author: FISHER, Senior Judge.

text:
    SHELBYVILLE MHPI, LLC, an Indiana Limited Liability Company, Petitioner, v. Anne THURSTON, in her official capacity as Assessor, Shelby County, Respondent.
    No. 49T10-1003-TA-14.
    Tax Court of Indiana.
    Nov. 5, 2012.

      Paul M. Jones, Thomas F. Schnellenber-ger, Matthew J. Ehinger, Ice Miller LLP, Indianapolis, IN, Attorneys for Petitioner.
    Marilyn S. Meighen, Meighen & Associates, P.C., Carmel, IN, Attorney for Respondent.
   FISHER, Senior Judge.

Shelbyville MHPI, LLC (MHPI) appeals the final determination of the Indiana Board of Tax Review upholding the assessment of its real property for the 2006 tax year. The issue for the Court to decide is whether the Indiana Board erred in upholding the assessment. The Court affirms.

FACTS AND PROCEDURAL HISTORY

At some point in 2004, MHPI offered to purchase the subject property, a 205-pad mobile home park situated on 51.04 acres in Shelbyville, Indiana. To facilitate the purchase, MHPI’s lender commissioned an appraisal (hereinafter “the Crown Appraisal”), which valued a portion of the park at $4.2 million. On December 17, 2004, MHPI purchased the entire park for $4,266,400.

For the 2006 tax year, the Shelby County Assessor assessed MHPI’s property at $4,988,300. MHPI appealed its assessment to the Shelby County Property Tax Assessment Board of Appeals (PTABOA) and based on some unspecified sales data, the PTABOA reduced MHPI’s assessment to $4,263,800.

On October 31, 2008, MHPI appealed to the Indiana Board, claiming that its assessment was still too high. On October 27, 2009, the Indiana Board held a hearing, during which both MHPI and the Assessor offered third party appraisals, completed in conformance with the Uniform Standards of Professional Appraisal Practice (USPAP), to support their respective positions. MHPI’s Appraisal estimated that the market value-in-use of its mobile home park was $2.9 million as of January 1, 2005. In response, the Assessor presented the Crown Appraisal, which valued the property at $4.2 million as of November 4, 2004. The Assessor also claimed that the fact that MHPI purchased the park for just over $4.2 million in December 2004 supported the assessment. On January 5, 2010, the Indiana Board issued a final determination upholding MHPI’s assessment because it found the Assessor’s evidentiary presentation more persuasive than MHPI’s evidentiary presentation.

On March 19, 2010, MHPI initiated this original tax appeal. The Court heard oral arguments on February 18, 2011. Additional facts will be supplied as necessary.

STANDARD OF REVIEW

The party seeking to overturn an Indiana Board final determination bears the burden of demonstrating its invalidity. Hubler Realty Co. v. Hendricks Cnty. Assessor, 938 N.E.2d 311, 313 (Ind. Tax Ct.2010) (citation omitted). Consequently, MHPI must demonstrate to the Court that the Indiana Board’s final determination is, for example, arbitrary or capricious, an abuse of discretion, contrary to law, or not supported by substantial or reliable evidence. See Ind.Code § 33-26-6-6(e)(l), (5) (2012).

ANALYSIS

On appeal, MHPI contends that the Indiana Board’s final determination must be reversed for two alternative reasons. First, MHPI claims that the Indiana Board’s final determination is contrary to law because it utilized an improper framework in reviewing its property tax appeal. Alternatively, MHPI claims that the Indiana Board should have completely rejected or significantly discounted the Assessor’s December 2004 sales evidence because MHPI demonstrated that it never would have paid over $4.2 million for the property had it known that Indiana’s re-trending process would cause the property taxes to “sky rocket.” (See Pet’r Reply Br. at 5-6; Pet’r Br. at 10-12.)

I.

A final determination of the Indiana Board is contrary to law if it violates any statute, constitutional provision, legal principle, or rule of substantive or procedural law. See John Malone Enter., Inc. v. Schaeffer, 674 N.E.2d 599, 606 (Ind.Ct.App.1996). MHPI maintains on appeal that the Indiana Board, in evaluating the record evidence, violated its own standard of review because it did not determine whether MHPI made a prima facie case or whether the Assessor rebutted its pri-ma facie case. (See Pet’r Reply Br. at 1-2.) MHPI is incorrect.

A petitioner makes a prima facie case during the administrative hearing process when it submits evidence that is “sufficient to establish a given fact and which, if not contradicted, remains sufficient.” See Long v. Wayne Twp. Assessor, 821 N.E.2d 466, 468 (Ind. Tax Ct.2005) (citation omitted), review denied. The respondent must then rebut the petitioner’s prima facie case to prevail. See id. While the Indiana Board’s final determination does not explicitly state that MHPI made a prima facie case or that the Assessor rebutted MHPI’s prima facie case, the Indiana Board’s final determination implicitly indicates that it reached those conclusions. Indeed, the Indiana Board explained that because the parties presented conflicting evidence regarding the value of MHPI’s mobile home park, it needed to weigh the evidence and determine which was most persuasive and rehable. (See Cert. Admin. R. at 105.) After analyzing the evidence, the Indiana Board then explained why it found the Assessor’s overall evidentiary presentation more persuasive than MHPI’s evidentiary presentation. (See Cert. Admin. R. at 105-09.) Accordingly, the Indiana Board did not violate its own standard of review in reviewing MHPI’s appeal and, therefore, the Court concludes that MHPI has not shown that the Indiana Board’s final determination is contrary to law.

II.

The next issue before the Court is whether the Indiana Board’s determination that the December 2004 sales evidence was probative as to the market value-in-use of MHPI’s property is arbitrary, capricious, or not based on substantial evidence. Probative evidence is “evidence sufficient to establish a given fact that, if not contradicted, will remain sufficient.” Meadowbrook N. Apts: v. Conner, 854 N.E.2d 950, 958 (Ind. Tax Ct.2005) (citation omitted). Indiana’s assessment manual provides that a taxpayer may rebut the presumption of correctness afforded to assessments through the presentation of sales information regarding the subject or comparable properties. 2002 Real Property Assessment Manual (2004 Reprint) (hereinafter “Manual”) (incorporated by reference at 50 Ind. Admin. Code 2.3-1-2 (2002 Supp.)) at 5. Conversely, an assessing official may also support the correctness of an assessment through the presentation of such evidence. See Kooshtard Prop. VI, LLC v. White River Twp. Assessor, 836 N.E.2d 501, 506 n. 6 (Ind. Tax Ct.2005), review denied.

The administrative record reveals that the manufactured home market was robust between 2004 and 2005. (See Cert. Admin. R. at 456, 463, 473-74, 497.) In fact, the market was characterized as one in which investor demand routinely outweighed supply. (See Cert. Admin. R. at 473-74, 497.) The demand for such property did not begin to decrease until 2008. (Cert. Admin. R. at 190.) MHPI purchased the mobile home park in an arm’s length transaction in December 2004 for just over $4.2 million. (See, e.g., Cert. Admin. R. at 300-01.) Furthermore, despite the imminence of Indiana’s re-trending process that required assessing officials to adjust real property assessments to reflect the six-year difference in effective valuation dates, MHPI assumed, when it purchased the property, that its assessment and associated property tax liability would remain relatively constant. (See Pet’r Br. at 10-12 (footnote added).) See also Ind.Code § 6-1.1-4-4.5 (2006) (amended 2009); Manual at 2; 50 Ind. Admin. Code 21-3-3(a)-(b) (2006) (see http://www.in.gov/legislative/ iac). MHPI’s incorrect assumption cannot dispel the record evidence, which not only indicates that the December 2004 sales evidence reflected both the robustness and stability of the manufactured home market for the 2006 tax year, but also shows what MHPI believed the property to be worth at the time of purchase. Accordingly, while MHPI’s current complaints regarding its “sky rocketing” property taxes are indicative of buyer’s remorse, they do not require the complete rejection or substantial discounting of the December 2004 sales evidence. Consequently, the Court must conclude that the Indiana Board did not abuse its discretion in either considering the December 2004 sales evidence or in finding it probative as to the mobile home park’s market value-in-use for the 2006 tax year.

CONCLUSION

The final determination in this case reveals that the Indiana Board, as an impartial adjudicator, accepted the parties’ evi-dentiary presentations, considered and weighed their quality, and ultimately concluded that the Assessor’s evidentiary presentation corroborated the assessment, which best reflected the market value-in-use of MHPI’s mobile home park. The Court finds no basis for reversing the Indiana Board’s conclusion and, therefore, its final determination is AFFIRMED.

      . The Crown Appraisal describes the subject property as a 199-pad mobile home park consisting of ± 47.7 acres. (See Cert. Admin. R. at 400-40, 530-31.)

      . In 2006, Indiana’s real property assessments were to reflect a property’s market value-in-use (i.ethe value of a property "for its current use, as reflected by the utility received by the owner or a similar user, from the property”) as of January 1, 2005. See Ind.Code § 6 — 1.1—4—4.5 (2006) (amended 2009); 2002 Real Property Assessment Manual (2004 Reprint) (incorporated by reference at 50 Ind. Admin. Code 2.3-1-2 (2002 Supp.)) at 2; 50 Ind. Admin. Code 21-3-3 (2006) (see http://www.in.gov/legislative/iac).

      . MHPI also complains that the Assessor’s use of the Crown Appraisal was improper and that the Appraisal lacked probative value because it was significantly flawed. (See Pet'r Br. at 7-10.) The Court, however, need not address these complaints to resolve the matter at hand.

      . MHPI suggests that its misunderstanding of Indiana’s re-trending process negates the probative value of the December 2004 sales evidence. (See Pet’r Reply Br. at 5-6; Pet’r Br. at 10-12.) The Court, however, is not persuaded.

      . The Indiana Board also found that MHPI’s Appraisal was deficient because "the work was done more than 4½ years after the valuation date” and it was prepared for litigation purposes. (See Cert. Admin. R. at 106-08 ¶¶ 53, 56.) These conclusions were erroneous: absent a showing of some relevant physical change in the property, the date upon which an appraisal is completed has no bearing on its probative value. Similarly, the fact that an appraisal was prepared for litigation purposes, without something more, does not render it non-probative. Nonetheless, the Court finds these errors are harmless, given the totality of the record evidence and the Indiana Board’s conclusions thereto.


source: Caselaw Access Project

author: BRENT E. DICKSON, Chief Justice.

license: Public Domain

text:
    In the Matter of Jacob P. DUNNUCK, Respondent.
    No. 18S00-1201-DI-2.
    Supreme Court of Indiana.
    Nov. 7, 2012.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

BRENT E. DICKSON, Chief Justice.

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: In 2010 and 2011, Respondent kept both client funds and personal funds in his trust account because the Internal Revenue Service had imposed a levy on his personal checking account. On February 20, 2011, he wrote a check on his trust account to the Commission for Continuing Legal Education, which notified the Disciplinary Commission of the improper use of the trust account. On April 21, 2011, Respondent withdrew $3200 from the trust account, apparently believing this amount to be personal funds. This resulted in an overdraft of $22.48, which he covered the day after he was notified of it.

Aggravating and mitigating facts. The parties cite the following fact in aggravation: Respondent’s actions resulted in delay of the government’s collection of taxes. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent was cooperative with the Commission and has retained a certified public accountant to assist him in managing his trust account; and (3) Respondent has served his community by volunteering to represent fellow veterans in criminal cases.

Violation: The parties agree that Respondent violated Indiana Professional Conduct Rule 1.15(a), which prohibits failure to hold property of a client separate from lawyer’s own property.

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 six months, beginning January 21, 2013, with 60 days actively served and the remainder stayed subject to completion of at least one year of probation. The Court incorporates by reference the terms and conditions of probation set forth in the parties’ Conditional Agreement, which include:

(1) Respondent shall complete a continuing legal education course on trust fund management, submit his trust fund to audit by an independent certified public accountant, and submit quarterly audit reports to the Commission.
(2) If Respondent violates his probation, the stayed suspension will be actively served with automatic reinstatement, and additional discipline may be imposed if appropriate for acts in violation of his probation.

Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). Notwithstanding the expiration of the minimum term of probation set forth above, Respondent’s probation shall remain in effect until it is terminated pursuant to a petition to terminate probation filed under Admission and Discipline Rule 23(17.1).

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 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: BRADFORD, Judge.

text:
    Fred C. FEITLER, Mary Anna Feitler, and The Feitler Family Trust, Appellants/Defendants/Counterclaim Defendants/Cross-Claim Defendants, v. SPRINGFIELD ENTERPRISES, INC., Appellee/Plaintiff/Counterclaim Defendant/Cross-Claim Defendant, J. Laurie Commercial Floors, LLC, d/b/a Jack Lauries Floor Designs, Appellee/Counterclaim Plaintiff/Cross-Claim Plaintiff/Third-Party Plaintiff/Cross-Claim Defendant, and JM Woodworking Company, Appellee/Third-Party Defendant/Cross-Claim Plaintiff.
    No. 17A04-1206-PL-297.
    Court of Appeals of Indiana.
    Nov. 7, 2012.

      James 0. Waanders, Indianapolis, IN, Donald J. Stuckey, Auburn, IN, Attorneys for Appellants.
    Stephen J. Harants, Miller & Harants, New Haven, IN, Attorney for Appellee Springfield Enterprises, Inc.
    Jeremy J. Grogg, Burt, Blee, Dixon, Sutton & Bloom, LLP, Fort Wayne, IN, Edmund P. Kos, Fort Wayne, IN, Attorneys for Appellee J. Laurie Commercial Floors, LLC.
    W. Erik Weber, Mefford, Weber and Blythe, PC, Auburn, IN, Attorney for Ap-pellee JM Woodworking Company.
   OPINION

BRADFORD, Judge.

At some point in mid-2010, Fred and Mary Anna Feitler, who were the sole beneficiaries of a land trust that owned real estate in DeKalb County, contracted with Cedar Creek Homes (“CCH”) to build a house on the property. Among other things, the Feitlers and CCH agreed that no mechanic’s lien could attach to the property in the event of nonpayment. CCH engaged several subcontractors, including Springfield Enterprises, J. Laurie Commercial Floors, LLC, and JM Woodworking Company, to work on the house. In February of 2011, before the house was completed, CCH informed all concerned that it was ceasing operations and would not be completing the house. When the dust settled, it appears that all subcontractors except Springfield, J. Laurie, and JM were paid off, and all three ultimately became involved in litigation against the Feitlers and the land trust. J. Laurie and JM argued that they should be able to hold mechanic’s liens against the property in question, while all three former subcontractors contended that they should be able to secure money judgments against the Feitlers. The trial court agreed with all of these arguments and entered summary judgment in favor of all three subcontractors on each of these claims.

On appeal, the Feitlers and the land trust contend that neither J. Laurie nor JM should be able to hold a mechanic’s lien against the real estate and also that the trial court erred in entering summary judgment in favor of the subcontractors on the question of personal liability. We agree that neither J. Laurie nor JM can hold a mechanic’s lien against the real estate and also conclude that the question of the Feitlers’ personal liability to the subcontractors should go to trial.

FACTS AND PROCEDURAL

HISTORY

A. Facts

The Feitlers reside in and created the Feitler Family Trust (“the Trust”) in De-Kalb County, which is also where the real estate that is the subject of this litigation (“the Property”) is located. Mary Anna and Fred Feitler are the sole co-trustees and sole beneficiaries of the Trust, which was created on November 1, 2007. In November of 2007, the Property was transferred from Mary Anna to the Trust. On July 7, 2009, the Feitlers entered into a no-hen agreement (“the Agreement”) with CCH, a contractor hired to build a home on the Property for a contract price of $478,225.00. The Agreement listed the Feitlers as the owners of the Property. On July 9, 2009, the Agreement was recorded in DeKalb County. On July 31, 2009, the Trust conveyed the Property back to the Feitlers via a trustee’s deed. Also on July 31, 2009, the Feitlers executed a mortgage on the Property in favor of Three Rivers Federal Credit Union as security for a $350,000.00 loan. The mortgage and trustee’s deed were recorded on August 7, 2009. On December 23, 2009, the Feitlers conveyed the Property back to the Trust, and the quit-claim deed was recorded on December 30, 2009. On or about February 2, 2010, CCH notified Ap-pellees and the Feitlers that it was ceasing business operations, would not complete work on the Property, and would make no further payments to Appellees. In response to a later interrogatory, Three Rivers indicated that it had issued four draws of $91,645.00 each to CCH as of February 2, 2010, for a total of $366,580.00.

Between January 7 and 29, 2010, J. Laurie, a subcontractor to CCH, provided certain labor and materials to the Property, specifically flooring, some of which was in place as of February 2, 2010. On February 11, 2010, J. Laurie executed a pre-lien notice of intention to preserve mechanic’s lien rights, which notice was recorded the next day. Also on February 11, 2010, J. Laurie sent a notice of personal liability pursuant to Indiana’s personal liability notice statute (“the PLN statute”) to the Feitlers and the Trust. On March 5, 2010, J. Laurie executed a notice of mechanic’s lien, which was recorded three days later. The trial court found that the value of materials and services J. Laurie provided was $21,318.30. On April 7, 2010, the Feit-lers caused Three Rivers to pay J. Laurie $4213.62 for flooring materials on the property but not installed as of February 2, 2010.

Springfield subcontracted with CCH to install siding, soffits, and gutters on the Property, providing what the trial court found to be $27,103.36 of materials and services before February 2, 2010. On February 2, 2010, Springfield sent the Feitlers a letter notifying them that failure to pay for work performed might result in the assertion of mechanic’s lien rights. On February 3, 2010, Springfield executed a notice of mechanic’s lien, which was recorded on February 5. On February 10, 2010, Springfield sent the Feitlers a notice of personal liability pursuant to the PLN statute.

JM subcontracted with CCH to install cabinets on the Property, which were partially installed by February 2, 2010, ultimately providing what the trial court, found to be $21,318.30 in materials and services. On or about February 2, 2010, JM owner John Lengacher discussed the matter with the Feitlers, and Fred guaranteed payment for the cabinets. The Feit-lers made assurances that they would specifically contract with JM to complete the cabinet installation. The cabinet installation was soon completed, and the Feitlers gave Lengacher further assurances that JM would be paid for its work. On February 5, 2010, Lengacher issued an invoice to the Feitlers in the amount of $22,774.95. Fred eventually notified JM that it would not be paid. On February 22, 2010, JM sent the Feitlers a notice of personal liability pursuant to the PLN statute. On February 26, 2010, JM executed a notice of mechanic’s lien, which was recorded the same day.

B. Procedural History 5

On March 4, 2010, Springfield filed a complaint to foreclose its mechanic’s lien and for damages, naming the Feitlers, the Trust, CCH, and Three Rivers as defendants. On April 30, 2010, the Feitlers and the Trust filed a cross-claim against Three Rivers. On June 14, 2010, J. Laurie moved to intervene, and, on July 28, 2010, filed a cross-claim against the Feitlers, the Trust, CCH, and Three Rivers; a counterclaim against Springfield; and a third-party complaint against JM and the DeKalb County Treasurer. On September 10, 2010, JM intervened and filed cross-claims against CCH, the Trust, Three Rivers, the Feitlers, Springfield, J. Laurie, and the DeKalb County Treasurer.

On April 13, 2011, J. Laurie filed for partial summary judgment, seeking to foreclose on its mechanic’s lien and judgment against the Feitlers pursuant to the PLN statute. On May 20, 2011, Springfield filed for partial summary judgment, seeking judgment against the Feitlers pursuant to the PLN statute. On June 1, 2011, JM filed for partial summary judgment, seeking to foreclose on its mechanic’s lien and judgment against the Feitlers pursuant to the PLN statute. On May 14, 2012, the trial court entered partial summary judgment in favor of J. Laurie, Springfield, and JM, ruling that (1) J. Laurie’s and JM’s mechanic’s liens were valid, (2) the Feitlers were personally liable to J. Laurie for $19,756.46 plus pre- and post-judgment interest, (3) the Feitlers were personally liable to Springfield for $31,053.46, and (4) the Feitlers were personally liable to JM for $22,774.95 plus pre- and post-judgment interest.

DISCUSSION AND DECISION

Summary Judgment Standard . of Review

When reviewing the grant or denial of a summary judgment motion, we apply the same standard as the trial court. Merchs. Nat’l Bank v. Simrell’s Sports Bar & Grill, Inc., 741 N.E.2d 383, 386 (Ind.Ct.App.2000). Summary judgment is appropriate 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. Id.; Ind. Trial Rule 56(C). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. Id. To prevail on a motion for summary judgment, a party must demonstrate that the undisputed material facts negate at least one element of the other party’s claim. Id. Once the moving party has met this burden with a prima facie showing, the burden shifts to the nonmoving party to establish that a genuine issue does in fact exist. Id. The party appealing the summary judgment bears the burden of persuading us that the trial court erred. Id.

I. Whether the Trial Court Erred in Ruling that J. Laurie’s and JM’s Mechanic’s Liens Were Valid

Appellants contend that neither J. Laurie nor JM can hold mechanic’s liens on the Property. JM argues that it reached a separate agreement with the Feitlers to complete its work and so may hold a mechanic’s lien in its own right, while Appellants contend that JM’s failure to file a pre-lien notice prevents them from holding a mechanic’s lien. J. Laurie argues that the Agreement should not be enforced, as the Feitlers signed it in their individual capacities and were identified as the owners of the Property when, in fact, the Trust, as the holder of legal title, was the only entity that qualified as an “owner” at the time. Appellants contend that the Feitlers qualify as owners pursuant to the mechanic’s lien and that the Agreement is therefore binding on J. Laurie.

Resolving these issues will require us to consider the language of the Indiana mechanic’s lien statute. “The interpretation of a statute is a question of law reserved for the courts.” Scott v. Irmeger, 859 N.E.2d 1238, 1239 (Ind.Ct.App.2007).

A statute should be construed so as to ascertain and give effect to the intention of the legislature as expressed in the statute. In so doing, the objects and purposes of the statute in question must be considered as well as the effect and consequences of such interpretation. When interpreting the words of a single section of a statute, this court must construe them with due regard for all other sections of the act and with regard for the legislative intent to carry out the spirit and purpose of the act. We presume that the legislature intended its language to be applied in a logical manner consistent with the statute’s underlying policy and goals. Rupert v. State, 717 N.E.2d 1209, 1210 (Ind.Ct.App.1999).

Fuller v. State, 752 N.E.2d 235, 237-38 (Ind.Ct.App.2001). “Our initial inquiry is whether the statute is clear and unambiguous on its face.” Ind. Fam. & Soc. Servs. Admin, v. Radigan, 755 N.E.2d 617, 622 (Ind.Ct.App.2001). “Construction is warranted only where a statute is susceptible to more than one interpretation.” Id.

A. JM

JM designated uncontradicted evidence that, after learning that CCH was no longer going to work on the property, it reached a separate agreement with the Feitlers to complete its work. Consequently, JM argues, it no longer had the status of a subcontractor and may therefore hold a mechanic’s lien as a contractor. Appellants do not dispute that the Feitlers entered into a separate agreement with JM to complete its work, but contend that JM’s failure to file a pre-lien notice pursuant to Indiana Code section 32 — 28—3—1(i) prevents it from holding a mechanic’s lien in any event.

Indiana Code section 32-28-3-1 provides, in part, that “a contractor ... for ... the erection, alteration, repair, or removal of ... a house ... may have a lien ... to the extent of the value of any labor done or material furnished[.]” Ind.Code § 32-28-3-l(a); -1(b). Indiana Code section 32-28-3-1(i) provides that

(i) A person, firm, partnership, limited liability company, or corporation that sells or furnishes on credit material, labor, or machinery for the original construction of a single or double family dwelling for the intended occupancy of the owner upon whose real estate the construction takes place to a contractor, subcontractor, mechanic, or anyone other than the owner or the owner’s legal representatives must:
(1) furnish the owner of the real estate:
(A) as named in the latest entry in the transfer books described in IC 6-1.1-5-4 of the county auditor; or
(B) if IC 6-1.1-5-9 applies, as named in the transfer books of the township assessor (if any) or the county assessor;

with a written notice of the delivery or labor and the existence of lien rights not later than sixty (60) days after the date of the first delivery or labor performed; and

(2) file a copy of the written notice in the recorder’s office of the county not later than sixty (60) days after the date of the first delivery or labor performed.
The furnishing and filing of the notice is a condition precedent to the right of acquiring a lien upon the real estate or upon the improvement constructed on the real estate.

(Emphasis added).

JM notes that the mechanic’s lien statute treats contractors and subcontractors differently in some respects and also that its direct dealings with the Feitlers satisfied what it claims is the purpose of subsection (i), which is to put the Feitlers on notice. While both of these statements may be true, as far as they go, subsection (i), at least, makes no distinction between contractors and subcontractors, and its plain language makes the filing of a pre-lien notice a condition precedent to the right to hold a lien with no provision for exceptions to this rule. JM points to no authority suggesting that we can simply ignore the plain language of subsection (i), and our research has discovered none. Consequently, we conclude that the trial court erred in determining that JM may hold a lien on the Property.

B.J. Laurie

Indiana Code section 32-28-3-1 provides, in part, that “a subcontractor ... for ... the erection, alteration, repair, or removal of ... a house ... may have a lien ... to the extent of the value of any labor done or material furnished[.]” Ind.Code § 32-28-3-1(a); -1(b). An owner of real estate and a principle contractor, however, may enter into a no-lien agreement, such as the Agreement here, pursuant to subsection (e) of the mechanic’s lien statute:

a contract ... for the construction, alteration, or repair of a [building or structure that is intended to contain or contains only one (1) dwelling unit] ... may include a provision or stipulation in the contract of the owner and principal contractor that a lien may not attach to the real estate, building, structure or any other improvement of the owner.

Ind.Code § 32-28-3-l(e) (bracketed material from Ind.Code § 22-12-l-5(a) definition of “Class 2 structure”).

Moreover, the no-lien contract will be valid against subcontractors if the following conditions are met:

The contract must:
(1) be in writing;
(2) contain specific reference by legal description of the real estate to be improved;
(3) be acknowledged as provided in the case of deeds; and
(4) be filed and recorded in the recorder’s office of the county in which the real estate, building, structure, or other improvement is situated not more than five (5) days after the date of execution of the contract.

Ind.Code § 32-28-3-l(f).

As we have noted, “[t]he clear purpose of the statute is to provide record notice of the no-lien contract to subcontractors, materialmen, and other individuals who, in the absence of such an agreement, would be entitled to place a mechanic’s lien on the premises.” Fordeck-Kemerly Elec., Inc. v. Helmkamp, 591 N.E.2d 1035, 1038 (Ind.Ct.App.1992) (citing previous version of Indiana’s mechanic’s lien statute), trans. denied. As previously mentioned, the Agreement was executed and recorded by the Feitlers when legal title to the Property was held by the Trust. The questions here are whether this was sufficient to put J. Laurie on record notice of the Agreement and whether the Feitlers qualify as “owners” for purposes of the mechanic’s lien statute.

1. Record Notice

We conclude that the Agreement, although not technically compliant with Indiana Code section 32-28-3-1’s requirements, was sufficient to place potential subcontractors on record notice that a no-lien contract was in effect. Appellants designated uncontradicted evidence establishing that even the most cursory search of the DeKalb County Recorder’s computerized database, which has been in use since June 25, 2009, reveals the existence of the Agreement attached to the Property. On July 23, 2011, Deborah A. Rafine went to the DeKalb County Recorder’s office and searched for the following terms and real estate description: “Feitler, Fred[,]” “Cedar Creek Homes, Inc.[,]” “Feitler, Fred (Trust)[,]” and “S:26 T:33N R:12E Q:SE[.]” Appellant’s App. p. 447. All four searches revealed the existence of the Agreement, that it was recorded on July 9, 2009, that CCH and Fred were parties to it, and that it pertained to the Property. Moreover, Appellants designated evidence that a September 9, 2009, title insurance commitment notes the existence of the Agreement. We conclude that the Agreement, as executed and recorded, was sufficient to place potential subcontractors on record notice of its existence.

2. Feitlers as “Owners”

The second question is whether the Feitlers can be considered “owners” for purposes of the mechanic’s lien statute, despite not holding legal title to the Property when the Agreement was executed. If so, the Agreement is valid and may be enforced against J. Laurie. Appellants argue that “owners” are not limited to legal title holders for purposes of the mechanic’s lien statute and that they, as sole beneficiaries of the Trust, qualify. J. Laurie contends essentially that only the holder of the legal title is an owner under the mechanic’s lien statute and that the Feitlers were not owners when they executed the Agreement. We agree with Appellants.

As we have noted, “[t]here is nothing in our mechanic’s lien statutes which indicates that the word ‘owner’ was used in a narrow sense, meaning only owner of the fee[.]” Fletcher Ave. S & L Ass’n v. Roberts, 99 Ind.App. 391, 396, 188 N.E. 794, 796 (1934). Indeed, relevant statutory language supports the conclusion that the word “owner” is intended to be interpreted somewhat broadly. Indiana Code section 32-28-3-2(a) provides that

The entire land upon which the building, erection, or other improvement is situated, including the part of the land not occupied by the building, erection, or improvement, is subject to a lien to the extent of the right, title, and interest of the owner for whose immediate use or benefit the labor was done or material furnished.

(Emphasis supplied).

The Roberts court, analyzing similar language in a predecessor statute to section 32-28-3-2, noted that the General Assembly’s use of the words “right” and “interest” would be rendered superfluous if “owner” were to be defined only as the holder of legal title. Roberts, 99 Ind.App. at 396, 188 N.E. at 796 (interpreting the phrase “the entire land ... shall be subject to lien to the extent of all the right, title and interest owned therein by the owner thereof ...” (emphases in Roberts )). Thankfully, section 32-28-3-2 also helps us to identify the “owner” from among potential candidates, providing that mechanic’s liens apply to those “for whose immediate use or benefit the labor was done or material furnished.”

We have little trouble concluding that the Feitlers qualify as “owners” under the mechanic’s lien statute, even though the Trust held legal title to the Property when the Agreement was executed and recorded. Put simply, the Feitlers were the persons who ordered the construction of a new home and for whose immediate use the labor was done and material furnished. Whatever their legal status vis-a-vis the Property, the Feitlers were going to live in the new house and walk the floors installed by J. Laurie, not the legal entity the Trust.

We hardly break new ground today, because in holding that the Feitlers are owners under the mechanic’s lien statute, we explicitly apply the rule, formulated in a similar context, which was accepted and adopted by the Roberts court in 1934:

In Hines v. Hollingsworth-Young Hardware Co. (1917), 178 Ky. 233, 237, 198 S.W. 716, the Court of Appeals of Kentucky determined whether or not a cestui que trust, for whose benefit a trustee was holding real estate under an express trust, was an “owner” of the real estate within the meaning of mechanics’ and materialmen’s liens law of that state (Chap. 79, Sec. 2463, Carroll’s Ky. Statutes), and in that case, that court said:

“As a general rule, a mechanic’s or materialman’s lien may be imposed upon whatever interest the individual, who contracts for the work or materials, may own in the property, upon which the work is done or the materials used, whether the interest of such individual is a legal or equitable one. The lien may attach to an equitable interest in property[.]”

Roberts, 99 Ind.App. at 396, 188 N.E. at 795. Because the Feitlers, as sole beneficiaries of the Trust, had an equitable interest in the Property, they qualify as owners under Indiana’s mechanic’s lien statute. As such, the Agreement is valid and binding on J. Laurie, rendering it incapable of holding a mechanic’s lien on the Property.

II. Whether the Trial Court Erred in Ruling that the Feitlers are Personally Liable to J. Laurie, Springfield, and JM

Appellants argue that there is no designated evidence establishing any amounts of money owed to CCH at the time notices of personal liability were sent to Appellees, which would preclude personal liability to Appellees arising under the PLN statute. Indiana Code section § 82-28-3-9, which is found under the chapter pertaining to mechanics’ liens, provides in part:

(a) This section applies to a:
(1) subcontractor;
(2) lessor leasing construction and other equipment and tools, regardless of whether an operator is also provided by the lessor;
(3) journeyman; or
(4) laborer;
employed or leasing any equipment or tools used by the lessee in erecting, altering, repairing, or removing any house, mill, manufactory or other building, or bridge, reservoir, system of waterworks, or other structure or earth moving, or in furnishing any material or machinery for these activities.

“Enforcement of a ‘mechanics’ lien’ is one of two statutory mechanisms that Indiana law provides for subcontractors that have not been paid by their contractors to seek payment from construction project owners.” Mercantile Nat. Bank of Ind. v. First Builders of Ind., lnc., 774 N.E.2d 488, 489 (Ind.2002) (citing lnd.Code §§ 32-8-3-1 through -8), “The second mechanism, although located in the Indiana Code chapter dealing with mechanics’ liens, is completely separate.” Id. “It imposes ‘personal liability’ on project owners in favor of subcontractors that have not been paid by their contractors^]” Id. “A subcontractor’s rights under the PLN Statute are viewed as an additional or alternative remedy to the subcontractor’s rights under the Mechanics’ Lien Statute and to any other remedies the subcontractor may have against its contractor.” R.T. Moore Co., Inc. v. Slant/ Fin Corp., 966 N.E.2d 636, 640-41 (Ind.Ct.App.2012) trans. denied. The PLN statute “ ‘provides that upon notice to the owner by a subcontractor ... of the subcontractor’s claim against the contractor, ... the owner shall be liable to the subcontractor for that claim up to the amount that the owner owes the contractor.’ ” Controlled Demolition, Inc. v. F.A. Wilhelm Constr. Co., 84 F.3d 263, 265 (7th Cir.1996) (quoting Coplay Cement Co. v. Willis & Paul Group, 983 F.2d 1435, 1436 (7th Cir.1993)). Put another way, “recovery can be had only from funds owed by the owner to the contractor for work done on his property and if he has already paid all of the money due to the general contractor, he cannot be forced to pay a second time.” Indpls. Power & Light Co. v. Todd, 485 N.E.2d 632, 635 (Ind.Ct.App.1985).

To strip the parties’ arguments to their essentials, Appellants contend that the designated evidence establishes that CCH was paid off at the time of the notices and that the Appellees therefore have no claim under the PLN statute against them, while Appellees contend that the designated evidence conclusively shows that CCH was not, in fact, paid off when the notices were sent. We cannot agree with either side, concluding that there is a genuine issue of material fact regarding the question, and so remand for trial.

Between February 11 and 22, 2010, Ap-pellees sent notices of personal liability to the Feitlers. Among other things, Appellants designated Fred’s affidavit, in which he averred that “no amount was due by the Feitlers to Cedar Creek Homes, Inc. under the Construction Contract at the time of the notices of personal liability.” Appellant’s App. p. 467. If found true, this assertion would preclude liability under the PLN statute. For their part, Ap-pellees point to designated evidence that the price of the contract between the Feit-lers and CCH was $478,225.00 and that, as of the date of CCH’s cessation of business, Three Rivers had disbursed $366,580.00 to it. In our view, this evidence, along with the absence of any specific evidence tending to show additional payments made against the contract price, raises the reasonable inference that the contract was not, in fact, paid off when CCH ceased doing business. In short, both sides of the issue have designated evidence that would, if believed, carry the day on the question of liability pursuant to the PLN statute. Consequently, this issue is not suitable for disposition by summary judgment.

Springfield contends that we should simply ignore Fred’s “conclusory” statement that the contract had been paid off before the personal liability notices were sent out. We decline Springfield’s invitation. The case on which Springfield relies for this proposition, Coghill v. Badger, 430 N.E.2d 405 (Ind.Ct.App.1982), says only that “a court considering a motion for summary judgment should disregard inadmissible information contained in supporting or opposing affidavits[,]” not “conclusory” ones. Id. at 406 (emphasis added). In any event, Fred’s statement was not conclusory because it was not based on any conclusion: the averment that the contract price had been satisfied before the notices were sent is a clear and unequivocal assertion of fact.

SUMMARY

We conclude that the trial court erred in concluding that JM and J. Laurie could hold mechanic’s liens against the property. In JM’s case, JM failed to issue the mandatory pre-lien notice, and in J. Laurie’s case, J. Laurie is bound by the Agreement. Consequently, we remand with instructions to enter summary judgment in favor of Appellants on these points. We further conclude that the trial court erred in entering summary judgment in favor of all three Appellees on the question of personal liability pursuant to the PLN statute. Concluding that there exists a genuine issue of material fact on whether the Feit-lers satisfied the construction contract with CCH before Appellees sent notices of personal liability, we remand for trial on this question.

We reverse the judgment of the trial court and remand with instructions.

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

      . J. Laurie designates evidence that on February 3, 2010, it ordered a title search on the Property, which did not disclose the Agreement, the July of 2009 transfer of the Property from the Trust to the Feitlers, or the December of 2009 transfer of the Property from the Feitlers back to the Trust. (Appellant’s App. 277-80). J. Laurie points to the results of this search as evidence that "the No-Lien Agreement was not properly recorded or indexed in the Trust’s name.” J. Laurie’s Br. p. 11. While this may be true, it does not help J. Laurie much. Given Appellants’ designated evidence and J. Laurie’s failure to designate the parameters of the title search, we may safely assume that J. Laurie’s title search did not include searching for CCH, which was properly indexed, or the Property.

      . The version of this passage found in the www.westlaw.com database differs from the official version as found in the Indiana Appellate Court Reports by replacing the second appearance of the word "owner” with "owners.”

      . The version of this passage found in the www.westlaw.com database differs from the official version as it appears in the Indiana Appellate Court Reports by replacing the ellipses with triple asterisks.

      . The version of this passage found in the www.westlaw.com database contains no fewer than eleven alterations to, additions to, and deletions from the original passage as it appears in the Indiana Appellate Court Reports. Rather than list them, the www.westlaw.com passage is reproduced here for comparison:
      In Hines v. Hollingsworth-Young Hardware Co. (1917) 178 Ky. 233, 198 S.W. 716, 717, 4 A.L.R. 1018, the Court of Appeals of Kentucky determined whether or not a ces-tui que trust, for whose benefit a trustee was holding real estate under an express trust, was an "owner” of the real estate within the meaning of mechanic's and ma-terialmen’s liens law of that state (chapter 79, § 2463, Carroll’s Ky. Statutes), and in that case, that court said:
      "As a general rule, a mechanic’s or mate-rialman’s lien may be imposed upon whatever interest the individual who contracts for the work or materials may own in the property upon which the work is done or the materials used, whether the interest of such individual is a legal or equitable one. The lien may attach to an equitable interest in property!)]”
      While, as with the differences noted in footnotes 2 and 3, the meaning of the passage does not seem to have changed, it goes without saying that we will continue to use caution when citing to non-official sources.


author: KIRSCH, Judge. MAY, Judge,

text:
    John FOX, Appellant-Plaintiff, v. NICHTER CONSTRUCTION COMPANY, INC., Appellee-Defendant.
    No. 03A01-1202-SC-52.
    Court of Appeals of Indiana.
    Nov. 14, 2012.
    Rehearing Denied Feb. 25, 2013.

      Ronald E. Weldy, Weldy & Associates, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Thomas M. Fisher, Solicitor General, Heather Hagan McVeigh, Deputy Attorney General, Rick J. Ruble, Deputy Commissioner of Labor and General Counsel, Indiana Department of Labor, Indianapolis, IN, Attorneys for Amicus Curiae.
    Scott C. Andrews, Coriden, Coriden, Andrews & Glover, LLC, Columbus, IN, Attorney for Appellee.
   OPINION

KIRSCH, Judge.

John Fox (“Fox”), the employee-claimant, appeals from the trial court’s denial of his motion to correct error from an order of dismissal with prejudice, contending that the trial court erred in dismissing his wage claim for lack of subject matter jurisdiction.

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

Fox, who was employed by Nichter Construction Company, Inc. (“NCC”), alleged that he left his employment with NCC voluntarily. After leaving NCC, Fox filed an Application For Wage Claim (“the Application”) with the Department of Labor (“the DOL”) in which he sought payment for vacation time that had allegedly accrued during his employment with NCC. The Application contained the following pertinent language:

Pursuant to IC 22-2-9-5, I hereby assign to the Commissioner of Labor all my rights, title and interest in and to the above certified claim for processing in accordance with the provisions of IC 22-2-9-1, et seq.

Appellant’s App. at 22.

The DOL sent a letter to NCC setting forth a deadline for NCC’s response. NCC timely responded that Fox was a part-time employee and was ineligible for vacation pay. NCC supplied documents in support of its position. The day after receiving NCC’s response, the DOL sent a letter to Fox stating that it “ha[d] been investigating the complaint” and found that Fox “w[as] not a full time employee” and was “ineligible to receive vacation payout.” Id. at 32.

Fox filed a pro se action as a small claim in Bartholomew Superior Court. NCC failed to appear at the small claims trial date, and a default judgment was entered on behalf of Fox on November 5, 2010. On November 8, 2010, NCC filed a motion to set aside the default judgment and a motion to dismiss for lack of jurisdiction. NCC argued that Fox did not have standing to pursue his small claims action because his wage claim had been assigned to the DOL, and Fox had not obtained a referral letter from the Attorney General referring his claim back to him. NCC also argued that the trial court lacked jurisdiction because the DOL had already made the determination that Fox was a part-time employee who was ineligible for vacation pay. On April 4, 2011, the trial court entered its order setting aside the default judgment and dismissing Fox’s case with prejudice for lack of subject matter jurisdiction.

Thereafter, Fox retained counsel, who faxed a letter to the DOL requesting that the wage claim be referred to Fox’s counsel. That same day Fox’s counsel filed a motion to correct error. In the motion, Fox argued that before counsel was hired, Fox had submitted his claim against NCC with the DOL thinking that was the appropriate course of action. However, Fox believed that he was entitled to accrued vacation pay because he was a full-time employee who voluntarily quit his employment with NCC after giving two-weeks notice. Fox’s counsel attached an amended complaint to the motion in which he claimed entitlement to the vacation pay under the Wage Payment Statute.

Fox’s counsel further stated in the motion that should the small claims court find that Fox’s claim did fall under the Wage Claims Statute, the alleged standing issue had been resolved or soon would be resolved. He asserted that he had requested a referral of Fox’s claim from the DOL, and that the referral would likely be made within two weeks. After Fox’s counsel received the referral letter from the DOL on May 23, 2011, he faxed the letter to the small claims court and to opposing counsel. The small claims court held a hearing on the motion to correct error on December 2, 2011, and later entered an order denying the motion to correct error. Fox now appeals.

DISCUSSION AND DECISION

The Wage Payment Statute and the Wage Claims Statute provide different procedural frameworks for different categories of claimants who have wage disputes. St. Vincent Hosp. & Health Care Ctr., Inc., v. Steele, 766 N.E.2d 699, 705 (Ind.2002). We have previously stated the following about the Wage Claims Statute and the Wage Payment Statute:

Claimants who proceed under the Wage Claims statute may not file a complaint with the trial court. Rather, the wage claim is submitted to the Indiana Department of Labor. The Wage Claims statute references employees who have been separated from work by their employer and employees whose work has been suspended as a result of an industrial dispute. By contrast, the Wage Payment statute applies to current employees and those who have voluntarily left employment, either permanently or temporarily. The Wage Payment statute does not require a claimant to submit his or her claim to the Indiana Department of Labor before filing suit. E & L Rental Equip., Inc. v. Bresland, 782 N.E.2d 1068, 1070 (Ind.Ct.App.2003)(internal citations omitted). The issue presented in this appeal is the issue discussed in Justice Sullivan’s dissent to the denial of a petition to transfer from this court’s decision in Quimby v. Becovic Management Group, Inc., 946 N.E.2d 30 (Ind.Ct.App.2011)(dissent from denial of transfer reported at 962 N.E.2d 1199 (Ind.2012)). Therefore, it is necessary to discuss this court’s opinion in Quim-by.

There, the claimant, Quimby, who voluntarily left her employment, made an application for wage claim -with the DOL. Her application included the statement that she assigned her claim to the DOL. The DOL investigated her claim and found that certain deductions were not properly made and directed Becovic, to pay Quimby $590.39. Becovic sent a check in that amount to Quimby, and she cashed it.

Thereafter, Quimby filed an action with the trial court against Becovic under the Wage Payment Statute and alleged that Becovic had not paid wages and commissions she had earned and had not paid her for vacation time she had not used. The trial court granted Becovic’s motion to dismiss on the grounds that it lacked subject matter jurisdiction and that Quimby had not stated a claim upon which relief could be granted. Quimby appealed the trial court’s decision.

A panel of this court found that the trial court did not err by dismissing her action. First, we held that since Quimby had assigned her claim to the DOL, she was no longer a real party in interest. Quimby v. Becovic Mgmt. Grp., Inc., 946 N.E.2d 30, 33 (Ind.Ct.App.2011), and cited to our previous decision in E & L Rental Equip., Inc. v. Gifford, 744 N.E.2d 1007 (Ind.Ct.App.2001). This Court further noted that since Quimby voluntarily left her employment she should have brought her claim under the Wage Payment Statute. Therefore, she need not have brought her claim to the DOL. Nonetheless, since the DOL accepted her claim and obtained a resolution for her, she could not raise the same claim in court if she was dissatisfied with the result obtained by the DOL. Id. at 34. We concluded that since the DOL, the real party in interest, had not ratified, substituted, or joined in the action, the remedy was dismissal. Id.

After her petition for rehearing was denied by this court, Quimby filed a petition for transfer to the Indiana Supreme Court. Transfer was denied, but Justice Sullivan dissented with opinion. In his dissent, in which Justice Rucker concurred, Justice Sullivan, stated the following:

The facts of this case do not fall neatly into these well-settled categories. Anna Quimby filed her claim after she had voluntarily left her employment so her dispute fell under the Wage Payment Statute. But before she filed her complaint in court, she sought the DOL’s assistance, even though she was not required to do so. At issue here is the effect of her submitting her claim to the DOL before filing this lawsuit.
Quimby argues that she could not have assigned her claim to the DOL because the DOL is only authorized to take by assignment claims under the Wage Claims Statute and her claim is under the Wage Payment Statute. Specifieally, she argues that the DOL can only take by assignment under Indiana Code section 22-2-9-5 those claims upon which the Wage Claims Statute has empowered the Commissioner of Labor to act under Indiana Code section 22-2-9-4(a), which gives to the Commissioner of Labor a duty to investigate claims falling under the Wage Claims Statute. Becovic responds that the plain language of Indiana Code section 22-2-9-5 does not limit the types of claims the DOL may take by assignment, and it cites an Opinion of the Attorney General from 1941 and [E & L Rental Equip., Inc. v. ] Gifford, 744 N.E.2d [744 N.E.2d 1007,] 1010 [ (Ind.Ct.App.2001) ], in support of this position.
The plain language of Indiana Code section 22-2-9-5 suggests that the DOL may take by assignment claims like Quimby’s, or at least it does not expressly prohibit the DOL from doing so. On the other hand, that section is part of the Wage Claims Statute, which suggests that assignment might be limited to only those claims. See Roberts v. Sankey, 813 N.E.2d 1195, 1198 (Ind.Ct.App.2004)( location of statute within Code helpful in determining legislative intent), trans. denied. Moreover, I note that the purpose (or at least the effect) of the administrative exhaustion requirement under the Wage Claims Statute is to create a barrier to court, Lemon v. Wishard Health Servs., 902 N.E.2d 297, 301 (Ind.Ct.App.2009), trans. denied, and assignment to the DOL of claims falling under that statute serves that end. The same cannot be said for claims falling under the Wage Payment Statute, which may be brought directly in court.
I believe that we should grant transfer in this case to determine whether claims under the Wage Payment Statute may be assigned to the DOL, in part because it does not appear that the DOL itself is clear on this question. The DOL did not indicate in any of the materials that it sent to either Quimby or Becovic that it was the assignee of Quimby’s claim. Rather, it referred to its services as “mediation” and even suggested that Quimby file the very lawsuit giving rise to this appeal. Neither the instructions attached to the DOL’s electronic “Application For Wage Claim” nor the frequently asked questions on the DOL’s website acknowledge that it is taking these claims by assignment. See Wage Claim Instructions & Application (2009), available at http://www.in.gov/dol/files AVageClaimInstructionsApp092407 Corrected.pdf (last visited Feb. 9, 2012)(stating the DOL “accepts Wage Claims as a service to resolve wage disputes”); DOL: Wage & Hour FAQs, http://www.in.gOv/dol/2345.htm# 104 Oast visited Feb. 9, 2012)(noting that current employees or those who have voluntarily separated may either file a wage claim or file a lawsuit). And, the language on its form states that the claim is being assigned for “processing in accordance with the provisions of [the Wage Claims Statute],” so it might very well be that the DOL only intends to take by assignment claims under that statute.
There are likely many other claimants in Quimby’s position — claimants that do not have to but nevertheless seek the DOL’s assistance with their wage disputes. Because the Court has decided not to grant transfer, I urge the DOL to examine this question and if it agrees with the Court of Appeals that in such circumstances it takes these claims by assignment, to revise its documents to make that clear to both the employee and employer, or if it concludes contrary to the decision of the Court of Appeals that it does not take these claims by assignment, to revise its form to remove this language.

962 N.E.2d at 1200-01.

In this case, Fox alleges that he voluntarily left his employment with NCC after giving a two-week notice. He, like Quim-by, could have proceeded by bringing an action in small claims court, but sought DOL’s assistance in resolving the dispute instead. Without opining on the merits of Fox’s claim, the DOL has supplied this Court with its position regarding its forms and the assignment and reassignment of claims presented to it.

The DOL provides an online process for workers to complete and sign an Application for Wage Claim. See Indiana Department of Labor, Online Wage Claim Form, http://www.in.gov/dol/2671.htm. (last visited on Oct. 3, 2012). The claimant may obtain a paper form of the application, or may print an electronic version, which is available in portable document format. If a claim is for less than $6,000, the DOL may take assignment of the claim. Ind. Code § 22-2-9-5(a).

According to the DOL, prior to April 27, 2012, every Application for Wage Claim form contained the assignment language previously set forth in this opinion, in Quimby, and in E & L Rental Equipment. Therefore, claimants who submitted and signed the form, whether proceeding under the Wage Claim Statute or the Wage Payment Statute assigned their claim to the DOL. By statute, when the wage claim is submitted to the DOL it then becomes “the duty of the commissioner of labor to enforce and to insure compliance with the provisions of this chapter, to investigate any violations of any of the provision of this chapter, and to institute or cause to be instituted actions for penalties and forfeitures provided under this chapter.” Ind. Code § 22-2-9-4(a). The DOL Commissioner may exercise the duty, or “may refer claims for wages under this chapter to the attorney general, and the attorney general may institute civil actions on behalf of the claimant or may refer the claim to any attorney admitted to the practice of law in Indiana.” Ind.Code § 22-2-9-4(b).

If the DOL chooses to resolve the claim instead of making a referral “[t]he commissioner of labor may hold a hearing to satisfy himself as to the justice of any claim, and he shall cooperate with any employee in the enforcement of any claim against his employer in any case whenever, in his opinion, the claim is just and valid.” Ind.Code § 22-2-9-4(a). However, in practice, the DOL does not hold hearings on wage claims. Instead, the DOL notifies the employer of the claim in writing and gives the employer two weeks to mail a check directly to the claimant or dispute the amount claimed. Indiana Department of Labor, Online Wage Claim Form, http://www.in.gOv//dol/2734.htm (last visited Oct. 3, 2012). If neither the claimant nor the DOL receives a response from the employer, then a final notice is sent to the employer providing for a one-week period of time in which to respond. Id. If the employer fails to respond to the final notice, then the DOL sends a copy of the wage claim file to the claimant along with a letter recommending that the claimant consult with an attorney or pursue the claim in court. Id.

If the employer disputes the claim, however, the DOL will make a determination based upon the law and the documentation provided by the parties. Id. The determination is made by a non-attorney employee of the DOL since the DOL does not employ administrative law judges, and the determination is made based upon a paper record. It is the DOL’s position that the determination does not represent formal findings, nor is it binding on the parties. If the DOL cannot make a determination, the claimant “will receive notice along with a letter recommending that [he or she] consult an attorney or pursue [the] claim in the appropriate court.” Id.

The DOL contends that it does not provide a formal claim resolution process and is not required to do so by law. The DOL considers the administrative process it provides to be more in the nature of mediation than a formal administrative review, and is not subject to judicial review.

Although the claimants who are involuntarily separated from their employment must submit their claim to the DOL first before proceeding to court, it is the DOL’s practice to accept all claims regardless of whether they arise under the Wage Claims Statute or the Wage Payment Statute. St. Vincent Hosp., 766 N.E.2d at 705 (claimant under Wage Claims Statute must submit claim first with DOL). The DOL has adopted this approach because it is consistent with the DOL’s statutory authority and promotes judicial economy by allowing all wage claimants the opportunity to resolve their wage disputes at the administrative level first. Further, the DOL contends that there is nothing in either the Wage Claims Statute or the Wage Payment Statute to prevent all claimants from submitting their claims to the DOL. The DOL argues that it benefits both the parties and trial courts to allow all claimants to attempt to resolve their disputes administratively. When the DOL is able to resolve the claims to the satisfaction of both the claimant and the employer, then there is no need to present the claim in court.

One of the problems, however, which is illustrated by the situation in Quimby and in the present case, is a claimant’s inability to sue his or her employer in the event the DOL’s efforts at resolving the dispute prove to be unsuccessful. Under the holdings in Quimby and E & L Rental Equipment, once a claimant has “assigned” his or her claim to the DOL, the claimant cannot bring an action in court because the claimant is no longer the real party in interest. Quimby, 946 N.E.2d at 34; E & L Rental Equip., 744 N.E.2d at 1011. The holdings make sense if one assumes that the claimant’s claim remains assigned to the DOL after the DOL has completed its process, which it considers to be an administrative mediation, and returns the file to the claimant. This is not the DOL’s view of the posture of the claim once this process is completed.

The DOL’s position is that when it is unable to resolve the claim, the claimant “will receive notice along with a letter recommending [he or she] consult an attorney or pursue [the] claim in the appropriate court.” Indiana Department of Labor, Online Wage Claim Form, http://www.in. gov//dol/2734.htm (last visited Oct. 3, 2012). The DOL considers the notice to be a reassignment of the claim to the claimant. However, the notices do not make that intention clear.

At the urging of Justice Sullivan in his dissent from the denial of transfer in Quimby, the DOL has examined the question and has concluded that it will no longer accept assignment of wage claims under either the Wage Claims Statute or Wage Payment Statute unless the claimant requests that the DOL do so. The DOL has removed the assignment language from its Application for Wage Claim form. See http://www.in.gov/dol/filesAVageClaim InstructionsApp092407Corrected.pdf (last visited Oct. 3, 2012). The old forms containing the assignment language have been destroyed, and the new forms became effective April 27, 2012. Claimants are no longer required to assign their claims to the DOL in order to proceed administratively to resolve their wage disputes.

Because the Wage Payment Statute does not refer to an assignment, and the Wage Claims Statute allows, but does not require, the assignment of claims, this new approach is consistent with the DOL’s statutory authority. The DOL is authorized by statute to resolve wage disputes without taking assignment of the employee’s claim. Therefore, the DOL has clarified its position vis-a-vis claimants using the new Application for Wage Claim form. So where does that leave us in Fox’s appeal?

In its motion to set aside default judgment and motion to dismiss for lack of ' jurisdiction, NCC contended that Fox had no direct, private cause of action for his wage claim and cited to the Wage Claims Statute. NCC argued that the small claims court had no jurisdiction to decide Fox’s claim. The trial court agreed, vacated the default judgment, and dismissed Fox’s claim for lack of subject matter jurisdiction.

In Fox’s motion to correct error, he asserted that his claim was actually a claim under the Wage Payment Statute, which allowed Fox to pursue a direct, civil cause of action and contended that the trial court did have subject matter jurisdiction over Fox’s claim. Fox argued in the alternative that if the trial court decided that Fox’s claim was pursuant to the Wage Claim Statute any jurisdictional issue would soon be resolved after obtaining the referral letter that had been requested from the DOL. While the motion to correct error was pending, Fox submitted to the trial court and counsel for NCC the referral letter Fox’s counsel had obtained from the DOL that reassigned Fox’s claim to him.

NCC argued in opposition to Fox’s motion to correct error that the trial court correctly determined that it lacked subject matter jurisdiction and that the doctrine of res judicata applied and barred the trial court from making a determination in the case. In reference to the res judicata argument, NCC contended that in light of the decision in Quimby the nature of Fox’s claim, one brought under the Wage Claims Statute or one brought under the Wage Payment Statute, was irrelevant since Fox had assigned his claim to the DOL. NCC’s position was that the notice sent to Fox constituted a ruling by the DOL and that pursuant to Quimby, Fox could not bring an action in court after having obtained the ruling. The trial court denied Fox’s motion to correct' error without explanation.

Although other grounds were argued by the parties in support of and in opposition to the motion to correct error, the trial court’s ruling that Fox’s claim was dismissed because the trial court lacked subject matter jurisdiction, was upheld without explanation when the motion to correct error was denied. In E & L Rental Equipment, we stated the following about challenges to a plaintiffs assertion of a claim:

An objection based on whether a plaintiff is the “real party in interest” asserts that the plaintiff is not the owner of the claim sued on. Ind. Trial Rule 17(A) requires that: “Every action shall be prosecuted in the name of the real party in interest.” However, T.R. 17(A) also provides that: “No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time after objection has been allowed for the real party in interest to ratify the action, or to be joined or substituted in the action....” Nonetheless, under T.R. 12(B)(6), when the real party in interest does not ratify, substitute or join the action, the remedy for an action brought by a party other than the real party in interest is dismissal.

744 N.E.2d at 1011 (internal citations omitted). Thus, under Quimby and E & L Rental Equipment, a dismissal under Trial Rule 12(B)(6) would have been proper because at the time of the trial court’s ruling, Fox was not the real party in interest to the claim.

However, the trial court’s order dismissing Fox’s claim with prejudice stated that the trial court lacked subject matter jurisdiction. The transcript of the hearing on the motion to set aside the default judgment and motion to dismiss the claim for lack of jurisdiction is not before this court on appeal. However, NCC stated in its response in opposition to the motion to correct error that the trial court had made it clear to the parties that the trial court might not have jurisdiction to decide the case because of Fox’s representations that a decision was already made by the DOL regarding his claim. Therefore, the doctrine of res judicata might prevent the trial court from deciding Fox’s case.

We address the issue of subject matter jurisdiction because Fox’s small claims action was dismissed with prejudice. “A dismissal with prejudice is a dismissal on the merits.” Ilagan v. McAbee, 634 N.E.2d 827, 829 (Ind.Ct.App.1994) (citing Lakeshore Bank & Trust Co. v. United Farm Bureau Mut. Ins. Co., 474 N.E.2d 1024 (1985)). “A dismissal with prejudice is conclusive of the rights of the parties and is res judicata as to any questions which might have been litigated.” Id.

“Subject matter jurisdiction is the power to hear and determine cases of the general class to which any particular proceeding belongs.” K.S. v. State, 849 N.E.2d 538, 540 (Ind.2006). “In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial court may consider not only the complaint and motion but also any affidavits or evidence submitted in support.” GKN Co. v. Magness, 744 N.E.2d 397, 400 (Ind.2001). “In addition, the trial court may weigh the evidence to determine the existence of the requisite jurisdictional facts.” Id.

A trial court must possess subject matter jurisdiction in order to enter a valid judgment in a case. City of Marion v. Howard, 832 N.E.2d 528, 531 (Ind.Ct.App.2005), trans. denied, cert, denied. The absence of subject matter jurisdiction cannot be waived, and it renders a judgment void. Id. Even if no party raises the issue on appeal, we have the duty to raise and determine the issue sua sponte if lack of subject matter jurisdiction in the original tribunal is apparent from the record. Id. Additionally, parties cannot confer subject matter jurisdiction on a court by consent or agreement. Id. Such jurisdiction can only be conferred by the Indiana Constitution or by statute. Christensen v. Christensen, 752 N.E.2d 179, 182 (Ind.Ct.App.2001).

The doctrine of res judicata prevents the repetitious litigation of disputes that are essentially the same. The principle of res judicata is divided into two branches: claim preclusion and issue preclusion, also referred to as collateral estoppel....
Claim preclusion applies where a final judgment on the merits has been rendered and acts as a complete bar to a subsequent action on the same issue or claim between those parties and their privies. When claim preclusion applies, all matters that were or might have been litigated are deemed conclusively decided by the judgment in the prior action. In order for a claim to be precluded under the doctrine of res judica-ta, the following four requirements must be satisfied: (1) the former judgment must have been rendered by a court of competent jurisdiction; (2) the former judgment must have been rendered on the merits; (3) the matter now in issue was, or could have been, determined in the prior action; and (4) the controversy adjudicated in the former action must have been between the parties to the present suit or their privies. We observe that either party may move to dismiss a claim and a dismissal with prejudice constitutes a dismissal on the merits. Thus, a dismissal with prejudice is conclusive of the rights of the parties and is res judicata as to any questions that might have been litigated. In determining whether the doctrine should apply, it is helpful to inquire whether identical evidence will support the issues involved in both actions.
Issue preclusion, or collateral estoppel, bars the subsequent litigation of a fact or issue that was necessarily adjudicated in a former lawsuit if the same fact or issue is presented in the subsequent lawsuit. Where collateral estoppel is applicable, the former adjudication will be conclusive in the subsequent action even if the two actions are on different claims. However, the former adjudication will only be conclusive as to those issues that were actually litigated and determined therein. Collateral estoppel does not extend to matters that were not expressly adjudicated and can be inferred only by argument. In determining whether to allow the use of collateral estoppel, the trial court must engage in a two-part analysis: (1) whether the party in the prior action had a full and fair opportunity to litigate the issue and (2) whether it is otherwise unfair to apply collateral estoppel given the facts of the particular case.

Afolabi v. Atl. Mortg. & Inv. Corp., 849 N.E.2d 1170, 1173-76 (Ind.Ct.App.2006) (internal citations omitted).

In this case, the trial court reached the conclusion that the DOL had rendered a decision on Fox’s claim, thus barring the trial court from rendering a decision in the matter. However, as we now know based upon the DOL’s explanation of its position on the resolution of claims brought before it, a formal decision was not reached by it regarding Fox’s claim. Indiana Trial Rule 54 defines “judgment” to include “a decree and any order from which an appeal lies.” Black’s Law Dictionary defines “final judgment” as follows:

One which puts an end to an action at law by declaring that the plaintiff either has or has not entitled himself to recover the remedy he sues for.... A judgment which disposes of the subject-matter of the controversy or determines the litigation as to all parties on its merits. A judgment which terminated all litigation on the same right....

Black’s Law Dictionary 437 (5th ed. 1983). In this case, the letter upon which the trial court relied was the DOL’s letter to Fox stating that it was “unable to make a determination in [his] favor.” Appellant’s App. at 32. It does not appear from this letter that a final judgment was entered, and claim preclusion would not deprive the trial court of jurisdiction.

As for issue preclusion, the record reveals that the DOL received Fox’s claim and gave NCC the opportunity to respond to the claim. NCC opposed Fox’s claim, thus the DOL could not mediate the claim. The DOL sent the letter to Fox without giving him the opportunity to respond to his former employer’s materials in opposition to his claim. Therefore, it would be fair to say that at the DOL level Fox did not have a full and fair opportunity to litigate the issue. Furthermore, the application of collateral estoppel would be unfair given the facts of this particular case.

An “adjudication” is defined by Black’s Law Dictionary as follows:

The formal giving or pronouncing a judgment or decree in a cause; also the judgment given. The entry of a decree by a court in respect to the parties in a case. It implies a hearing by a court, after notice, of legal evidence on the factual issue(s) involved. The equivalent of a “determination.” And contemplates that the claims of all the parties thereto have been considered and set at rest.

Black’s Law Dictionary 20 (5th. ed. 1983). The definition of “administrative adjudication” is as follows:

The process by which an administrative agency issues an order, such order being affirmative, negative, injunctive or declaratory in form.

Id. at 22.

The trial court erred by dismissing Fox’s claim with prejudice for lack of subject matter jurisdiction. We reverse the trial court’s order and remand this matter to the trial court with instructions to enter an order that Fox’s claim is dismissed without prejudice under Indiana Trial Rule 12(B)(6) for failure to state a claim upon which relief can be granted, including the failure to name the real party in interest. Thus, Fox may proceed to refile his claim setting forth the reassignment by the DOL. “A dismissal without prejudice is not a determination of the merits of a complaint and does not bar a later trial of the issues.” Wood v. Zeigler Bldg. Materials, Inc., 436 N.E.2d 1168, 1170 (Ind.Ct.App.1982).

Affirmed in part, reversed in part, and remanded.

NAJAM, J., concurs.

MAY, J., dissents with separate opinion.

MAY, Judge,

dissenting.

I believe dismissal of Fox’s wage claim action was correct, and I therefore respectfully dissent. Fox’s case is not factually or legally distinguishable from Quimby v. Becovic Mgmt. Group, Inc., 946 N.E.2d 30, 33-34 (Ind.Ct.App.2011), reh’g denied, trans. denied, and thus Quimby controls. As we stated in Quimby:

Quimby, who voluntarily left her employment, should have brought her claim in court under the Wage Payment statute. Nevertheless, she brought it to the DOL, the DOL accepted it, and the DOL obtained a resolution for her. We decline to hold an employee, regardless of whether or why she is not longer employed by an employer, may bring a claim before the DOL, assign it to the DOL, and then bring the same claim in court if the employee is dissatisfied with the result obtained by the DOL.

Id. Like Quimby, Fox chose to pursue his wage claim through the Wage Claim statute, and not the Wage Payment statute. That choice had the effect of precluding any future judicial action because he assigned his claim to the DOL and sought a resolution through the DOL.

The amici’s explanation of the DOL’s intent is informative, and its recent changes are a helpful step toward clarifying the procedures by which a voluntarily-separated employee may pursue wage claims. But I do not think Quimby may be distinguished on those grounds. Both Fox and Quimby were voluntarily-separated employees who chose to pursue their claims through the DOL, and the DOL obtained a resolution in both instances. In light of the DOL’s policies and procedures in place at the time of their claims, both parties were, therefore, precluded from a second bite at the proverbial apple.

Based on the foregoing, I respectfully dissent.

      . In their briefs, the patties dispute whether Fox was a full-time employee or a part-time employee, in addition to whether Fox left his employment voluntarily. Resolution of those disputes is not relevant to our determination of the issue on appeal.

      . See Ind.Code chapter 22-2-5.

      . See Ind.Code chapter 22-2-9.

      . The State of Indiana, by the Indiana Attorney General, pursuant to Indiana Code section 34-33.1-1-2, has filed an amicus brief. The State of Indiana’s brief is in support of neither party, but is submitted because the decision under review implicates the interests of the Indiana Department of Labor, a state agency.

      . "Determination” is defined by Black’s Law Dictionary as follows:
      The decision of a court or administrative agency. It implies an ending or finality of a controversy of suit. The ending or expiration of an estate or interest in property, or of a right, power, or authority. The coming to an end in any way whatever.
      Black’s Law Dictionary 235 (5th. ed. 1983).


author: MATHIAS, Judge.

text:
    Trenton TEAGUE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 89A01-1202-CR-86.
    Court of Appeals of Indiana.
    Dec. 5, 2012.

      Mark I. Cox, The Mark I. Cox Law Office, LLC, Richmond, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

Trenton Teague (“Teague”) was convicted after a jury trial in Wayne Circuit Court of Class A felony burglary and Class C felony battery. Teague was sentenced to thirty-eight years for burglary and six years for battery with four years suspended. Teague appeals and argues that the trial court improperly admitted a 911 recording into evidence and that his executed sentence of forty years is inappropriate.

We affirm.

Facts and Procedural History

On June 20, 2010, Chelsea Saylor (“Say-lor”) and Teague started dating, but on September 25, 2010, their relationship ended after Saylor and Teague became embroiled in an argument in which Teague beat her, put a knife to her throat, and threatened to kill her. The incident caused Saylor a head laceration, and she visited the local hospital for treatment.

On October 4, 2010 at around 1:30 a.m., Saylor’s mother, Staci Behnen (“Behnen”), fell asleep on the couch in her living room while watching television. Shortly before 3:00 a.m., Behnen woke up when a man struck her in the head with a metal bar, which appeared to Behnen to be a crowbar or tire iron. The man was wearing a dark outfit, including a black head covering, and a black bandana across his face. When Behnen pulled down the man’s bandana as he continued to beat her, she recognized the man as Teague and yelled out his name. As Teague continued to beat Beh-nen in her face and head area with the metal bar, he ordered her to give him her purse. She attempted to block the blows with her arms until she “could not do anything.” Tr. p. 327. Behnen later testified that the pain was “[t]he worst probably that I’ve ever endured.” Id. at 332.

Saylor was upstairs sleeping when she heard Behnen’s screams. As Saylor came downstairs, Teague grabbed her and asked her “what are you doing in Richmond without me[?]” Id. at 491. Saylor recognized Teague from his voice and the portion of his face that was visible. Saylor ran to Behnen who was on the couch bleeding, but Teague followed and struck Saylor with the metal bar. Teague then struck Behnen repeatedly and demanded her purse. Saylor gave Teague the purse so that he would stop beating the two women. Teague then shut Saylor in a closet and told her he was “going to get a gun.” Id. at 499. Through the closet door, Saylor saw Teague run out of the back door of the house. Id. at 492.

Saylor assisted Behnen out to the porch, and then ran over to their neighbor Jan Bishop’s (“Bishop”) house. Saylor was “hysterical” and screamed to Bishop to call 911 and tell the police that “somebody’s broke into the house and beat mom up.” Id. at 412. On the 911 call, Bishop described how Saylor had run to her door, and she relayed statements Saylor made about her ex-boyfriend being the perpetrator and how her mother had been beaten.

After the police and ambulance arrived, Behnen was taken to Reid Memorial Hospital where the doctor diagnosed her with facial fractures, nasal lacrimal duct tran-section, scalp laceration, and poly-substance drug intoxication. Id. at 434-35. Behnen told the doctor that her daughter’s ex-boyfriend had beaten her. Due to her facial fractures and concern of ocular entrapment, she was later transferred to Methodist Hospital in Indianapolis, the regional trauma center where patients are sent with severe injuries that cannot be treated locally. Id. at 434.

Saylor called Wilamena Mitchell (“Mitchell”) around 5:00 a.m. that same morning. Mitchell was in a relationship with league’s uncle, Jeffrey Perkins (“Perkins”). Perkins immediately tried to contact Teague, and around 6:30 a.m., Perkins spoke with Teague on the telephone. Teague asked Perkins to pick him up from the Greenwood Apartments and to take him to a bus station out of town. Perkins agreed to pick Teague up in approximately twenty minutes. Mitchell then arranged for police officers to pull Perkins and herself over after they picked up Teague. Mitchell testified that when they picked Teague up, he remarked that “[h]e needed to get out of town” and that “he was the most looked for man in Richmond at that point.” Id. at 548-49. Police officers stopped the car and took Teague in for questioning.

On October 15, 2010, the State charged Teague with of Count I — Class A felony burglary; Count II — Class B felony burglary; Count III — Class A felony robbery; Count IV — Class B felony aggravated battery; Count V — Class C felony battery; and Count VI — Class C felony battery. Teague was apprehended in Florida by United States Marshalls on April 1, 2011 and extradited back to Indiana. Id. at 790.

After a four-day jury trial beginning on December 12, 2011, the jury found Teague guilty of all counts. At the sentencing hearing on February 3, 2012, the trial court merged Counts II, III, IV, and V into Count I. Teague was sentenced to thirty-eight years on Count I and to a consecutive six years with four years suspended on Count VI.

Teague now appeals.

I. Admission of 911 Call

Teague claims the trial court improperly admitted the 911 recording in which Bishop relayed Saylor’s statements. A trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion. Lehman v. State, 926 N.E.2d 35, 37 (Ind.Ct.App.2010), trans. denied (citing Iqbal v. State, 805 N.E.2d 401, 406 (Ind.Ct.App.2004)). An abuse of discretion occurs if the trial court’s decision is “clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law.” Boatner v. State, 934 N.E.2d 184, 186 (Ind.Ct.App.2010).

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is inadmissible unless it falls under a hearsay exception. Ind. R. Evid. 801; see also Jenkins v. State, 725 N.E.2d 66, 68 (Ind.2000) (citing Ind. R. Evid. 802). If a statement involves hearsay within hearsay, also known as multiple hearsay or double hearsay, the statement may still be admitted if “each layer of hearsay” qualifies “under an exception to the hearsay rule[.]” Palacios v. State, 926 N.E.2d 1026, 1030 (Ind.Ct.App.2010); see also Ind. R. Evid. 805 (“Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.”).

Here, the 911 recording involves multiple hearsay because Bishop relayed statements made by Saylor. Therefore, under Rule 805, Saylor’s statements to Bishop and Bishop’s statements to the 911 operator must both fall within a hearsay exception to be admissible. See Palacios, 926 N.E.2d at 1030.

A. Bishop’s Statements as Excited Utterance

Teague concedes that Saylor’s statements to Bishop were an excited utterance. Appellant’s Br. at 9. However, Teague argues that Bishop’s statements to the 911 operator were not an excited utterance and hence were inadmissible hearsay. An excited utterance 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” and is not excluded by the hearsay rule. Ind. R. Evid. 803(2). To meet the excited utterance exception, three elements must be present: (1) a “startling event or condition” has occurred; (2) the declarant made a statement while “under the stress or excitement caused by the event or condition;” and (3) the statement was “related to the event or condition.” Lawrence v. State, 959 N.E.2d 385, 389 (Ind.Ct.App.2012), trans. denied.

This test is not “mechanical” and admissibility turns “on whether the statement was inherently reliable because the witness was under the stress of the event and unlikely to make deliberate falsifications.” Sandefur v. State, 945 N.E.2d 785, 788 (Ind.Ct.App.2011). The lapse of time is not dispositive, but if a statement is made long after a startling event, it is usually “less likely to be an excited utterance.” Boatner, 934 N.E.2d at 186. “The heart of the inquiry is whether the declar-ant was incapable of thoughtful reflection.” Jones v. State, 800 N.E.2d 624, 627 (Ind.Ct.App.2003).

Here, a bloodied Saylor came to Bishop’s house in the middle of the night distraught and screaming that her mother had been beaten up. Bishop could also hear Behnen screaming from her own porch next door. Bishop immediately-called 911 and answered the operator’s questions. An excited utterance can be made in response to a question so long as the statement is unrehearsed and is made under the stress of excitement from the event. Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind.1996) (“A declaration does not lack spontaneity simply because it was an answer to a question.”). During the 911 call, Saylor could be heard crying in the background, and Bishop told the operator that she was going to remain at her own house, because she was not certain whether the perpetrators were still in Behnen’s house. Throughout the conversation, Bishop had no time to reflect before making her statements. For all of these reasons, we conclude that Saylor’s arrival at her home was a startling event and that Bishop made her statements regarding the incident to the 911 operator while she was under the stress of this event.

In Noojin v. State, our supreme court held that “it is assumed, although not specifically stated in the rule, that an excited utterance must be based on the declarant’s personal knowIedge[.]” 730 N.E.2d 672, 677 (Ind.2000). However, Noojin involved a situation where no one had personal knowledge of the underlying incident, rather the declarant’s statements regarding the incident were based on “conjecture[.]” Id. Thus, it is a matter of first impression for our court whether a 911 recording that involves statements by a caller that were relayed from a victim are admissible where the victim had personal knowledge of the underlying incident but the caller did not. This issue has been addressed in other jurisdictions. See e.g., Williamson v. State, 707 A.2d 350, 353 (Del.1998) (holding that the 911 call was admissible as an excited utterance where the 911 caller was relaying the victim’s statements to the 911 operator); cf. Bemis v. Edwards, 45 F.3d 1369, 1373 (9th Cir.1995) (holding that statements made during a 911 call were inadmissible where the 911 caller did not witness the events he described but rather relayed the observations of other people because the caller did not have personal knowledge of the underlying incident).

Here, Bishop did not have personal knowledge of the underlying incident Say-lor described, but she did have personal knowledge of, and was responding to, the startling event or condition that came to her home in the middle of the night in the person of a bloodied Saylor screaming for help. She heard Behnen moaning in pain from her injuries on her front porch next door. The 911 call confirms that Bishop was assiduous in relaying the operator’s questions to Saylor and Saylor’s answers in return. For all of these reasons, we conclude that the facts and circumstances before us bear sufficient indicia of reliability, the hallmark of all hearsay exceptions. We further conclude that these facts and circumstances are sufficient to meet all of the requirements of an excited utterance. Thus, we hold that Bishop’s statements relaying Saylor’s answers to the 911 operator are admissible as excited utterances.

B. Harmless Error

Even if the trial court erred in admitting the 911 call into evidence, we will not reverse the trial court’s conviction if the error was harmless. Turner v. State, 953 N.E.2d 1039, 1059 (Ind.2011). The error is harmless if there is “substantial independent evidence of guilt satisfying the reviewing court there is no substantial likelihood the challenged evidence contributed to the conviction.” Id. “Generally, errors in the admission of evidence are to be disregarded unless they affect the substantial rights of a party.” Id. If the erroneously admitted evidence was cumulative, the admission is harmless error for which we will not reverse a conviction. Lehman v. State, 926 N.E.2d 35, 37 (Ind.Ct.App.2010).

Here, both Behnen and Saylor identified Teague at trial as the perpetrator. Furthermore, Dr. Michael Smith testified, without objection from the defense, that Behnen told him her daughter’s ex-boyfriend had beaten her. Tr. p. 441. Behnen’s and Saylor’s testimony in court along with Behnen’s prior statements to the doctor serve as “substantial independent evidence of guilt” and satisfy us that “there is no substantial likelihood the challenged evidence contributed to the conviction.” See Turner, 953 N.E.2d at 1059. The 911 recording was merely cumulative evidence; therefore, even if it was improperly admitted, the error was harmless.

II. Sentencing

Teague claims that the sentence imposed by the trial court is inappropriate in light of the nature of his offense and of his character. Under Indiana Appellate Rule 7(B), we may “revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Although we may review and revise a sentence, “[t]he principal role of appellate review should be to attempt to leaven the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.2008). We must give “deference to a trial court’s sentencing decision, both because Rule 7(B) requires us to give due consideration to that decision and because we understand and recognize the unique perspective a trial court brings to its sentencing decisions.” Trainor v. State, 950 N.E.2d 352, 355-56 (Ind.Ct.App.2011), trans. denied (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind.Ct.App.2007)) (internal quotation marks omitted).

In reviewing the appropriateness of a sentence, we consider “the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell, 895 N.E.2d at 1224. We also focus on the aggregate sentence rather than the “ ‘consecutive or concurrent, number of counts, or length of the sentence on any individual count.’ ” Heinzman v. State, 970 N.E.2d 214, 228 (Ind.Ct.App.2012) (quoting Cardwell, 895 N.E.2d at 1225). The defendant has the burden to persuade us “that the sentence imposed by the trial court is inappropriate.” Id. (citing Childress v. State, 848 N.E.2d 1073,1080 (Ind.2006)).

Teague committed Class A felony burglary, for which the sentencing range is twenty to fifty years, with an advisory sentence of thirty years. Ind.Code § 35-50-2-4. He also committed Class C felony battery, for which the sentencing range is two to eight years with an advisory sentence of four years. Ind.Code § 35-50-2-6. Regarding both counts, but particularly in regard to Count I, the trial court found that the aggravating circumstances outweighed the mitigating factors. Teague was sentenced to the Indiana Department of Corrections for consecutive sentences of thirty-eight years for burglary and six years for battery with four years suspended. Thus, neither sentence even meets the statutory maximum sentence.

Regarding the nature of the offense, the trial court noted that “the particular nature and circumstances of this crime ... as they were perpetrated upon Staci Beh-nen by the defendant is significantly more heinous, callous and reprehensible than what is called for by the statute.” Tr. p. 811. Teague started to beat Behnen with a metal bar while she was still asleep, and the beating occurred, at least in part, in the presence or hearing of Saylor, who was less than eighteen years old at the time of the burglary. Furthermore, Teague also beat Saylor with the metal bar, and then returned to beat Behnen again, who “could not do anything” to defend herself and was already “bleeding out her head.” Id. at 491. Behnen suffered such severe injuries that she had to be transferred to the regional trauma center. Due to the beating, she had facial fractures, nasal lacrimal duct transection, and a scalp laceration. She has undergone multiple surgeries. Thus, we conclude that the nature of Teag-ue’s crimes support the trial court’s sentencing judgment.

Next, we consider the character of the offender. In looking at “a defendant’s pri- or criminal history in determining whether to impose a sentence enhancement!,]” we look at “ ‘the gravity, nature and number of prior offenses as they relate to the current offense.’” Smith v. State, 889 N.E.2d 261, 263 (Ind.2008) (quoting Ruiz v. State, 818 N.E.2d 927, 929 (Ind.2004)). While we acknowledge that Teague had not previously been convicted of a felony, he had four prior misdemeanor convictions, one of which was Class A misdemeanor battery, which is directly related to both counts for which he was convicted in this case. Furthermore, at trial Saylor testified that on September 25, 2010, about a week prior to the incident in question, Teague had beaten her, and that she was treated at the hospital for a head laceration.

Moreover, as the trial court noted in its sentencing statement, “[Teague] was ordered by this Court not to have any contact with Chelsea Saylor and he did. He was ordered to pay child support and he didn’t.” Tr. p. 809. At the time of sentencing, Teague had approximately $17,000 in arrears for two of his children and had failed to appear for the child support hearings. Furthermore, Teague fled Indiana to avoid prosecution in this matter and had to be extradited back from Florida for trial. All of this reflects poorly on league’s character.

Giving due consideration to the trial court’s sentencing discretion, and considering the nature of the offense and league’s character, we conclude that league’s forty-year executed sentence is appropriate.

Conclusion

The trial court did not abuse its discretion by admitting the 911 call, and Teag-ue’s aggregate, executed sentence of forty years is appropriate.

Affirmed.

VAIDIK, J., concurs.

BARNES, J., concurs in result.

      . Teague did not raise a Sixth Amendment Confrontation Clause issue on appeal.