author: MAY, Judge. SHEPARD, Senior Judge,

text:
    Richard E. SIMMONS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 55A01-1209-CR-444.
    Court of Appeals of Indiana.
    Dec. 20, 2013.
    Rehearing Denied March 25, 2014.

      William Van Der Pol, Jr., Martinsville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Erie P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   . OPINION

MAY, Judge.

Richard Simmons was convicted of four counts of Class A felony attempted murder, two counts of Class D felony criminal recklessness while armed with a deadly weapon, and one count each of Class D felony unlawful use of body armor and Class A misdemeanor possession of marijuana after he shot at police officers who were trying to serve an arrest warrant on him. He argues he was entitled to a directed verdict on the attempted murder counts because there was no evidence he knew police officers were behind the wall at which he fired shots. Simmons also argues the jury was not properly instructed on the presumption of innocence and his sentence was inappropriate.

We affirm.

FACTS AND PROCEDURAL HISTORY

On October 16, 2011, thirteen police officers went to a residence where Simmons was staying in order to serve arrest warrants. Simmons was in the basement, which had a separate living area. The owner of the residence consented to a search and pounded on the basement door yelling that police were present. Officers approached the basement and then knocked and announced: "Police, warrant, get on the ground and make yourself known." (Tr. at 515.)

The police called out "search warrant" and "arrest warrant," and each officer announced which agency he was from. (Id. at 614.) One officer called Simmons by name and told him to come out and "resolve this if you're in there." (Id. at 593.) An officer entered the hallway of the living area with a police dog and loudly announced: "Come out or I'm going to release my dog." (Id. at 519.) As other officers searched the various rooms in the living area, one encountered Simmons in the laundry room, where he was crouched behind the water heater. The officer was startled and left the laundry room to tell the other officers where Simmons was. The officers formed a "tactical stack" against the outside of the laundry room wall. The officers told Simmons several times to come out of the room, but he did not. One officer was in the doorway holding a shield. He was three or four feet away from Simmons. Another officer was kneeling at the left side of the doorway, with an officer behind him. The lighting was poor but both officers could see Simmons. Simmons' hand was concealed, which suggested to the officers that Simmons was armed.

An officer moved into the laundry room and used a Taser, but it did not make solid contact with Simmons and did not immobilize him. Simmons pulled out a handgun and fired it twice. One officer fired two shots back, then Simmons fired a "barrage," (id. at 912), of gunfire at the officers at the side of the doorway. He then continued firing through the drywall "like following [the officers] down the hallway," {id. at 960), as they retreated.

Simmons left the laundry room and entered a bedroom across the hall. The State Police SWAT Team arrived, took charge of the situation, and negotiated with Simmons by phone for over an hour. After those negotiations failed, the Johnson County SWAT Team entered the basement and launched a gas canister toward Simmons. Simmons fired a number of shots at those officers, but he surrendered after officers launched three more gas canisters.

At his trial, Simmons tendered a preliminary instruction about the presumption of innocence:

Under the law of this state, a person charged with a crime is presumed to be innocent. This presumption continues in favor of the accused throughout the trial of this cause. To overcome the presumption of innocence, the State must prove the Defendant guilty of each essential element of the crime charged, beyond a reasonable doubt.
The Defendant is not required to present any evidence to prove his innocence or to prove or explain anything.
You should attempt to fit the evidence to the presumption that the Defendant is innocent.
If the evidence in this case is susceptible to two (2) constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of the Defendant, and the other to his innocence, it is your duty, under the law to adopt that interpretation which is consistent with the Defendant's innocence, and reject that which points to his guilt.

{App. at 264.)

The trial court declined to give Simmons' tendered instruction. Instead, after a discussion with counsel, it modified one of its preliminary instructions to include language that the presumption of innocence "continues in favor of the accused throughout the trial of this cause." (Tr. at 183.) When final instructions were discussed, Simmons again tendered his preliminary instruction number one and the trial court declined to give it on the ground its content was covered by the other preliminary and final instructions.

At the close of the State's case, Simmons moved for a directed verdict on all the counts of attempted murder. He argued the State had presented no evidence of Simmons' specific intent because he was accused of shooting at officers he could not see or because his shots were directed away from them. Simmons' motion was denied.

A jury found Simmons guilty of four counts of attempted murder, two counts of criminal recklessness while armed with a deadly weapon, and one count each of unlawful use of body armor and possession of marijuana. The trial court sentenced him to thirty-three years for each attempted murder count, two years for each count of criminal recklessness and unlawful use of body armor, and six months for possession of marijuana. The court ordered the attempted murder sentences be served consecutively, while the sentences for the other four counts were to be served concurrent with the attempted murder sentences for an aggregate sentence of 132 years.

DISCUSSION AND DECISION

1. Directed Verdicts

Simmons argues he was entitled to directed verdicts on three of the attempted murder counts because there was no evidence he knew police officers, specifically Officers Stevenson, Bartlett, and Katt, were behind the wall at which he shot. However, as the State notes, Simmons presented evidence after the court denied his motions for directed verdict, so he has waived review of the denial. Seq eg., Croy v. State, 953 N.E.2d 660, 662 (Ind.Ct.App.2011) (defendant who elects to present evidence after a denial of motion for directed verdict made at the end of the State's case waives appellate review of the denial of that motion), reh'g denied. In this situation, we review Simmons' claim as a challenge to the sufficiency of the evidence. Id.

When reviewing sufficiency of evidence, we do not reweigh evidence or reassess credibility of witnesses; rather, we consider only the evidence favorable to the verdict and reasonable inferences to be drawn from that evidence. Hollowell v. State, 707 N.E.2d 1014, 1019 (Ind.Ct.App.1999). If there is substantial evidence of probative value to support the conclusions of the trier of fact, we will affirm the conviction. Id. In this case, there was sufficient evidence to support the convie-tions.

A conviction of attempted murder requires proof of a specific intent to kill. Henley v. State, 881 N.E.2d 639, 652 (Ind.2008). Because intent is a mental state, intent to kill may be inferred from the deliberate use of a deadly weapon in a manner likely to cause death or serious injury. Id. Firing a gun in the direction of an individual is substantial evidence from which a jury may infer intent to kill. Id.

In Henley, Police stopped Henley's car, and Henley ran away. Using a police dog, officers tracked Henley to a van. When the dog entered the van, Henley began shooting and killed the dog. Our Supreme Court found there was no evidence Henley knew police officers were present when he fired his weapon. The officer testified that, not knowing Henley was in the van, he gave "no commands at all." Id. "[The most relevant evidence concerning Henley's intent to kill came from Officer Moli-net's testimony that he 'heard a pop, and pop, pop, pop, and saw three more muzzle flashes just coming back at both of us, you know, me and [the police dog].'" Id. The officer testified, however that he could not see Henley because it was too dark in the van. The Henley Court found that record "simply devoid.of any probative evidence that Henley was pointing his firearm at Officer Molinet when he fired the weapon. We are compelled to conclude that Henley's intent to kill Officer Molinet was not established beyond a reasonable doubt." Id. at 658.

Simmons, unlike Henley, knew there were a number of police officers in the direction he was shooting, even if they were not visible to him. Simmons concedes it is "arguable" that he "was in a position to be aware of the officers deployed in the doorway," (Br. of Appellant at 11), but asserts there was no evidence he was aware of the officers hidden and deployed to the right of the doorway. Simmons characterizes as "the best evidence," (id.), that he could not have seen the officers pass to the right of the doorway because he was hidden out of sight behind a water heater. However, we may not consider the "best evidence" from Simmons' perspective. See Olive v. State, 696 N.E.2d 381, 382 (Ind.1998) (in reviewing for sufficiency of evidence, we consider only the. facts favorable to the judgment and do not assume that other evidence, even if arguably unrefuted, is necessarily credible).

The available evidence permitted the jury to infer Simmons was aware of the officers behind the drywall even if he could not see all of them. In Champlain v. State, 681 N.E.2d 696 (Ind.1997), Champlain asserted there was insufficient evidence he knowingly killed the victim. We noted testimony that Champlain fired into a trailer home at close range aware that the victim was inside. "[The victim's] voice could have permitted Champlain to form a conclusion as to her location even if visibility was blocked by the door." Id. at 703. The jury could have concluded from that evidence that Champlain "knowingly" killed the victim. Id. at 702-08.

When the thirteen officers first approached the basement where Simmons was hiding, they knocked and announced: "Police, warrant, get on the ground and make yourself known." (Tr. at 515.) The police called out "search warrant" and "arrest warrant," and each officer announced which agency he represented. (Id. at 614.) One officer called Simmons by name and told him to come out and "resolve this if you're in there." (/d. at 598.)

After one officer encountered Simmons in the laundry room, other officers formed a "tactical stack" against the outside of the laundry room wall. Simmons conceded "when they were in the laundry room, there was [sic] three or four of them that came in." (Ex. 344a at 16.) The officers told Simmons several times to come out of the room, but he did not: "There was [sic] several voice commands from several officers." (Tr. at 1176.) Officers Bartlett, Stevenson, and Katt were lined up behind Officer Clarke, who was kneeling at the left side of the laundry room doorway and who could see Simmons. Officer Bartlett testified he could see Simmons, and Officer Bartlett and Simmons exchanged words for about five minutes. As there was ample evidence from which the jury could infer Simmons knew there were at least four officers behind the wall he shot at, there was sufficient evidence to convict Simmons of four counts of attempted murder.

2. Jury Instructions

The manner of instructing a jury is left to the sound discretion of the trial court. Albores v. State, 987 N.E.2d 98, 99 (Ind.Ct.App.2013). We review the trial court's decision only for an abuse of that discretion. Id. On review of a decision not to give a proposed jury instruction, we consider whether the instruction (1) correctly states the law, (2) is supported by the evidence, and (8) is covered in substance by other instructions that are given. Id. We consider jury instructions as a whole and in reference to each other and do not reverse unless the instructions as a whole mislead the jury as to the law in the case. Id. Even if an instruction is a correct statement of the law and finds support in the evidence, a trial court may in its discretion decline to give it if its substance is covered by other instructions. Id.

Simmons' trial court did not abuse its discretion by declining Simmons' tendered instruction on the presumption of innocence. The tendered instruction included the statement: "Under the law of this state, a person charged with a erime is presumed to be innocent. This presumption continues in favor of the accused throughout the trial of this cause." (App. at 264.) That instruction, Simmons asserts, "contained the mandatory language concerning the fact that the presumption of innocence continues throughout the trial.... This court has found that upon request of the defendant, the count [sic] must include this language." (Br. of Appellant at 7-8.)

Simmons relies on Lee v. State, 964 N.E.2d 859 (Ind.Ct.App.2012), trans. de-mied, where we found the jury was not adequately instructed on the presumption of innocence. We noted an instruction that "advises the jury that the presumption of innocence prevails until the close of the trial ... must be given if requested." Id. at 864.

In fact, Simmons' jury was so instructed, at least at the beginning of his trial. Simmons does not acknowledge in his brief that preliminary instruction number fourteen included this language: "This presumption [of innocence] continues in favor of the accused throughout the trial of this cause." (App. at 207.) The court again instructed the jury in its final instructions about the presumption of innocence, but the final instructions did not include the specific language that the presumption of innocence continues throughout the trial.

It was not an abuse of discretion to so instruct the jury only in the preliminary instructions and not again in the final instructions, as other final instructions adequately conveyed to the jury the concept that the presumption of innocence continues throughout the trial. In final instruction number 28, the jury was told "You should attempt to fit the evidence to the presumption that the defendant is innocent and the theory that every witness is telling the truth." (App. at 171.) As it is "throughout the trial" that the jury receives evidence, the instruction that it should try to fit the evidence to the presumption of Simmons' innocence covered, in substance, the instruction that the presumption continues throughout the trial. There was no abuse of discretion. See Albores, 987 N.E.2d at 99 (no abuse of discretion if rejected tendered instruction is duplicative of other instructions given by the trial court).

3. Sentence

Simmons concedes the trial court could impose consecutive sentences for the four counts of attempted murder, but argues the imposition of consecutive sentences, resulting in an aggregate sentence of 132 years was inappropriate in light of the trial court's statement that the aggravating circumstances "only slightly" outweighed the mitigators. (Tr. at 2351.)

Sentencing decisions rest within the sound discretion of the trial court and will be disturbed only on a showing of an abuse of discretion. Anderson v. State, 989 N.E.2d 823, 826 (Ind.Ct.App.2013), trans. denied. An abuse of discretion occurs when the decision is clearly against the logic and effect of the evidence before the court or the reasonable inferences to be drawn therefrom. Id.

Ind. Appellate Rule 7(B) empowers us to independently review and revise sentences authorized by statute if, after due consideration, we find the trial court's decision inappropriate in light of the nature of the offense and the character of the offender. Id. at 827. The "nature of offense" compares the defendant's actions with the required showing to sustain a conviction under the charged offense, id., while the "character of the offender" permits broader consideration of the defendant's character. Id. An appellant bears the burden of showing both prongs of the inquiry favor revision of the sentence. Id.

Simmons does not explicitly address any facts relevant to his character or the nature of his offense. Instead, he notes the trial court characterized the sentence for each Class A felony count, thirty-three years, as "only marginally above the advisory sentences," (Tr. at 2351 but it then ordered them to run consecutively for an effective sentence of 182 years. Using "the exact same set of cireumstances" to impose sentences close to the advisory for individual counts but then ordering the individual sentences to be served consecutively was, Simmons asserts without citation to authority, a "completely ... illogical conclusion." (Br. of Appellant at 14.)) He also notes "the effective sentence imposed for shooting at an officer in the doorway was the same as [the sentence imposed for shooting] one Simmons could not have even known existed." (Id.)

Simmons inappropriatenesslargu— ment is waived because he did not make any argument the sentence was inappropriate in light of his character. See Williams v. State, 891 N.E.2d 621, 633 (Ind.Ct.App.2008) (revision of a sentence under Indiana Appellate Rule 7(B) requires the appellant to demonstrate that his sentence is inappropriate in light of both the nature of his offenses and his character).

The waiver. notwithstanding, consecutive sentences were appropriate because there were multiple victims. Whether the counts involve one or multiple victims is highly relevant to the decision to impose consecutive sentences. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.2008). That is because "when the perpetrator commits the same offense against two vie-tims, enhanced and consecutive sentences seem necessary to vindicate the fact that there were separate harms and separate acts against more than one person." Serino v. State, 798 N.E.2d 852, 857 (Ind.2003).

We have upheld consecutive sentences where, as here, there are multiple victims of attempted murder. Seq, eg., Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind.Ct.App.2011), trans. denied. Fernbach's sentencing court imposed advisory sentences for two counts of attempted murder and ordered them to run consecutively. "There were two victims, both of whom suffered serious injuries as a result of being shot by Fernbach. Thus, we cannot say that the trial court's decision to impose consecutive sentences was inappropriate." Id. In light of Simmons' multiple victims, the order that his sentences would be served consecutively did not render his total sentence inappropriate.

CONCLUSION

There was ample evidence to convict Simmons of attempted murder, his jury was adequately instructed on the presumption he was innocent, and his consecutive sentences were appropriate. We accordingly affirm.

Affirmed.

PYLE, J., concurs.

SHEPARD, SR. J., concurring with separate opinion.

SHEPARD, Senior Judge,

concurring.

When it came time for final instructions, Simmons tendered a charge that Indiana judges have been giving to juries in erimi-nal cases for at least 120 years:

Under the law of this state, a person charged with a crime is presumed to be innocent. This presumption continues in favor of the accused throughout the trial of this cause. You should attempt to fit the evidence to the presumption that the defendant is innocent and the theory that every witness is telling the truth.

The court declined Simmons' request and gave instead a similar instruction tendered by the prosecution. While the two were much the same, the State's version did not contain the second of the three ideas embodied in the standard instruction; it omitted the language about "continues in favor of the accused throughout the trial." It's not clear that anyone noticed this difference at the time.

As the panel's opinion indicates, Simmons relies on cases like Lee v. State, 964 N.E.2d 859, and Albores v. State, 987 N.E.2d 98, in arguing that a trial court errs when it refuses an instruction containing all three ideas-(1) there's a presumption, (2) it lasts throughout the trial, and (8) fit the evidence to the presumption if possible.

The obligation of trial courts to convey all three ideas, last confirmed in Robey v. State, 454 N.E.2d 1221 (Ind.1983), originated from the Indiana Supreme Court's decision in Farley v. State, 127 Ind. 419, 26 N.E. 898 (1891).

In Farley, the Court relied on Joel Prentiss Bishop's treatise Criminal Procedure for the rule it announced. Bishop was a practitioner in New York and Boston who became one of the most respected and most prolific authors of legal treatises during the last half of the Nineteenth Century.

Fortunately for modern lawyers, the Indiana Supreme Court Law Library continues to hold this volume upon which Justice Walter Olds relied in authoring the Farley opinion. Examination of the passages Olds cited from the Bishop treatise provides some insight into the principles that originally underlay Indiana's three-part instruction to juries.

In elaborating on the idea that the presumption of innocence and the burden of proof remains with the prosecution "throughout" the trial, Bishop noted that the State was obligated in the first instance to "make out only a prima-facie case against the defendant." Joel Prentiss Bishop, Criminal Procedure par. 1050 (8rd ed. 1880). Bishop correctly noted that onee this has occurred a defendant could well be convicted unless he presented some rebuttal, but criticized judicial decisions that characterized this moment as one in which the burden of proof shifts to the defendant. Not so, he said:

It is more exact, and it expresses the better doctrine, to say, that the prima-facie showing does not change the burden of proof, which remains with the prosecuting power to the end; the jury, to be authorized to convict, being required to take into account all the evidence on both sides, including the presumptions, and to be affirmatively satisfied from it, with the certainty demanded by law, of the defendant's guilt." Id.

This explication by Bishop fits well alongside the two pieces of Indiana precedent the Farley Court cited in support of its holding about the three-part instruction. They were Castle v. State, 75 Ind. 146 (1881) (must instruct that conviction necessitates that each and every juror be con-vineed by the evidence), and Aszman v. State, 123 Ind. 347, 24 N.E. 123 (1889) {instructions must cover the individual responsibility of each juror).

These authorities relied on in Farley suggest that the directive for the three-part instruction was born from a concern that each deliberating juror must be con-vineed during deliberations that the State has met its burden and the burden never shifts to the defendant. The language about the presumption "prevailing throughout" emphasizes this principle, but seems to add only a little to the explanation Indiana courts give to juries. Put another way, there is some daylight between "prevailing throughout" and "fit the evidence to the presumption," but not much.

This overlap in the three-part instruction mandated by Farley and Robey appears from time to time when the Court of Appeals is confronted with cases in which a trial court has failed to include all three thoughts.

Such a case is Lee v. State, cited by appellant Simmons. There, the trial court instructed on the presumption of innocence, but refused instructions on "throughout" and "fit the evidence." The Lee panel correctly noted that this was error, and it reversed, holding that failing to tell the jury to fit the evidence to the presumption of innocence was fatal and hinting that, had it been included, the omission of the "throughout" language might have been thought harmless. Error, yes, but not adequate reason to reverse.

This case largely fits the scenario envisioned in Lee. Final instructions covered the presumption and told the jury to "fit the evidence," but did not tell them the presumption "prevails throughout." This was error, of course, under Farley and Robey, but I would say not reversible, particularly in light of the fact that the full three-part instruction was given during preliminary instructions. I therefore join in affirming the convictions.

      . Ind.Code § 35-41-5-1 (attempt); Ind.Code § 35-42-1-1 (murder).

      . Ind.Code § 35-42-2-2.

      . Ind.Code § 35-47-5-13.

      . Ind.Code § 35-48-4-11.

      . Simmons does not contest his convictions of possession of marijuana and unlawful use of body armor.

      . We heard oral argument October 7, 2013, at the Randall T. Shepard Academy for Law and Social Justice in Evansville We thank the Academy for its hospitality and commend counsel on the quality of their oral advocacy.

      . One officer testified a "tactical stack" is "where you line up directly behind the person in, in close proximity where you can actually touch the person's shoulder in front of you." (Tr. at 515.)

      . Simmons was charged with six counts and found guilty of four. On appeal, he challenges only three counts.

      . In order for a trial court to grant a motion for a directed verdict, there must be a total lack of evidence on an essential element of the crime or the evidence must be without conflict and susceptible to only an inference in favor of the defendant's innocence. Guy v. State, 678 N.E.2d 1130, 1134 (Ind.Ct.App.1997), disapproved on other grounds by Abney v. State, 821 N.E.2d 375 (Ind.2005). If the evidence is sufficient to sustain a conviction on appeal, then the denial of a motion for a directed verdict could not be error. Id. The State need only present a prima facie case in order to avoid an adverse directed verdict. Hollowell v. State, 707 N.E.2d 1014, 1019 (Ind.Ct.App.1999).

      . Simmons concedes he might have been in a position to be aware of the officers stationed in the doorway, but the three named officers were apparently in the "tactical stack" in the hallway and not visible at the door The State argues the "evidence is sufficient to support Simmons' convictions for [sic] the attempted murders of Officers Clarke, Bartlett, Stevenson, and Katt." (Br. of Appellee at 27) (emphasis added). But Simmons does not appear to be making any such argument as to Officer Clarke. Instead, Simmons explicitly concedes he could have seen Clarke or at least have been aware of his presence. (Br. of Appellant at 10.)

      . To avoid an adverse directed verdict, the State need only present a prima facie case. Hollowell v. State, 707 N.E.2d 1014, 1019 (Ind.Ct.App.1999). Thus, if the evidence is sufficient to sustain a conviction on appeal, the denial of a motion for a directed verdict could not be error. Guy v. State, 678 N.E.2d 1130, 1134 (Ind.Ct.App.1997), disapproved on other grounds by Abney v. State, 821 N.E.2d 375 (Ind.2005).

      . Simmons asserts there was not enough evidence to establish Henley's intent to kill the officer even though there was evidence Henley knew the officer was present. That evidence, Simmons says, was that "the officers were in hot pursuit of Henley. They were pursuing him with the dog. The dog was tethered to the officer. It seems pretty apparent that Henley was aware officers were present." (Br. of Appellant at 11.) As noted above, our Supreme Court explicitly found to the contrary: "There was no evidence presented that Henley was aware of the police presence when he fired his weapon." Henley, 881 N.E.2d at 652.

      . Simmons did not submit a reply brief.

      . The advisory sentence for a Class A felony is thirty years. Ind.Code § 35-50-2-4.


source: Caselaw Access Project

author: SHEPARD, Senior Judge.

license: Public Domain

text:
    TOWN OF NEWBURGH, Appellant/Cross-Appellee, v. TOWN OF CHANDLER, Appellee/Cross-Appellant.
    No. 87A01-1305-CT-203.
    Court of Appeals of Indiana.
    Dec. 23, 2013.
    Rehearing Denied Feb. 28, 2014.

      R. Thomas Bodkin, J. Herbert Davis, Bamberger, Foreman, Oswald & Hahn, LLP, Evansville, IN, Attorneys for Appellant.
    Brian W. Welch, Carl A. Hayes, Bing-ham Greenebaum Doll LLP, Indianapolis, IN, Attorneys for Appellee.
    S. Adam Long, Long & Mathies Law Firm, P.C., Boonville, IN, Attorney for Amicus Curiae Board of Commissioners of Warrick County.
    Mark K. Phillips, Mark K. Phillips, Attorney at Law, P.C., Boonville, IN, Attorney for Amicus Curiae City of Boonville.
   OPINION

SHEPARD, Senior Judge.

The legislature has authorized municipalities to provide sewer service up to four miles from their corporate boundaries, and to regulate or even prohibit other entities from doing so. When two towns each assert exelusive right to provide service in a zone where their authority overlaps, how should their conflicting claims be resolved?

FACTS AND PROCEDURAL HISTORY

Acting under Indiana Code sections 86-9-2-16, -17, and -18 (1980), the towns of Newburgh and Chandler in Warrick County have for decades been providing sewer services in the four-mile rings outside their boundaries. Their four-mile rings somewhat overlap.

On April 25, 2007, Newburgh adopted an ordinance exercising "an exclusive license to furnish sewer service within the Regulated Territory, and all other utilities are expressly prohibited from furnishing sewer service within the Regulated Territory, except for those customers located in the Regulated Territory that are connected to another sewer utility as of the date this Ordinance is adopted." Appellant's App. p. 76. The "Regulated Territory" includes the overlapping area between Newburgh and Chandler.

About six weeks later on June 4, 2007, Chandler adopted an ordinance with the same language, thus purporting to give Chandler an exclusive license to provide (and expressly prohibiting others from providing) new sewer services to customers in the overlapping area. Id. at 71-72.

Ruksam Development, LLC, approached both Newburgh and Chandler about the feasibility and cost of providing sewer services to a subdivision it planned to develop in the overlapping area. Newburgh's estimate was a good deal higher than Chandler's, so Ruksam opted to request sewer services from Chandler. Shortly thereafter, Newburgh sued Ruksam in Vander-burgh Circuit Court for violating the New-burgh ordinance.

In April 2012, Chandler sued Newburgh in Warrick Superior Court, seeking a declaratory judgment that Newburgh's ordinance could not prohibit Chandler from providing new sewer services in the overlapping area. The parties filed cross-motions for summary judgment and designations. After a hearing, the trial court denied both motions. Upon Newburgh's request, the court certified its order for interlocutory appeal, and this Court accepted jurisdiction.

ISSUE

The issue presented by Newburgh's appeal and Chandler's cross-appeal is whether the trial court erred by denying the eross-motions for summary judgment.

DISCUSSION AND DECISION

Summary judgment is appropriate only where the designated evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); City of N. Vernon v. Jennings Nw. Reg' Utils, 829 N.E.2d 1, 3 (Ind.2005). All evidence must be construed in favor of the nonmoving party, and all doubts as to the existence of a material issue must be resolved against the moving party. Id.

Neither party really contends there are genuine issues of fact, so the question would seem to be whether these facts entitle either town to judgment as a matter of law.

Newburgh claims Chandler is prohibited from providing new sewer services | to customers in the overlapping area because Newburgh was the first to adopt an ordinance to that effect. Chandler disagrees, contending among multiple counterarguments that the fact that both towns have long provided sewer services in the overlapping area vitiates the effect of Newburgh's ordinance.

The parties' arguments rest on Indiana Code sections 86-9-2-16 and -18. Section 16 provides that a municipality "may regulate the furnishing of the service of collecting, processing, and disposing of waste substances and domestic or sanitary sewage. This includes the power to fix the price to be charged for that service." For purposes of Title 36, " '[rlegulate' includes license, inspect, or prohibit." Ind.Code § 36-1-2-15 (1980).

Section 36-9-2-18 further provides that "[a] municipality may exercise powers granted by sections 2, 8, 14, 16, and 17 of this chapter in areas within four (4) miles outside its corporate boundaries."

Read together, these statutes give municipalities several powers, including the authority to prohibit the furnishing of sewer services within four miles of their boundaries. These powers, though, are not self-executing. The Code provides how they must be exercised:

(a) If there is a constitutional or statutory provision requiring a specific manner for exercising a power, a unit wanting to exercise the power must do so in that manner.
(b) If there is no constitutional or statutory provision requiring a specific manner for exercising a power, a unit wanting to exercise the power must ...
(1) if the unit is a county or municipality, adopt an ordinance prescribing a specific manner for exercising the power....

Ind.Code § 36-1-3-6 (1993). Here, there are no constitutional or statutory provisions requiring a specific manner for exercising the powers conferred by Sections 16 and 18. A municipality wanting to exercise one of these powers must therefore adopt an ordinance prescribing a specific manner by which it will act.

To that end, Newburgh says, it adopted the April 2007 ordinance asserting exclusive license to provide, and prohibiting others from providing, new sewer services to customers in the overlapping area. Acknowledging Chandler adopted a similar ordinance six weeks later, Newburgh argues its ordinance prevails because it was adopted first.

This state's courts have long used a first-in-time rule, in the absence of other legislative direction, to resolve disputes when two municipalities possess concurrent and complete jurisdiction of a subject matter. See Taylor v. City of Fort Wayne, 47 Ind. 274, 282 (1874) (group of citizens prevailed where it initiated proceedings to incorporate new town before city initiated proceedings to annex same territory); Ensweiler v. City of Gary, 169 Ind.App. 642, 645, 350 N.E.2d 658, 659 (1976) (city prevailed where it initiated annexation proceedings before group of citizens initiated proceedings to incorporate same territory as new town).

Chandler claims Newburgh's ordinance was not first-in-time because both towns had been "regulating" sewer services in the sense that they had adopted various ordinances for delivery of service. For example, Chandler points to a 1974 contract in which it agreed to provide sewer services to a customer just south of its boundary. -It also points generally to 148 pages of its own ordinances adopted as early as 1965 regarding its own sewer system. None of its designated evidence, though, shows that it adopted an ordinance, prior to the ones each town adopted in 2007, prohibiting all others from providing new sewer services in the overlapping area.

Noting that "regulate," in terms of Section 16, includes fixing prices, licensing, inspecting, or prohibiting, Chandler argues the statutory definition of "regulate" should not be parsed to allow Newburgh to be first-in-time to regulate by "prohibiting" in light of the fact that both towns had long been "fixing prices," "licensing," and "inspecting." This, says Chandler, would be a "word game [that] defies logic and reality." Appellee's Br. p. 18.

Of course, this is not a common law case but rather one in which particular statutes govern. We do our best to apply the Code sections the General Assembly has enacted. As respects this dispute, the question is: when two municipalities have been "regulating"-say, by providing service to various customers in an overlapping area or even barring users from discharging sewage into natural outlets-do they both lose their authority to "regulate" by "prohibiting" others from providing service?

The discussion in Brenwick Associates, LLC v. Boone County Redevelopment Commission, 889 N.E.2d 289 (Ind.2008), is instructive. The dispute there arose when Boone County established an economic development area ("EDA") that included land that the town of Whitestown was attempting to annex. Whitestown argued it initiated annexation proceedings before Boone County initiated EDA proceedings and should thus prevail pursuant to Taylor v. City of Fort Wayne and Emsweller v. City of Gary. As noted above, those cases involved disputes between citizens who wanted to incorporate new towns on the one hand and cities that wanted to annex the same land on the other.

The Supreme Court easily distinguished Taylor and Emsweiler, noting that the first-in-time rule was implicated in those cases "because the territory in question simply could not be both a new town and within the respective cities." Brenwick, 889 N.E.2d at 294. The first-in-time rule did not apply in Brenwick, it explained, because annexation and establishment of an EDA were not the same subject matter. Id. Moreover, Whitestown's initiation of annexation proceedings did not preclude Boone County from establishing the EDA (at least until annexation was complete), and Boone County's establishment of the EDA did not preclude Whitestown from completing annexation. Id. at 295.

Before Newburgh's 2007 ordinance, the situation was similar to that in Brenwick. That is, neither town precluded the other from providing sewer service to particular customers in the overlapping area. It was not until the towns each decided to exercise exclusive jurisdiction that a conflict arose. At that point, the situation fit within Taylor and Ensweiler because new sewer services could not be provided exclusively by Newburgh at the same time they were provided exclusively by Chandler.

Chandler also questions the notion that Section 36-9-2-16 actually empowers a municipality to prohibit all others from providing sewer services. It points to legislation about the effect of issuance of an Indiana Utility Regulatory Commission certificate of territorial authority to a sewage disposal company: "no other sewage disposal company shall render sewage disposal service in the area." Ind.Code § 8-1-2-89(g) (1992). Chandler says this demonstrates that the General Assembly is altogether able to create explicit authority to exclude when it so intends-and did not use such language in Section 16.

To be sure, this IURC statute is very explicit about barring another provider, but it is hard to see much ambiguity in the statutes about municipal sewer service that govern this case. The Code authorizes municipalities to regulate sewer service and says that this regulation includes the power to "prohibit." This is exactly what Newburgh did when it adopted its 2007 ordinance.

Chandler also argues that because the legislature gave it the statutory power to provide sewer services within four miles outside its boundaries, Newburgh may not take away that statutory power by adopting an ordinance. This argument is misplaced. Newburgh is not trumping any statute with its ordinance. While Sections 16 and 18 confer certain powers, towns must adopt ordinances to exercise them. The Newburgh ordinance simply exercises the statutory authority conferred on the town, just as Chandler's later ordinance was drafted to do.

Chandler nonetheless cites a provision of the Home Rule Act that says a municipality "does not have ... [tlhe power to impose duties on another political subdivision, except as expressly granted by statute." Ind.Code § 36-1-3-8(a)(8) (2005). The Indiana Supreme Court, however, has held that this provision does not bar municipalities "from enforcing against other political subdivisions those regulations of general applicability which are specifically authorized by statute." City of Crown Point v. Lake Cnty. 510 N.E.2d 684, 686 (Ind.1987); see Town of Avon v. W. Cent. Conservancy Dist., 957 N.E.2d 598, 606 (Ind.2011) (town entitled to regulate other political units' attempt to take water from aquifer pursuant to its ordinance adopted under statutory authority).

Chandler then argues that City of North Vernon v. Jennings Northwest Regional Utilities, 829 N.E.2d 1 (Ind.2005), compels a decision in its favor. There, the Jennings County Commissioners petitioned the Indiana Department of Environmental Management to form a regional water and sewer district for the northwest portion of Jennings County. IDEM granted the request, established Jennings Northwest Regional Utilities, and authorized JNRU to provide sewer service in areas just outside North Vernon's corporate boundaries. At the time the order was entered, North Vernon was already providing sewer services to areas IDEM identified as JNRU's service district. When a new elementary school in one of those areas opted to obtain sewer services from North Vernon, JNRU sued North Vernon, seeking a declaratory judgment that JNRU had the exclusive right to serve the school.

The Indiana Supreme Court acknowledged that IDEM expressly granted JNRU the power to provide sewer services in the area where the school was located and that our Home Rule Act provides that a municipality "may exercise any power it has to the extent that the power ... is not expressly granted to another entity." Ind. Code § 36-1-3-5(a)(2) (1993). Nonetheless, it found that strict application of this provision, which would result in judgment for JNRU, was at odds with the express grant of statutory authority given to municipalities to operate sewer facilities within and without their corporate boundaries.

Strict application was also at odds with the statutory scheme of the Home Rule Act, which demonstrated "a legislative intent to provide counties, municipalities, and townships with expansive and broad-ranging authority to conduct their affairs." North Vernon, 829 N.E.2d at 5. The Court thus held that "where there is an overlap between the service area of a regional district and the service area of a municipality, and absent a resolution during the IDEM permitting process, under the 'expressly granted' provision of the Home Rule Act, the district prevails unless the municipality was already providing services to the area at the time the district's service area was created." Id. at 7. The Court thus concluded that North Vernon had the exclusive right to provide sewer services to the school. Id.

Chandler claims North Vernon supports its argument for two reasons, neither of which are persuasive. First, it notes that the opinion is silent on whether North Vernon ever adopted an ordinance to exercise exclusive authority and urges us to conclude that its provision of service was enough to do so. The opinion's silence as to the adoption of an ordinance, though, may be for the benign reason that the parties did not identify it as an issue. Regardless, as noted above, the Code is clear that a municipality wanting to exercise the powers conferred by Section 36-9-2-16 must adopt an ordinance prescribing a specific manner for doing so.

Second, Chandler asserts that it was North Vernon's provision of sewer services in the disputed area before JNRU's service area was created that led the Court to rule for North Vernon. As in that case, Chandler argues, it should prevail because it was providing services in the overlapping area before Newburgh adopted its 2007 ordinance. This argument does not ac-eount for the reason the Supreme Court found North Vernon's provision of sewer services determinative: the establishment of JNRU's service area conflicted with both the express statutory authority allowing municipalities to provide sewer services outside their boundaries as well as the Home Rule Act's policy providing mu-micipalities with expansive authority to conduct their affairs. The determinative factor in North Vernon, a dispute between a municipality and a regional sewer district, simply does not carry over to the case before us, a dispute between two municipalities.

Finally, Chandler and two amici curiae, the Warrick County Commissioners and the City of Boonville, argue that enforcement of Newburgh's 2007 ordinance will chill economic development. They allege Newburgh enforces its ordinance only in situations where significant sewer service fees are expected, which makes developers hesitant to invest in projects in Newburgh's extraterritorial service area for fear they will be subjected to lawsuits if they choose a cheaper sewer provider. Chandler and amici also point out that having competing sewer service providers benefits customers and has been the norm for decades. They further note that a town could stake its claim to a particular area irrespective of its ability to provide service there.

These arguments possess some weight. Resolution of disputes like the one before us by a commission in the executive branch could likely produce more effective and efficient results. The creation of such mechanisms, however, is in the domain of the legislature and not the courts. The statutes as they exist authorized New-burgh's ordinance prohibiting others from providing new sewer services to customers within four miles of its corporate boundaries.

CONCLUSION

We therefore affirm the trial court's denial of summary judgment to Chandler, reverse its denial of summary judgment to Newburgh, and remand with instructions to enter summary judgment for New-burgh.

Affirmed in part, reversed in part, and remanded.

BAKER, J., and BROWN, J., concur.

      . Each party also sought damages for the other's alleged tortious interference with its business relationship with Ruksam. Summary judgment was not sought on those claims.

      . Chandler also argues that Newburgh should be judicially estopped from claiming exclusivity because it sought to intervene in a Utility Regulatory Commission proceeding in which Chandler was seeking exclusive license for water service. There, Newburgh argued that service should be "open and subject to customer choice." Appellee's App. p. 380. To be sure, Newburgh's earlier statements provide some awkwardness in this litigation, but the Indiana Supreme Court has regularly held that estoppel is not usually applicable to government units. See, eg., Biddle v. BAA Indianapolis, LLC, 860 N.E.2d 570, 581 (Ind.2007); Dep't of Local Gov't Fin. v. Commonwealth Edison Co. of Ind., Inc., 820 N.E.2d 1222, 1228 (Ind.2005).


author: BRADFORD, Judge.

text:
    Duane JADRICH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 32A04-1302-CR-67.
    Court of Appeals of Indiana.
    Dec. 23, 2013.
    Bryan L. Cook, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

CASE SUMMARY

Hendricks County Sherriff's Deputy Robert Butterfield, who was attempting to serve a protective order, knocked on the front door of a residence on State Road 267. When he received no response, Deputy Butterfield walked to the rear of the house, passing by signs indicating that visitors were only to use the front door and through the closed gate of a chain-link fence. Deputy Butterfield knocked on the back door and again received no response but, when he took two steps off of the back patio, he noticed a "grow" inside a circle of firewood and brush. Deputy Butterfield approached and observed what he believed to marijuana in the circle and called Sher-riffs Sergeant Brett Clark.

Sergeant Clark arrived with Sherriffs Detectives Henry Sadler and Matthew Wing. Detective Sadler knocked on the front door, received no response, but noticed an open window on the front of the house. When Detective Sadler knocked on the window, an individual inside asked who it was. Appellant-Defendant Duane Jad-rich and his wife opened the front door, and Detective Sadler advised Jadrich that he wanted to speak with him about the marijuana plants in the back yard. Eventually, Jadrich consented to a search of his residence, which uncovered a smoking pipe containing marijuana residue. Six plants recovered from the back yard tested positive for marijuana.

The State charged Jadrich with Class D felony marijuana possession and Class A misdemeanor paraphernalia possession. Jadrich filed a motion to suppress the evidence found at his residence. After trial on only a stipulation of facts with Appellee-Plaintiff the State of Indiana, the trial court found Jadrich guilty as charged, entered judgment of conviction for Class A misdemeanor marijuana possession and Class A misdemeanor paraphernalia possession, and sentenced Jadrich to 365 days of incarceration with 368 days suspended to probation. Jadrich contends that Deputy Butterfield conducted an unconstitutional warrantless search of his property; that his consent to the search of his home was invalid; and that police improperly sought his consent to search his home without advising him that he had the right to consult with counsel, pursuant to Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975) Concluding that Deputy Butterfield's search violated the Fourth Amendment to the United States Constitution, we reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of August 7, 2011, which was a Sunday, Deputy But-terfield attempted to serve a protective order at 8055 North State Road 267 in Brownsburg... A tree along the driveway to the property bore a sign that read, "please use front door only!!!" Appellant's App. p. 20. Deputy Butterfield approached the front door and knocked several times with no response. Deputy Butterfield then walked to the back of the residence. A garage door near the backyard area bore a sign that read, "no trespassing[.]" Appellant's App. p. 20. In order to reach the back door, Deputy Butterfield had to pass through the closed gate of a chain-link fence, which gate bore signs that read "no trespassing" and "please use front door only[.]" : Appellant's App. p. 19. A paved sidewalk led from the fence gate to a back patio, which afforded access to the back door.

On his way to the back door, Deputy Butterfield noticed a circular pile of firewood in the back yard that "seemed a little strange." Appellant's App. p. 20. Deputy Butterfield knocked on the back door several times, again receiving no response. As he was leaving, Deputy Butterfield noticed a stack of brush leading from the firewood circle and, when he took two steps off of the back patio, could see a "grow" inside the cirele. Appellant's App. p. 20. Deputy Butterfield approached the circle and observed that it contained marijuana plants. Deputy Butterfield called his supervisor, Sergeant Clark.

Sergeant Clark arrived at the residence with Detectives Sadler and Wing. Detective Sadler knocked on the front door and announced himself but received no response. Detective Sadler noticed an open window to the left of the front door, knocked on the window, and again announced himself. An individual responded, "who is it?", and Jadrich and his wife, the owners of the residence, opened the front door. Appellant's App. p. 21. Detective Sadler told Jadrich that he wished to speak with him about the marijuana plants in the backyard. Jadrich invited Detective Sadler and the other officers into his residence. Jadrich consented to a search of his home, which uncovered a smoking pipe with marijuana residue found on an ottoman in the back living room. The plants from the cirele were tested and found to be marijuana with a total weight of 188.9 grams.

On August 9, 2011, the State charged Jadrich with Class D felony marijuana possession and Class A misdemeanor paraphernalia possession. On February 29, 2012, Jadrich filed a motion to suppress evidence. On March 28, 2012, the trial court held a hearing on Jadrich's suppression motion. On April 24, 2012, the trial court denied Jadrich's suppression motion. On January 18, 2018, a berich trial was conducted, and the parties submitted "Revised Stipulated Facts." The trial court found Jadrich guilty as charged, entered judgment of conviction for marijuana possession as a Class A misdemeanor and Class A misdemeanor paraphernalia possession, and sentenced Jadrich to 365 days of incarceration with 363 suspended to probation.

DISCUSSION AND DECISION

Whether the Trial Court Abused its Discretion in Admitting Evidence Found in Jadrich's Back Yard and House

Although Jadrich frames the issue as a challenge to the denial of his pretrial motion to suppress evidence, he actually appeals from the allegedly erroneous admission of evidence at trial. The admissibility of evidence is within the sound discretion of the trial court. Curley v. State, 777 N.E.2d 58, 60 (Ind.Ct.App.2002), trans. de-mied. We will only reverse a trial court's decision on the admissibility of evidence upon a showing of an abuse of that disceretion. Id. An abuse of discretion may occur if the trial court's decision is clearly against the logic and effect of the facts and cireumstances before the court, or if the court has misinterpreted the law. Id. The Court of Appeals may affirm the trial court's ruling if it is sustainable on any legal basis in the record, even though it was not the reason enunciated by the trial court. Moore v. State, 839 N.E.2d 178, 182 (Ind.Ct.App.2005), trans. denied. We do not reweigh the evidence and consider the evidence most favorable to the trial court's ruling. Hirshey v. State 852 N.E.2d 1008, 1012 (Ind.Ct.App.2006), trans. denied. Jadrich contends that the admission of the marijuana evidence found in his back yard violates both the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution, arguing that Deputy Butterfield's act of opening the fence gate and walking into his backyard was unconstitutional.

Fourth Ainendment

The Fourth Amendment to the United States Constitution provides that "[the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." "The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State." Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). "In Wolf [v. People of State of Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) (overruled on other grounds by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961))] we recognized '(t)he security of one's privacy against arbitrary intrusion by the police' as being 'at the core of the Fourth Amendment' and 'basic to a free society'" Id.

Both parties agree that Deputy Butter-field entered the curtilage of Jadrich's home when he walked through the gate and into the back yard. As the United States Supreme Court has stated,

The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself. The concept plays a part, however, in interpreting the reach of the Fourth Amendment. Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924), held that the Fourth Amendment's protection accorded "persons, houses, papers, and effects" did not extend to the open fields, the Court observing that the distinction between a person's house and open fields "is as old as the common law. 4 Bl. Comm. 2283, 225, 226."
We reaffirmed the holding of Hester in Oliver v. United States, [466 U.S. 170, 104 S.Ct. 1785, 80 L.Ed.2d 214 (1984) ]. There, we recognized that the Fourth Amendment protects the curtilage of a house and that the extent of the curti-lage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself. 466 U.S., at 180; 104 S.Ct., at 1742. We - identified the central component of this inquiry as whether the area harbors the "intimate activity associated with the 'sanctity of a man's home and the priva-cles of life"" Ibid. (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 582, 20 L.Ed. 746 (1886)).
Drawing upon the Court's own cases and the cumulative experience of the lower courts that have grappled with the task of defining the extent of a home's curtilage, we believe that curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses. to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. See California v. Ciraolo, 476 U.S. 207, 221, 106 S.Ct. 1809, 1817, 90 L.Ed.2d 210 (1986) (POWELL, J., dissenting) (citing Care v. United States, 231 F.2d. 22, 25 *(C.A.10), cert. demied, 351 U.S. 982, 76 S.Ct.:788, 100 L.Ed. 1461 (1956); United States v. Van Dyke, 648 F.2d 992, 998-994 (C.A.4 1981)). We do not suggest that combining these.factors produces a finely tuned formula that, when mechanically applied, yields a "correct" answer to all extent-of-curtilage questions. Rather, these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration-whether the area in question is so intimately tied to the home itself that it should be placed under the home's "umbrella" of Fourth Amendment protection.

U.S. v. Dunn, 480 U.S. 294, 300-01, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987) (footnotes omitted).

As the Indiana Supreme Court has noted, however, not all police intrusions into the curtilage violate the Fourth Amendment:

[Plolice entry onto private property and their observations do not violate the Fourth Amendment when the police have a legitimate investigatory purpose for being on the property and limit their entry to places visitors would be expected to go, such as walkways, driveways, and porches. "The route which any visitor to a residence would use is not private in the Fourth Amendment sense, . and thus if police take that route for the purpose of making a general inquiry or for some other legitimate reason, they are free to keep their eyes open...." 1 Wayne R. LaFave, Search and Seizure: A Treatise on The Fourth Amendment § 2.3(e), at 592-93 (4th ed. 2004) (internal quotations and footnotes omitted). See also United States v. French, 291 F.3d 945, 9538 (7th Cir.2002) (quoting LaFave); United States v. Reyes, 283 F.3d 446, 465 (2d Cir.2002), cert. denied, (quoting LaFave); Divello v. State, 782 N.E.2d 433, 487 (Ind.Ct.App.2003), trams. denied, (quoting LaFave).
Which areas of a given piece of real estate may reasonably be viewed as open to visitors is fact-specific. The determination will "necessarily include consideration of the features of the property itself, such as the existence of walkways and fences or other obstructions to access or viewing, the location of primary residential entryways, as well as the nature or purpose for the visitor's call." Divello, 782 N.E.2d at 488.

Trimble v. State, $42 N.E.2d 798, 802 (Ind.2006), adhered to on reh'g, 848 N.E.2d 278 (Ind.2006). '

As an initial matter, 'we have little trouble concluding that the route to Jad-rich's back door is not one that visitors would reasonably view as open to the public: The record contains no indication of any impediments to approaching the front door, the door that Deputy Butterfield did, in fact, approach first. In contrast, the record contains numerous indications that the back door was not open to the general public. There was prominent signage on a tree by the driveway, a garage door by the back yard, and the closed gate leading to the back yard warning visitors not to trespass in the back yard and only to attempt to contact residents via the front door. The back yard was also fenced in with a gate that was latched, further indicating that the back door was not the preferred mode of approach for visitors. The only factor in favor of finding the backdoor to be the primary entrance for visitors is the presence of a paved sidewalk leading from the fence gate to the back patio, but we conclude that that is far outweighed by other considerations.

Having determined that Deputy Butter-field entered into an area of Jadrich's property not open to the general public, we must address the question of whether that entry can be constitutionally excused. Professor LaFave has recognized that "legitimate police business may occasionally take officers to parts of the premises not ordinarily used by visitors,, as 'where knocking at the front door is unsuccessful in spite of indications that someone is in or around the house'" 1 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 2.3(f) (5th ed.). An examination of case law from Indiana and other jurisdictions is instructive.

The Indiana case closest to being on point is Hardister v. State, 849 N.E.2d 563 (Ind.2006). In Hardister, police responded to a residence after receiving a report of illegal drug activity, and, when they knocked on the door, two persons inside, upon realizing that police were at the door, fled toward the rear. Id. at 568. The police, believing that the two men might flee through a back door, followed a sidewalk from the front around to the back, where they observed, through a window, Hardister, pouring a white powder down the drain of the kitchen sink. Id. The Indiana Supreme Court held that the tip concerning drug activity, the location of the residence in an area known for drug trafficking, and the duo's flight were circumstances that justified the officers' entry into the curtilage and approach to the secondary entrance in order to pursue their investigation. Id. at 571. Put another way, the officers' entry into the eurti-lage was justified by observations that indicated criminal activity might be afoot.

A survey of relevant case law reveals numerous instances where other jurisdictions have addressed the question of whether a police entry into a curtilage or approach to a secondary entrance was justified. In Hardesty v. Hamburg Township, 461 F.3d 646 (6th Cir.2007), officers apprehended a minor for drunk driving and proceeded to the house where she claimed to have been drinking. Id. at 649. As the officers approached, they noticed a light go off inside the house, and, after receiving no response to their pounding on the front door, proceeded around to the back of the house where a back door could be accessed from a deck. Id. From their vantage point on the deck, officers made observations through the windows that caused them to enter the house. Id. at 649-50. In the civil case brought because of the allegedly illegal entry, the court concluded that the officers' actions were not unconstitutional, employing the following analysis:

Police officers are permitted to enter private property and approach the front door in order to ask questions or ask for consent to search the premises. But knocking at the front door will not always result in police officers being able to initiate the permitted conversation. The most obvious example is where nobody is at home. Eiven where someone is at home, knocking at the front door may go unheard. When the circumstances indicate that someone is home and knocking at the front door proves - insufficient to initiate a conversation with the person sought, officers should not be categorically prevented from carrying out their investigative function. Therefore, we hold that where knocking at the front door is unsuccessful in spite of indications that someone is in or around the house, an officer may take reasonable steps to speak with the person being sought out even where such steps require an intrusion into the eurti-lage. .In this case, there were indications that someone was present within the Hardesty home, knocking at the front. door proved unsuccessful, proceeding around the house and onto the back deck was a reasonable step, and that step was directed towards initiating a conversation with the person or persons in the house. Therefore, the Hamburg officers' entry into the curtilage in order to effectuate the knock and talk investigative technique did not violate Plaintiffs' Fourth Amendment rights.

Id.: at 654. The Hardesty court also noted that its approach was consistent with that taken in other Circuits. Id.

Several other Cireuits and state courts have addressed similar issues, with the weight of authority being fully consistent with the holding in Hardesty. See, eg., U.S. v. Taylor, 458 F.3d 1201, 1204-05 (11th Cir.2006) ("to the extent that the officers moved away from the front door and toward Taylor" when he walked out from behind the barn, "this small departure from the front door also does not trigger the protections of the Fourth Amendment"); Alvarez v. Montgomery Cnty, 147 F.3d 354, 358 (4th Cir.1998) (where police responding to 911 call about underage drinking party approached front door to notify residents of complaint but, seeing sign reading "Party In Back," walked around the house to the back yard where the party was going on and asked to see the host, such entry "did not exceed their legitimate purpose for being there" and thus "satisfied the Fourth Amendment's reasonableness requirement"); U.S. v. Anderson, 552 F.2d 1296, 1300 (8th Cir.1977) (concluding that an officer's entry into a back yard following an unsue-cessful approach to a front door was constitutional where officers observed a light on in the residence and heard a dog barking behind it); U.S. v. Bradshaw, 490 F.2d 1097, 1100 (4th Cir.1974), (concluding that an officer permissibly walked around to the back of the home in question, discovering incriminating evidence on the way, when there was some reason to believe that the resident, a suspected moonshiner, was inside at the time and an attempt at the front door was unsuccessful); State v. Beane, 770 N.W.2d 283, 288 (N.D.2009) ("The officers' 'small departure' from the front door of the residence to meet Beane coming from the unattached garage also did not trigger the protections of the Fourth Amendment"); State v. Dunn, 340 Mont. 31, 172 P.3d 110, 113 (2007) (defendant "did not have a reasonable expectation of privacy in his backyard area" vis-a-vis police entry to investigate neighbors' complaint of loud party there, where "noise was coming from the backyard"); Tryon v. State, 371 Ark. 25, 268 S.W.3d 475, 485 (2007) (officer "did not violate Tryon's constitutional rights by merely walking into the backyard after he saw Tryon take off running"); State v. Hider, 649 A.2d 14, 15 (Me.1994) (officer tracking thief from airport with tracking dog lawfully entered rear of defendant's curtilage where the officer discovered marijuana)

In summary, seemingly unanimous authority requires some justification before a police officer may permissibly venture into spaces not normally used by the public, such as approaching a secondary entrance to a house located in the curtilage. In some cases, this entry is justified by a reasonable belief that a person may be contacted by such entry, and in others by observations that indicate possible criminal activity. The record contains no evidence that indicates such justifications in this case, as Deputy Butterfield did not observe or hear anything before entering Jadrich's back yard that would have led a reasonable person to believe that any criminal activity was afoot, anybody was in the back yard, or knocking on the back door was more likely to result in contact with anyone inside the house.

The State, however, argues that Deputy Butterfield's entry into Jadrich's back yard was justified by the purpose of his being there, namely to serve a protective order. As Trimble made clear, the nature and purpose of the visitor's call can be relevant in such cases. Trimble, 842 N.E.2d at 802. In Divello, which the Trimble court cited with approval, this court elaborated on this concept:

The cireamstances determining which portions of property may reasonably be viewed as open to visitors are determined on a case-by-case basis and will necessarily include consideration of the features of the property itself, such as the existence of walkways and fences or other obstructions to access or viewing, the location of primary residential entryways, as well as the nature or purpose for the visitor's call. Common experience teaches that under normal cireum-stances, uninvited visitors coming to a residence to speak with an owner or resident are expected to come to the residence's most direct, obvious and prominent entryway, which in most cases is its front door.
Under most cirenmstances, uninvited visitors are also expected to leave by the same route after knocking on the front door and receiving no response. Of course, the nature of the cireumstances surrounding the visit can also affect the seope of the property open by implication. For example, persons previously invited to access a residence by alternate entryways, or those coming on truly pressing or emergency matters could reasonably be expected to seek out residents through areas other than the front door.

Divello, 782 N.E.2d at 488.

The State has failed to convince us that Deputy Butterfield's purpose for being at Jadrich's home-to serve a civil protective order-justified his foray into the back yard. The State points to no authority suggesting that the service of protective orders is a purpose that excuses police entry into areas that are otherwise constitutionally protected and off-limits. Likewise, our research has uncovered no such authority. Moreover, while we acknowledge that the service of protective orders is an important official function, there is no indication in the record of any emergency or special urgency particular to the order at issue here. The State has failed to establish that Deputy Butterfield was justified in entering Jadrich's back yard, an area specifically designated as off-limits to visitors, which is where he was when he found the marijuana. Consequently, the trial court erred in admitting evidence regarding the marijuana found in Jadrich's back yard. As the State acknowledged at oral argument, a conclusion that evidence regarding the marijuana was erroneously admitted leads necessarily to the conclusion that evidence regarding the smoking pipe was erroneously admitted as well. Without this evidence, both of Jadrich's convictions are fatally undercut.

We reverse the judgment of the trial court and remand with instructions to vacate both of Jadrich's convictions.

FRIEDLANDER, J., and BAILEY, J., concur.

      . We heard oral argument in this case on November 19, 2013, at Lawrence North High School in Indianapolis We wish to extend our gratitude for the hospitality of the students, staff, and faculty of Lawrence North and commend counsel for the high quality of their oral advocacy.

      . "Pirtle v. State ... established that Article I, section 11 of the Indiana Constitution requires that a person in custody explicitly waive the right to counsel before giving a valid consent to a search." Clarke v. State, 868 N.E.2d 1114, 1119 (Ind.2007).

      . Although there was a pretrial suppression hearing, the parties' "Revised Stipulated Facts" constitute the entirety of the record on which Jadrich was convicted. Moreover, there is no indication that either party incorporated the suppression record into the trial record. Both Jadrich and the State, however, rely on evidence collected at the suppression hearing in generating their fact patterns and supporting their arguments. For example, Jadrich argues that the protective order Deputy Butterfield was attempting to serve was stale, an argument based on evidence from the suppression record that the person named in the protective order no longer lived with Jadrich and that Jadrich had previously notified the sheriff's department of that fact. Neither party has filed a motion to strike or otherwise objected to the other's use of evidence from the suppression hearing. Under the circumstances, we shall treat the suppression record as effectively incorporated into the trial record.

      . Although the stipulated facts on which Jad-rich's convictions are based indicate only that Deputy Butterworth was attempting to serve a "no contact order/protection order[,]" Appellant's App. p. 20, the record also indicates that the order was a "civil paper[.]" State's Ex. Deposition of Brett Clark p. 4. Consequently, we infer that Deputy Butterfield was attempting to serve a civil protective order obtained pursuant to the Indiana Civil Protection Order Act. See Ind.Code ch. 34-26-5.

      . A holding going the other way but fully consistent with these cases is Estate of Smith v. Marasco, 318 F.3d 497 (3d Cir.2003), in which officers went to Robert Smith's residence to investigate a complaint from a neighbor. Id. at 501-02. When officers received no response at the front door, they went around to the back of house in search of Smith. Id. at 502. When in back, one officer noticed a red dot on the other officer and believed it to be a laser-sight from a firearm. Id. A series of events was triggered that culminated in Smith's death and a civil lawsuit filed against the officers by Smith's estate. Id. at 502-06. ~
      The Third Circuit held that
      [wlhere officers are pursuing a lawful objective, unconnected to any search for the fruits and instrumentalities of criminal activity, their entry into the curtilage after not receiving an answer at the front door might be reasonable as entry into the curtilage may provide the only practicable way of attempting to contact the resident, as in [U.S. v. Daoust, 916 F.2d 757 (Ist Cir. 1990) ], where the front door was inaccessible. Similarly, officers reasonably may believe, based on the facts available to them, that the person they seek to interview may be located elsewhere on property within the curtilage [and] an officer's brief entry into the curtilage to test this belief might be justified.
      Id. at 520. Applying these principles to the facts of the civil case against the officers, the Marasco court concluded that the trial court erred in granting the officers' summary judgment motion on the basis that their foray into Smith's back yard was constitutional. Id.


author: RILEY, Judge.

text:
    Michael W. PETERS, M.D. and Deaconess Hospital, Inc., Appellants-Defendants, v. Cynthia S. KENDALL and Michael J. Kendall, Appellees-Plaintiffs.
    No. 82A01-1802-PL-55.
    Court of Appeals of Indiana.
    Dec. 23, 2013.
    Rehearing Denied March 27, 2014.
    William W. Drummy, Holly A. Reedy, Wilkinson Goeller Modesitt, Wilkinson & Drummy, LLP, Terre Haute, IN, Douglas V. Jessen, Statham Allega & Jessen, LLP, Evansville, IN, Attorneys for Appellants.
    Karen B. Neiswinger, Indianapolis, IN, Reed S. Schmitt, Rhine Ernest, LLP, Evansville, IN, Attorneys for Appellees.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellants-Defendants, Dr. Michael W. Peters (Dr. Peters) and Deaconess Hospital, Inc. (Deaconess Hospital) (collectively, the Medical Group), appeal the trial court's denial of their motion for partial summary judgment in the medical malpractice suit brought by Cynthia S. and Michael J. Kendall (the Kendalls). |

We affirm.

ISSUES

The Medical Group raises four issues on appeal, and the Kendalls also raise four issues on cross-appeal. We find one of the cross-appeal issues is dispositive and restate it as the following: Whether the Proof of Claim filed by the Kendalls in the liquidation proceedings of Dr. Peters' insurer constitutes a binding contract.

FACTS AND PROCEDURAL HISTORY

On October 5, 2001, Cynthia Kendall (Cynthia), who was then forty-three years old, was at a festival when she began experiencing disorientation, difficulty with speech, and pain and weakness on the left side of her body. Her husband, Michael Kendall (Michael), drove her to the emer-geney room at Deaconess Hospital in Evansville, where she was examined by Dr. Peters. Dr. Peters ordered tests and diagnosed Cynthia as having experienced a "transient ischemic attack." (Appellees' Br. p. 2). After treating Cynthia with four baby aspirin, Dr. Peters discharged her without a neurological or neurosurgical consultation and informed her that she should follow-up with her family physician. At the time of her discharge, Cynthia's symptoms had not subsided, and, once home from the hospital, they only worsened. Approximately one hour later, she ealled for an ambulance and returned to Deaconess Hospital. After performing an ultrasound, medical personnel administered heparin to treat the dissection of Cynthia's right carotid artery. Despite the heparin therapy, two days later, a C.T. sean depicted "a large fronto-parietal in-faretion on the right side of her brain"-in other words, Cynthia had suffered a stroke. (Appellants' App. p. 51). Cynthia received anti-coagulation therapy and rehabilitation, but the stroke resulted in "permanent residual dysfunction[,]" including paralysis and weakness in half of her body. (Appellees' Br. p. 2).

At the time of Cynthia's stroke, Dr. Peters had medical malpractice insurance through PHICO Insurance Company of Pennsylvania (PHICO). Dr. Peters' policy, which was in effect from January 3, 2001 through January 3, 2002, had a liability limit of $250,000 per occurrence and an aggregate limit of $750,000. Four months after Cynthia's stroke, on February 1, 2002, the Commonwealth Court of Pennsylvania declared PHICO insolvent and appointed a Liquidator to commence liquidating the company. Thirty days later, all liability policies issued by PHICO were cancelled, at which point PHICO "ceased to pay for the costs of defense and for indemnification of settlements made or judgments entered in lawsuits against the insureds under those policies, instead providing a means for recovery from the assets of PHICO ... on claims within the coverage of those policies" by filing a Proof of Claim in the Liquidation. (Appellants' App. p. 163).

On February 24, 2003, the Kendalls filed a proposed complaint with the Indiana Department of Insurance (Department) in accordance with the Indiana Medical Mail-practice Act (Act). In their proposed complaint, the Kendalls alleged that the Medical Group's negligence had resulted in Cynthia's permanent disabilities. Subsequent to filing their proposed complaint, the Kendalls received a blank Proof of Claim form from the PHICO Liquidator. On February 9, 2004, Cynthia completed and signed the Proof of Claim form, omitting the amount of her claim and attaching a copy of the proposed complaint filed with the Department. Immediately prior to the signature line, the Proof of Claim contained a provision stating, in part, that "the undersigned hereby releases any and all claims which have been or could be made against such PHICO insured ... subject to coverage being accepted by the Liquidator." (Appellants' App. p. 42). On March 8, 2004, the Kendalls filed the Proof of Claim. Nearly five years after filing the proposed complaint, on December 19, 2007, the Department issued an opinion rendered by the Medical Review Panel, which determined that "[the evidence does not support the conclusion that [the Medical Group] failed to meet the applicable standard of care as charged in the complaint." (Appellants' App. pp. 67-69).

On March 10, 2008, the Kendalls filed their Complaint with the trial court, alleging the Medical Group was negligent based on the failure to promptly diagnose and appropriately treat Cynthia The Ken-dalls seek compensation for Cynthia's physical and emotional pain and suffering, permanent physical disability, impairment to earning capacity, and substantial medical expenses, as well as for Michael's loss of "services, society, companionship, consortium and other benefits of his marital relationship." (Appellants' App. p. 28).

As evidence refuting the conclusion of the Medical Review Panel, the Kendalls filed an affidavit of Dr. David L. Gregory (Dr. Gregory), a physician board-certified in Emergency Medicine. Dr. Gregory stated that he had reviewed Cynthia's medical and rehabilitation records and opined that the Medical Group had "deviated from the standard of care." (Appellants' App. p. 51). Specifically, Dr. Gregory concluded that Dr. Peters had "failed to initially diagnose and treat [Cynthia's] impending stroke or arrange for [a] specialty consultation|[,]" and discharging her with ongoing symptoms "was below the applicable standard of care and contributed to the delay in diagnosis." (Appellants' App. pp. 51-52). Furthermore, Dr. Gregory noted that "ilf the nurses had properly assessed [Cynthia] and documented their assessments, [she] may have received a more timely referral to a neurologist for proper testing, diagnosis, and treatment." (Appellants' App. p. 51). On July 29, 2009, the Kendalls executed a second, "identical set o[f] Proof of Claim forms" they received from the Liquidator, this time specifying a claim in the amount of $250,000. (Appel-leeg' Br. p. 3).

On December 3, 2010, the Medical Group filed its first motion for partial summary judgment with the trial court, claiming the Kendalls released their claim against Dr. Peters in the full amount of his "maximum lability of $250,000.00 under [the Act]." (Appellants' App. p. 34). On December 21, 2010, the Liquidator provided the Kendalls with a Notice of Claim Evaluation (NOCE), which valued their claim at $0.00. PHICO's claims analyst stated that, in arriving at this valuation, he had examined the evidence as a whole for "any breach of the applicable standard of care for emergency medicine physicians" and had concluded that the Kendalls did not establish "a violation of the standard of care and causation in particular." (Appellants' App. p. 163). On January 12, 2011, the Kendalls filed an objection to the NOCE, and, on November 23, 2011, the Liquidator issued a revised NOCE, which valued the Kendalls' claim at $250,000 based on PHICO's policy limit. On December 4, 2011, the Kendalls executed the revised NOCE per its directive: "If you ACCEPT the NOCE, sign and return one copy." (Appellants' App. p. 182). Shortly thereafter, PHICO made an interim payment to the Kendalls for 30% of the revised value of their claim-that is, $75,000.

On December 13, 2011, the trial court entered partial summary judgment for the Medical Group, concluding that Dr. Peters and Deaconess Hospital "are qualified health care providers under the [Act] with respect to [the Kendalls'] elaims in this ease." (Appellants' App. p. 149). As to the issue of whether the Kendalls had released their claim against Dr. Peters, however, the trial court denied the Medical Group's summary judgment motion, finding a genuine issue of material fact. Four months later, on April 30, 2012, the Medical Group filed a Renewed Motion for Partial Summary Judgment "based on new evidence that the Liquidator accepted coverage of [the Kendalls'] claim filed in the PHICO Liquidation proceeding." (Appellants' App. p. 150). On July 31, 2012, the trial court heard arguments on the renewed summary judgment motion. On November 20, 2012, the trial court denied the Medical Group's renewed motion based, again, on its finding "that genuine issues of material fact still exist as to whether [the Kendalls] released their claim against Dr. [Peters]" by filing a Proof of Claim in PHICO's liquidation (Appellants' App. p. 24).

On December 12, 2012, the Medical Group filed a motion to certify an interlocutory order for immediate appeal, which the trial court granted on January 2, 2013, and, on March 12, 2018, we accepted jurisdiction. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Finding one issue is dispositive of this summary judgment appeal, we address the Kendalls' claim on cross-appeal that the Proof of Claim, which includes a release of liability provision, lacks the essential elements to render it a binding contract.

I. Standard of Review

In reviewing a trial court's ruling on a motion for summary judgment, we apply the same standard used by the trial court. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind.2013). Summary judgment is appropriate when the designated evidentiary material establishes there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. If the moving party makes a prima facie showing that there are no factual disputes and that he is legally entitled to judgment, the burden shifts to the non-moving party to set forth specific evidence that demonstrates there is a genuine issue of material fact. Perry v. Driehorst, 808 N.E.2d 765, 768 (Ind.Ct.App.2004), reh'g denied, trans. demied. Our court will construe all facts and inferences in favor of the non-moving party and will resolve all doubts concerning the existence of an issue of material fact against the moving party. Manley, 992 N.E.2d at 673. In determining whether summary judgment is appropriate, we may rely upon any theory supported by the evidence. Thomas v, Deitsch, 743 N.E.2d 1218, 1219 (Ind.Ct.App.2001).

II. Release of Liability

We first note that the parties agree that the standard rules of contract law apply to documents purporting to release the liability of others. See Depew v. Burkle, 786 N.E.2d 1144, 1147 (Ind.Ct.App.2008), reh'g denied, trans. denied. The existence of a contract is a question of law. Conwell v. Gray Loon Outdoor Mktg. Grp., Inc., 906 N.E.2d 805, 813 (Ind.2009). Formation of a contract requires an offer and acceptance, consideration, and a meeting of the minds of the contracting parties. Id. at 812-13. In order for a contract to be valid and enforceable, the parties must intend to be bound, and the essential terms must be reasonably definite and certain. Sands v. Helen HCI, LLC, 945 N.E.2d 176, 180 (Ind.Ct.App.2011), trans. denied. It is well-settled that, in order to be valid, a release must be supported by consideration. Bogigian v. Bogigian, 551 N.E.2d 1149, 1151 (Ind.Ct.App.1990), reh'g denied.

In this case, the Kendalls filed two separate Proofs of Claim in PHICO's liquidation. Pursuant to Pennsylvania law, each contained the same release of liability provision:

If the foregoing Proof of Claim alleges a claim against a PHICO insured (third party claim), the undersigned hereby releases any and all claims which have been or could be made against such PHICO insured based on or arising out of the facts supporting the above Proof of Claim up to the amount of the applicable policy limits and subject to coverage being accepted by the Liquidator, regardless of whether any compensation is actually paid to the undersigned.

(Appellants' App. pp. 42, 64). The Ken-dalls contend that they did not "give a full and binding release" by signing the Proof of Claim because the Proof of Claim "in no manner constitutes a binding contract, as there is no offer, no acceptance, no consideration and no meeting of the minds." (Appellees' Br. pp. 10-11). The Kendalls argue that the document is not labeled as a contract or release, does not identify "the name of any party allegedly being released," and does not "purport to offer any specific amount to [the Kendalls] to settle their claim." (Appellees' Br. p. 10). Instead, the Kendalls note that the Ligqui-dator sent them a blank form, requesting that they fill in the circumstances giving rise to their claim and provide an "amount of claim." (Appellees' Br. p. 10). The Medical Group responds that the Proof of Claim satisfies the criteria of a contract because "there was valid consideration" as "the Kendalls were permitted to make a claim for damages in the liquidation proceeding." (Appellants' Reply Br. p. 3).

While the Medical Group is correct that monetary consideration is not required, there is no reasonably definite language in the release compelling PHICO to accept coverage, consider the merits of the Kendalls' claim, or pay one cent of compensation. "[Ilt is fundamental that a contract is unenforceable if it fails to obligate the parties to do anything'" Licocci v. Cardinal Assocs, 445 N.E.2d 556, 559 (Ind.1983). The Medical Group relies on a recent decision of this court in which we stated that "[alny consideration which will sustain a promise to pay will suffice" and argues that, "[wlithout making such a claim, [the Kendalls] would have not been entitled to recover any funds from the liquidation." Lily, Inc. v. Silco, LLC, 997 N.E.2d 1055, 1068-69 (Ind.Ct.App.2018); (Appellants' Reply Br. p. 3). In Ritenour v. Mathews, 42 Ind. 7, 14 (Ind.1873), our supreme court established that a promise to do what one "is already bound to do by law or by contract" is insufficient consideration. In the present case, PHICO's legal and contractual obligation to pay the malpractice damages preceded the Kendalls execution of the Proof of Claim.

First, PHICO's duties are governed by the Act, Ind.Code art. 34-18. Dr. Peters and Deaconess Hospital are qualified health care providers under the Act and are, thus, not liable in a malpractice action for any amount in excess of $250,000. I.C. §§ 34-18-2-14(1); 34-18-3-2; 34-18-14-3(b). If it is established that a physician's malpractice has caused damages greater than $250,000, any overage is paid from the Patient's Compensation Fund (Fund). 1.C. § 34-18-14-8(c). The Fund caps the total amount recoverable per injury at $1,250,000. I.C. § 34-18-14-3(a2)(8). Pursuant to the Act, Dr. Peters filed proof of his insurance coverage through PHICO with the Department and paid the required surcharge amount. See I.C. §§ 34-18-3-2, 34-18-5-1, 34-18-13-2. Dr. Peters' policy with PHICO was in force at the time of the alleged malpractice involving Cynthia; as such, Dr. Peters and PHI-CO might be liable to Cynthia to the extent and manner specified in the Act. I.C. § 34-18-138-1. By virtue of Dr. Peters' status as a qualified health care provider, the law presumes that his PHICO-issued policy includes a provision obligating PHI-CO "to pay an award imposed against its insured under [the Act]." .C. § 34-18-13, 4.

Second, PHICO's duties are governed by its insurance policy with Dr. Peters. In Indiana Insurance Guaranty Association v. Bedford Regional Medical Center, 863 N.E.2d 308 (Ind.2007), which arose from the same PHICO insolvency, our supreme court analyzed the payment of lost wages under the Indiana Insurance Guaranty Association (IIGA) Law of 1971, which requires the IIGA to pay for the claims that would have been covered under the policy of a now-insolvent insurer. Id. at 309-10 {citing 1.C. § 27-6-8-7).. In Indiana Insurance Guaranty Association, a hospital settled its malpractice lability with the patient's estate, and the court held that the IGA was obligated to reimburse the hospital because its insurance policy would have required PHICO to pay the full amount of the claim had PHICO not been insolvent. Id. at 309-11, 314. Based on the supreme court's holding, the Kendalls are entitled to compensation for Dr. Peters' malpractice, if established, notwithstanding PHICO's insolvency, and if PHI-CO fails to uphold the obligations of its policy, Dr. Peters must pay the first $250,000 of the Kendalls® damages and then pursue recovery of those costs from the IGA.

Accordingly, PHICO has a legal and contractual duty to pay its policy limit for any damages determined to be the result of Dr. Peters' malpractice. It is, therefore, insufficient as consideration for the release of all lability that the Kendalls were permitted to file a Proof of Claim that obligated PHICO to do no more than it was already bound to do. Even were we to accept the Medical Group's contention that it is sufficient consideration that, by filing the Proof of Claim, the Kendalls could potentially receive a payment without first having to prove the merits of their claim to a jury, we find nothing in the Proof of Claim demonstrating that the parties bargained for their respective benefits and detriments. Bogigian, 551 N.E.2d at 1151.

The mere presence of some incident to a contract which might, under certain circumstances, be upheld as a consideration for a promise, does not necessarily make it the consideration for the promise in that contract. To give it that effect, it must have been offered by one party, and accepted by the other, as one element of the contract.

Id. (quoting Fire Ins. Assoc., Ltd. v. Wickham, 141 U.S. 564, 579, 12 S.Ct. 84, 835 L.Ed. 860 (1891)). Because we conclude, as a matter of law, that the release is not a binding contract for lack of consideration, we need not address the remaining elements of contract formation or the parties' arguments concerning their intent in signing the release, the ambiguity of the release, and the conflict of Pennsylvania and Indiana laws regarding the validity and effect of the release.

CONCLUSION

Based on the foregoing, we conclude that the trial court appropriately denied the Medical Group's partial summary judgment motion because the Kendalls did not release the Medical Group from liability by filing a Proof of Claim in the PHICO liquidation. -

Affirmed.

MAY, and VAIDIK, JJ. coneur.

      . The Medical Group's issues, which we have restated, are as follows: (1) whether a release provision included in the Proof of Claim is ambiguous; (2) whether the parties' intent in executing the release is admissible; (3) whether the release is sufficient to discharge Dr. Peters' medical malpractice liability; and (4) whether the release discharges Deaconess Hospital's vicarious liability as Dr.. Peters' employer. The Kendalls' remaining cross-appeal issues, as restated, are as follows: (1) whether the trial court correctly denied the Medical Group's two summary judgment motions based on genuine issues of material fact; (2) whether the release is ambiguous; and (3) whether Indiana or Pennsylvania law governs this case.

      . Deaconess Hospital also filed proof of financial responsibility with the Department, listing its malpractice carrier as ProAssurance Indemnity Company, Inc. In the parties' designated materials, however, there is evidence that Deaconess Hospital may also be considered a "policyholder" of PHICO because it obtained the liability policies for its physicians under the pseudonym Physician Services of Deaconess Hospital.