as an interrogation to determine the need for emergency assistance ... evolve[d] into testimonial statements.” Id. at 1159, 1161 (quotations omitted).

Finally, Officer Williams’ discussion with R.S. was informal. “[FJormality suggests the absence of an emergency and therefore an increased likelihood that the purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id. at 1160 (quotations omitted). Here, Officer Williams questioned R.S. in an “exposed, public area, prior to the arrival of emergency medical services, and in a disorganized fashion. All of those facts make this case distinguishable from the formal station-house interrogation in Crawford.” Id.

In sum, Officer Williams responded to a call of a woman being attacked. He did not know why, where, or when the attack had occurred at the moment of his response. Nor did he know the location of the attacker or anything else about the circumstances in which the crime had occurred. His request for R.S.’s name and the identity of her attacker was information that allowed Officer Williams to “assess the situation, the threat to [his] own safety, and the possible danger to the potential victim and the public, including to allow [him] to ascertain whether [he] would be encountering a violent felon.” Id. at 1166 (citations and quotations omitted). In other words, Officer Williams obtained “information necessary to enable [him] to meet an ongoing emergency.” Id. (quotations omitted).

Under an objective analysis, the circumstances of the encounter as well as the statements and actions of R.S. and Officer Williams indicate that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency. As such, R.S.’s identification of herself and MeQuay were not testimonial statements. The Confrontation Clause did not bar their admission at McQuay’s trial.

Affirmed.

VAIDIK, C.J, and BROWN, J., concur.

      . McQuay makes passing reference to Article 1, Section 13 of the Indiana Constitution, see Appellant’s Br. at 7, but McQuay in no way supports these references with cogent reasoning. As such, any attempt by McQuay to raise an independent argument on appeal under Article 1, Section 13 has been waived. See Ind. Appellate Rule 46(A)(8)(a).

      . The State also notes that Officer Williams arrived quickly on the scene, but that is not dispositive to the analysis under Jenkins.