author: ROBB, Chief Judge. PYLE, J., MARGRET G. ROBB, Chief Judge.

text:
    In re INDIANA NEWSPAPERS, INC., d/b/a The Indianapolis Star, Appellant, v. Jeffrey M. MILLER, et al., Appellees.
    No. 49A02-1211-PL-898.
    Court of Appeals of Indiana.
    Dec. 7, 2012.
    Order on Rehearing Jan. 18, 2013.
   PUBLISHED ORDER DISMISSING APPEAL

ROBB, Chief Judge.

STATEMENT OF THE CASE

The Indianapolis Star (“The Star”) has filed a motion to stay the trial court’s discovery order (“the Discovery Order”) pending appeal. See Ind. Appellate Rule 39(C). The Discovery Order compelled The Star to disclose the identity of an anonymous commentator to a news report posted on The Star’s website. The Star appeals the Discovery Order as a final judgment, but the plaintiffs, Jeffrey M. Miller and Cynthia S. Miller (“the Millers”), contend it is an interlocutory order. Thus, the threshold issue is whether we have subject matter jurisdiction to hear The Star’s appeal.

In its Notice of Appeal, The Star indicates that the basis for appellate jurisdiction is an appeal from a final judgment, as defined by Appellate Rule 2(H). The Star advances two principal arguments in favor of jurisdiction. First, The Star asserts that the Discovery Order is “the beginning and the end” of the case involving The Star, and that the Discovery Order is, thus, severable as a final, appealable judgment. The Star contends that the discovery dispute is a separate “case” against The Star in that the Discovery Order disposes of all issues and leaves nothing for further determination with respect to The Star, which is a non-party to the underlying case. See App. R. 2(H)(1). Thus, The Star reasons that this is not an interlocutory appeal but an appeal of a final order, Verified Response to Verified Motion for Emergency Telephonic Hearing at 2, and that The Star has properly appealed the Discovery Order as a matter of right, id. at 6.

Second, The Star asserts that Article VII, Section 6 of the Indiana Constitution guarantees “in all cases an absolute right to one appeal” and that “[n]o method of appeal exists here other than as a final, appealable order.” Id. at 8. Hence, The Star continues, the Discovery Order must be “deemed final by law.” See App. R. 2(H)(5).

We conclude that The Star’s argument that the Discovery Order is severable as a final judgment is a reprise of the “distinct and separate branch doctrine,” which our Supreme Court repudiated in Berry v. Huffman, 643 N.E.2d 327, 329 (Ind.1994), a doctrine which has been superseded by the requirement that the trial court “direct the entry of a final judgment” under Trial Rule 54(B). Thus, the Discovery Order cannot be considered a final, appealable judgment under Appellate Rule 2(H)(1) because it did not dispose of all claims as to all parties and cannot be considered a final, appealable judgment under Appellate Rule 2(H)(2) because the trial court did not expressly determine that there is no just reason for delay and direct the entry of the Discovery Order as a final judgment as to fewer than all the claims or parties under Trial Rule 54(B).

Accordingly, we hold that the Discovery Order is an interlocutory order which is not severable for appeal under the former, discredited “distinct and separate branch doctrine.” Further, The Star has not perfected the Discovery Order as a final judgment under Trial Rule 54(B). And we conclude that the Indiana Constitution guarantees an absolute right to one appeal in all cases, not from all orders, and that the Discovery Order is not deemed final by law under Appellate Rule 2(H)(5). Thus, we hold that we lack subject matter jurisdiction to consider The Star’s appeal on the merits and we dismiss the appeal. However, we continue the stay previously ordered by this court for seven (7) calendar days from the date of this order, at which time the stay shall automatically expire.

FACTS AND PROCEDURAL HISTORY

This is a second appeal following this court’s opinion in Miller v. Junior Achievement of Central Indiana, Inc. (In re Indiana Newspapers, Inc.), 963 N.E.2d 534 (Ind.Ct.App.2012) (“Miller /”). As described in detail in Miller I. the Millers have sued, among others, “DownWithThe-Colts,” an anonymous commentator on The Star’s website for defamation. The Star has vigorously defended against releasing the identity of the anonymous commentator.

Prior to our opinion in Miller I, the trial court ordered The Star to release the identity of the commentator. The Star immediately appealed the trial court’s discovery order. The Millers filed a motion to dismiss The Star’s appeal for lack of subject matter jurisdiction, but that motion was summarily denied by this court’s motions panel. Rulings by our motions panel are in fieri and may be re-visited by the writing panel, but the Millers did not re-assert their jurisdictional argument in Miller I, and this court held on the merits that the trial court erred in ordering The Star to release the commentator’s identity. Id. at 552-53. We reversed the trial court’s order and remanded with instructions that it “require [the Millers] to produce prima facie evidence to support only those elements of [their] cause of action that are not dependent on the commentator’s identity.” Id. at 552. We expressly excluded from the Millers’ burden any showing of actual malice, as that would be dependent on the commentator’s identity, id., and we further held that the commentator’s statement was, as a matter of law, defamation per se, which would allow the trial court to presume that the Millers had been damaged by the statement, id. at 550.

On remand, the trial court held an evi-dentiary hearing on the Millers’ discovery request. Following the hearing, on October 19, 2012, the court found as follows:

11. Based on the evidence presented ... and the Briefs submitted by both parties ... the balancing factors weigh in favor of Mr. and Ms. Miller as follows:
a. The statement made by “Down-WithTheColts” is defamatory per se and is unprotected, illegal speech. It is not political speech;
b. “DownWithTheColts” had no expectation of privacy;
c. Defamatory speech is illegal and is detrimental to the object of the defamatory speech; thus, chilling this type of speech is warranted and is good public policy;
d. “DownWithTheColts” is already a named Defendant in this matter; thus, Mr. and Ms. Miller require the identity of “DownWithTheColts” for purposes of the lawsuit, specifically to identify a defendant, but also generally as to the relationship “DownWith-TheColts” has to other parties in this lawsuit;
e. The Star is the only one who possesses this information.

Order Granting Plaintiffs’ Motion for Order Compelling Non-Party Discovery at 4. Accordingly, the court ordered The Star to produce the commentator’s identity by October 31.

On October 31, The Star filed an emergency motion to stay enforcement of the Discovery Order in the trial court. The court granted the stay until November 14. The court then amended its stay “until November 16, 2012[,] at which time The Star should seek any further stay from the Indiana Court of Appeals.” Order on The Indianapolis Star’s Motion to Stay Enforcement of October 19, 2012 Order and to Amend Order to Provide Required Security at 2.

On November 15, The Star filed its Motion to Stay Order Compelling Identification of Anonymous Speaker Pending Appeal in this court. We granted The Star’s motion until we could consider the parties’ arguments. Having held oral argument and having reviewed and considered the parties’ written submissions, for the reasons explained below we conclude that this court lacks subject matter jurisdiction over The Star’s appeal.

DISCUSSION

Oveniew

This court’s subject matter jurisdiction is specified by the Indiana Rules of Appellate Procedure adopted by our Supreme Court. See Ind. Const, art. VII, § 6. “The question of subject matter jurisdiction entails a determination of whether a court has jurisdiction over the general class of actions to which a particular case belongs.” Troxel v. Troxel, 737 N.E.2d 745, 749 (Ind.2000).

Whether [an] order was a final judgment governs the appellate courts’ subject matter jurisdiction, and unlike most contentions, lack of [subject matter] jurisdiction is not waived by the parties. Neither the parties nor the trial court can confer appellate jurisdiction over an order that is not appealable either as a final judgment or under Trial Rule 54(B). To the contrary, the lack of appellate jurisdiction can be raised at any time, and if the parties do not question subject matter jurisdiction, the appellate court may consider the issue sua sponte.

Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind.2003) (citing Albright v. Pyle, 637 N.E.2d 1360,1363 (Ind.Ct.App.1994)).

“[Dismissal for lack of subject matter jurisdiction takes precedence over the determination of and action upon other substantive and procedural rights of the parties.” Young v. Estate of Sweeney, 808 N.E.2d 1217, 1219 (Ind.Ct.App.2004) (citation and quotation marks omitted). “It is the duty of this court to determine whether we have jurisdiction before proceeding to determine the rights of the parties on the merits.” Allstate Ins. Co. v. Scroghan, 801 N.E.2d 191, 193 (Ind.Ct.App.2004). Jurisdiction is a question of law we review de novo. Young, 808 N.E.2d at 1219 (quotation marks omitted).

“ ‘The authority of the Indiana Supreme Court and Court of Appeals to exercise appellate jurisdiction is generally limited to appeals from final judgments.’ ” Ramsey v. Moore, 959 N.E.2d 246, 251 (Ind.2012) (quoting Allstate Ins. Co. v. Fields, 842 N.E.2d 804, 806 (Ind.2006)). Indiana Appellate Rule 5 defines the limits of our jurisdiction. That Rule provides in pertinent part:

A. Appeals From Final Judgments. Except as provided in Rule 4, the Court of Appeals shall have jurisdiction in all appeals from Final Judgments of Circuit, Superior, Probate, and County Courts, notwithstanding any law, statute or rule providing for appeal directly to the Supreme Court of Indiana. See Rule 2(H).
B. Appeals From Interlocutory Orders. The Court of Appeals shall have jurisdiction over appeals of interlocutory orders under Rule 14 except those appeals described in Rule 4(A)(3).

“Succinctly stated, a final judgment ‘disposes of all issues as to all parties thereby ending the particular case.’ ” Georgos, 790 N.E.2d at 451 (quoting Doperalski v. City of Michigan City, 619 N.E.2d 584, 585 (Ind.Ct.App.1993)). Indiana Appellate Rule 2(H) defines final judgments. According to that Rule:

A judgment is a final judgment if:

(1)it disposes of all claims as to all parties;
(2) the trial court in writing expressly determines under Trial Rule 54(B) or Trial Rule 56(C) that there is no just reason for delay and in writing expressly directs the entry of judgment (i) under Trial Rule 54(B) as to fewer than all the claims or parties, or (ii) under Trial Rule 56(C) as to fewer than all the issues, claims or parties;
(3) it is deemed final under Trial Rule 60(C);
(4) it is a ruling on either a mandatory or permissive Motion to Correct Error which was timely filed under Trial Rule 59 or Criminal Rule 16; or
(5) it is otherwise deemed final by law.

App. R. 2(H). Indiana Trial Rule 54(B) provides, in pertinent part, that “the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

jurisdiction may also lie from certain nonfinal, interlocutory orders. “An appeal may be taken from other inter-interorders if the trial court certifies its order and the Court of Appeals accepts jurisdiction over the appeal.” App. R. 14(B). A trial court’s certification of an interlocutory order is within its discretion and “upon motion by a party.” App. R. 14(B)(1). However, “[a]n appeal from an interlocutory order is not allowed unless specifically authorized by the Indiana Con-Constatutes, or the rules of court. The authorization is to be strictly con-conand any attempt to perfect an ap-apwithout such authorization warrants a dismissal.” Scroghan, 801 N.E.2d at 193.

The Star contends that, because Appellate Rule 2(H)(1) and Rule 14(B)(1) refer to “parties,” and The Star is a non-party, this appeal must be authorized under the “otherwise deemed final by law” provision in Rule 2(H)(5) and by Article VII, Section 6 of the Indiana Constitution. Article VII, Section 6 states:

Jurisdiction of Court of Appeals. The Court shall have no original jurisdiction, except that it may be authorized by rules of the Supreme Court to review directly decisions of administrative agencies. In all other cases, it shall exercise appellate jurisdiction under such terms and conditions as the Supreme Court shall specify by rules which shall, however, provide in all cases an absolute right to one appeal and to the extent provided by rule, review and revision of sentences for defendants in all criminal cases.

(Emphasis added.) According to The Star, “an absolute right to one appeal” entitles it to a direct appeal from the trial court’s Discovery Order against a non-party. The necessary and implied corollary to The Star’s argument is that The Star’s constitutional rights and, by representation, the constitutional rights of the anonymous commentator, will be violated if the Discovery Order is not deemed a final, appeal-able judgment. The Star presents what amounts to a constitutional challenge to the Trial Rules and Rules of Appellate Procedure governing appeals from final judgments and interlocutory orders.

Thus, we will address The Star’s contentions that, because it is a non-party, the Discovery Order is a final judgment as against The Star and, therefore, that The Star has a constitutional right to a direct appeal from the Discovery Order.

The Star has Standing as a Thirdr-Parby Representative

The Star’s reading of our rules of procedure is premised on its status as a non-party to these proceedings. The question presented is essentially a question of standing, namely, whether The Star has standing as a non-party to perfect this appeal under our rules of trial and appellate procedure. In Miller I, we held that The Star is the third-party representative of the anonymous commentator and, as such, The Star had standing to raise the First Amendment rights of the anonymous commentator as if they were The Star’s. 963 N.E.2d at 549. The same rule of law allows The Star to perfect an appeal under our existing rules of practice and procedure.

As we explained in Miller I, The Star has third-party standing to resist the Discovery Order on First Amendment grounds on behalf of the unnamed party as if The Star were itself a party. Id. “[W]hen a third-party entity, such as a newspaper, is subpoenaed to reveal the identity of an anonymous commentator who has used that third party as a forum for his anonymous speech, the third[ ]party has standing to contest the subpoena....” Id. “As a result,” we continued, “The Star has standing to argue these First Amendment issues on behalf of ‘DownWithThe-Colts.’ ” Id.

At oral argument, The Star asserted that it does not “stand in the shoes” of the unnamed defendant. On the one hand, we agree that the Star does not stand in the shoes of the unnamed defendant in that The Star is immune from liability. But it is undisputed that The Star is aligned with and has standing as a matter of law to act on behalf of “DownWithTheColts” before the trial court on the First Amendment issues and, to that extent, The Star does stand in the shoes of “DownWithThe-Colts.” This is known as jus tertii standing, under which media entities may assert the First Amendment rights of their readers and subscribers. See McViclcer v. King, 266 F.R.D. 92, 95 (WD.Pa.2010). This rule of law recognizes the singular importance of the First Amendment. While The Star is not named as a party, jus tertii standing gives The Star standing de jure as a media entity to act as a surrogate or proxy in asserting the First Amendment rights of an unnamed defendant, in other words, to act as a “third-party representative” of the unnamed defendant, as if The Star were a party. See Enterline v. Pocono Medical Center, 751 F.Supp.2d 782, 786 (M.D.Pa.2008) (newspaper had standing as “third-party representative” to assert First Amendment rights of anonymous commentators). It follows that, just as The Star has third-party standing in the trial court to represent the First Amendment rights of the unnamed defendant, “DownWithTheColts,” The Star also has third-party standing to pursue an appeal from the Discovery Order on First Amendment grounds in the Court of Appeals.

In other words, The Star could have asserted that it has the same jus tertii standing to pursue an appeal on the First Amendment issues as “DownWithThe-Colts” would have had if he or she had been identified and named as a party. Instead, The Star contends, in effect, that while a party must first comply with either Trial Rule 54(B) or Appellate Rule 14(B) to appeal from an interlocutory discovery order, a non-party has an absolute right to a direct appeal from an interlocutory discovery order. This asks too much. This would mean that non-parties have greater rights than parties have to appeal from a discovery order. A non-party cannot have greater rights than a party would have to perfect an appeal by the entry of a final judgment under Trial Rule 54(B) or a discretionary interlocutory appeal by certification under Appellate Rule 14(B). If, as The Star contends, the Discovery Order has all of the attributes of a complete and severable final judgment against The Star, then The Star should have moved the trial court to direct the entry of a final judgment under Trial Rule 54(B). If The Star’s de jure standing to pursue an appeal as the third-party representative of “DownWithTheColts” were disputed, that issue could have been litigated in the trial court in the first instance and in this court if necessary.

In sum, The Star is not a traditional non-party. In this unique First Amendment context, and where as here The Star seeks to vindicate the First Amendment rights of an unnamed party, The Star has standing as a de jure party to purse an appeal under Indiana Trial Rule 54(B). It would be incongruous for The Star to have standing in the trial court as a matter of law as a third-party representative acting as a proxy or surrogate for the unnamed defendant on the merits and not also have the same standing to pursue an appeal from the Discovery Order. But The Star does not have greater rights to pursue a direct appeal from a discovery order than a party would have.

The Distinct and Separate Branch of Litigation Doctrine

The Star declares, ipse dixit, that the Discovery Order is equivalent to a final judgment because it is “the beginning and the end” of The Star’s involvement in an ongoing case and that otherwise “The Star [is] without any meaningful remedy because it is not a party to the underlying case.” Verified Response to Verified Motion for Emergency Telephonic Hearing at 5. The Star then reasons that the “right to one appeal” provision in Article VII, Section 6 applies to the Discovery Order. We cannot agree.

Although a rule adopted by the Supreme Court is not a statute, it has the same binding force as any formally promulgated statute. The Cadle Company II, Inc. v. Overton, 857 N.E.2d 433, 435 (Ind.Ct.App.2006), trans. denied. When we interpret our rules of procedure, we follow the same rules of construction as when we interpret statutes. Carter-McMahon v. McMahon, 815 N.E.2d 170, 175 (Ind.Ct.App.2004). And it is a familiar canon of statutory interpretation that statutes should be interpreted so as to resolve issues on constitutional grounds as a last resort. City of Vincennes v. Emmons, 841 N.E.2d 155, 162 (Ind.2006). Just as with statutes enacted by the legislature, there is a presumption that the trial and appellate rules adopted by our Supreme Court are constitutional. Overton, 857 N.E.2d at 435. The burden is on the party challenging the constitutionality of a rule or statute. Id. We cannot assume that our Supreme Court would adopt rules that would violate the constitutional rights of non-parties.

In essence, The Star’s argument is an attempt to resurrect the “distinct and separate branch of the litigation” doctrine. In Berry, our Supreme Court explained:

prior to the adoption of the Indiana Rules of Trial Procedure in 1970[,] Indiana case law held that a judgment was final and appealable even if it did not dispose of all the issues as to all the parties, so long as it disposed of “a distinct and definite branch of the litigation[.]” See, e.g., Guthrie v. Blakely (1955), 234 Ind. 167, 125 N.E.2d 437. In multiparty litigation, this meant that an order finally determining all of the issues and claims raised by one of the parties was final. If that party failed to perfect a timely appeal from that judgment, he- lost his right to appeal. See Washington v. Chrysler Corp. (1964), 137 Ind.App. 482, 200 N.E.2d 883.
This scheme, however, often left litigants uncertain whether to pursue an appeal that might be dismissed as premature or risk losing their right of appeal altogether. Following the federal model, we adopted Indiana Trial Rules 54(B) and 56(C) in an effort to provide greater certainty to the parties and to strike an appropriate balance between the interest in the speedy review of certain judgments and the inefficiencies of piecemeal appeals. See 3 William F. Harvey, Indiana Practice: Rules of Procedure Annotated § 54.2 at 480-82 (2nd ed. 1988 & Supp. 1993).
We hold today that the certification requirements of Trial Rules 54(B) and 56(C) supersede the distinct and definite branch doctrine. Accord Stanray Corp. v. Horizon Construction, Inc. (1976), 168 Ind.App. 164, 342 N.E.2d 645 (same); see also Evansville-Vanderburgh School Corp. v. Evansville Teachers Ass’n (1986), Ind.App., 494 N.E.2d 321. Judgments or orders as to less than all of the issues, claims, or parties remain interlocutory until expressly certified as final by the trial judge. To the extent that ... cases support the distinct and definite branch doctrine, they are overruled. Were we to hold otherwise, litigants would again be left to guess whether or not a given order was appealable. This is precisely the situation that T.R. 54(B) and 56(C) were drafted and adopted to prevent.

643 N.E.2d at 328-29. We note that while Trial Rule 54(B) refers to claims and parties, unlike Appellate Rule 14(B), no motion by a “party” is required to activate Trial Rule 54(B).

The Star contends that the Discovery Order must be deemed a final judgment, and that a stay pending appeal is necessary, because The Star would not otherwise be able to vindicate its “constitutional rights against compelled disclosure of anonymous sources who exercise their rights to free speech.” Verified Response to Verified Motion for Emergency Telephonic Hearing at 3. But to hold that the Discovery Order is a final, appealable judgment would require that we ignore our Supreme Court’s holding in Berry that “the certification requirements of Trial Rule 54(B) ... supersede the distinct and definite branch doctrine” and that “£j]udg-ments or orders as to less than all of the issues, claims, or parties remain interlocutory until expressly certified by the trial judge.” 643 N.E.2d at 329. And, again, in Martin v. Amoco Oil Co., our Supreme Court reiterated the Berry holding that, “[a] judgment or order as to less than all of the issues, claims, or parties in an action may become final only by meeting the requirements of T.R. 54(B).” 696 N.E.2d 383, 385 (Ind.1998). Indeed, Trial Rule 54(B) is emphatic and unambiguous that, unless the trial court makes a determination and directs the entry of a final judgment as provided in that rule, “in other cases a judgment, decision or order as to less than all the claims and parties is not final.” Recourse to Trial Rule 54(B) certification is not limited to “parties,” even though The Star is a third-party representative, and The Star could have sought to have the Discovery Order declared final under Trial Rule 54(B), which would have given this court jurisdiction under Appellate Rule 2(H)(2). But The Star did not ask the trial court to direct the entry of final judgment on the Discovery Order under that rule, and The Star cannot circumvent the holding in Berry merely by declaring that the Discovery Order completes the case against The Star and is, therefore, a final, appealable order. That determination is vested in the trial court. As such, the Discovery Order is not final, and it is not appealable under Trial Rule 54(B).

As noted above, discovery orders are interlocutory orders, not final judgments. See State v. Hogan, 582 N.E.2d 824, 825 (holding that an order to compel the production of documents during discovery “is appealable only ... if the trial court certifies it for interlocutory appeal and the court on appeal decides to accept the appeal”). Thus, The Star’s constitutional interpretation would require that we equate interlocutory orders against non-parties with final judgments, which we cannot do. Further, The Star’s interpretation of the Article VII, Section 6 term “in all cases” would mean that the Indiana Constitution guarantees not only the right to an appeal from final judgments but also to an appeal from interlocutory orders. Indeed, as we have noted, The Star contends that Appellate Rule 14(B) applies only to “a party,” and that even if Appellate Rule 14(B) certification were available to non-parties, the remedy of a discretionary interlocutory appeal “is not adequate because it is not certain, i.e., it does not begin to provide the ‘absolute right to one appeal’ guaranteed by the Indiana Constitution.” Verified Response to Verified Motion for Emergency Telephonic Hearing at 6; see footnote 3, supra. If The Star’s argument were correct, Appellate Rule 14(B), which governs discretionary interlocutory appeals, would be unconstitutional per se because such appeals are not appeals as of right but can only be perfected if the trial court certifies its order and the Court of Appeals accepts jurisdiction. The Star’s argument is, in effect, a constitutional challenge to the distinction between interlocutory appeals as of right under Appellate Rule 14(A) and discretionary interlocutory appeals under Appellate Rule 14(B). This argument is a bridge too far.

We hold that the Discovery Order is not a final, appealable judgment under our Trial or Appellate Rules, and that the Indiana Constitution does not guarantee The Star the right to a direct appeal of an interlocutory discovery order.

CONCLUSION

In sum, we do not have authority under the Rules of Appellate Procedure to treat an interlocutory order as if it were a final judgment. The distinction between interlocutory orders and final judgments is well-established and supported by abundant authority, including both the trial and appellate rules and a significant number of reported cases. The rules of practice and procedure are clear that not all interlocutory orders can be appealed. App. R. 5; see Hogan, 582 N.E.2d at 825-26 (under former Appellate Rules 4(B)(1) and 4(B)(6), order to compel production of documents not appealable as of right but only as discretionary interlocutory appeal). Further, again, neither the parties nor the trial court can confer appellate jurisdiction over an order that is not appealable either as a final judgment or under Trial Rule 54(B). Georgos, 790 N.E.2d at 451. And our Supreme Court has emphatically repudiated the distinct and separate branch doctrine advanced by The Star that would treat the interlocutory Discovery Order at issue here as if it were an appealable, final judgment. See Berry, 643 N.E.2d at 328-29; Martin, 696 N.E.2d at 385. Finally, if appellate subject matter jurisdiction included the absolute right of non-parties to appeal from interlocutory discovery orders, there would be no end to appeals from such orders, and the Court of Appeals would become entangled in discovery disputes. The management of discovery is first the responsibility of the parties. Our discovery rules are designed to allow liberal discovery with a minimum of court involvement in the discovery process. See Richey v. Chappell, 594 N.E.2d 443, 445 (Ind.1992). Discovery orders are subject to intervention by the trial courts but are rarely the business of the appellate courts.

Accordingly, we must reject The Star’s contention that the Discovery Order is a final, appealable judgment. We hold that The Star has standing in its capacity as the de jure representative of an unnamed defendant on First Amendment issues to seek an appeal from the Discovery Order under Trial Rule 54(B) and Appellate Rule 2(H)(2). And we reject the argument that under Article VII, Section 6 of the Indiana Constitution, the Discovery, Order must be “deemed final by law” under Appellate Rule 2(H)(5) in order to preserve The Star’s constitutional right to appeal from the Discovery Order. The Star does not have an absolute right to appeal an interlocutory discovery order any more than a party would have an absolute right to appeal a discovery order in any other case.

Thus, we are obliged to dismiss this appeal for lack of subject matter jurisdiction.

Having reviewed the matter, the Court FINDS AND ORDERS AS FOLLOWS:

1. Because this Court lacks subject matter jurisdiction over this appeal, this appeal is DISMISSED.

2. The stay ordered by this court pending our review of the parties’ arguments shall remain in effect for seven (7) calendar days from the date of this order, at which time the stay shall automatically expire.

3. The Appellant, Indiana Newspapers, Inc. d/b/a The Indianapolis Star’s, Motion for Leave to File a Reply in Support of Appellant’s Motion for Stay is DENIED AS MOOT.

4. The Clerk of this Court is directed to serve copies of this order on the parties, the trial court, and the Clerk of the Marion Circuit & Superior Courts.

5. The Clerk of the Marion Circuit & Superior Courts is ordered to file a copy of this order under Lower Cause No. 49D07-1003-PL-14761, and, pursuant to Indiana Trial Rule 77(D), the Clerk shall place the contents of this order in the Record of Judgments and Orders.

6. The Clerk of this Court is directed to send copies of this order to the Thomson Reuters West Publishing Company and to all other companies, services, and individuals to whom published opinions and orders are normally sent.

NAJAM and BROWN, JJ, concur.

PYLE, J.,

dissents.

The majority holds that The Star’s appeal must be dismissed because it is not a final judgment. I respectfully dissent. The majority ably argues that Indiana Trial Rule 54(B) and the rule announced in Berry v. Huffman, 643 N.E.2d 327 (Ind.1994) permit shoehorning The Star into this litigation as a party. However, I submit that the shoe does not fit.

It is important to remember that the Millers sought information in The Star’s possession through the use of a subpoena. As a result, The Star has chosen to contest the basis for that subpoena and subsequent order compelling disclosure. In other words, it has invoked due process interests in making sure that it is legally obligated to comply with the subpoena, including appellate review. To be sure, allowing The Star to seek appellate review of the trial court’s latest order slows down the litigation process initiated by the Millers. However, due process interests should trump concerns about expediting litigation.

My view is that Trial Rule 54(B) and Berry apply to parties involved in the underlying litigation, not to The Star. Another panel of this Court correctly saw The Star as a non-party seeking appellate review of a trial court’s order. It seems unreasonable to expect a non-party to seek appellate review using a Trial Rule designed for parties (The Star is not raising a claim for relief under Trial Rule 54(B) and is not a party to the litigation). Preventing The Star from seeking appellate review of a new court order seems to change the rules of the road. For these reasons, I would respectfully submit that we have jurisdiction to hear the appeal.

MARGRET G. ROBB, Chief Judge.

PUBLISHED ORDER ON REHEARING

The Indianapolis Star (“The Star”) has filed a petition for rehearing (“Petition”) following our December 7, 2012, Published Order Dismissing Appeal for lack of jurisdiction (“Order”). The Millers have not filed a response to the Petition.

In its original briefing, The Star maintained that the Discovery Order at issue here was a final judgment eligible for direct appeal. When we scheduled oral argument on The Star’s Motion to Stay, we asked the parties “to address whether the court has jurisdiction to consider the trial court’s discovery order.” We rejected The Star’s arguments for the reasons stated in our Order. Now The Star advances a number of additional arguments as grounds for the exercise of jurisdiction in this case. It is a well-settled rule that a party may not advance new arguments on rehearing, and, to the extent the Petition breaks new ground, it is out of bounds. Carey v. Haddock, 881 N.E.2d 1050, 1051 (Ind.Ct.App.2008), trans. denied. When a party offers new arguments in a petition for rehearing, we usually deny the petition. Nevertheless, we have granted the Petition to consider the additional reasons The Star now presents for this court to exercise jurisdiction.

As a preliminary matter, we address The Star’s contention that “it is fundamentally unfair to punish The Star with dismissal of an appeal for following the identical procedure which led to success in the face of a jurisdictional challenge and the appeal on the merits” in the first appeal. Petition at 3-4; see Miller v. Junior Achievement of Central Indiana, Inc. (In re Indiana Newspapers, Inc.), 963 N.E.2d 534 (Ind.Ct.App.2012) (“Miller I”). We take such a charge of unfairness seriously, but this court’s decision is not unfair. Rather, it would be not only unfair but an abuse of discretion for this court to exercise jurisdiction over an appeal in which we lack subject matter jurisdiction. The first principle of adjudication is that a court must have subject matter jurisdiction before it can address the merits of a case. This principle is not specific to these parties or this case. See Allstate Ins. Co. v. Scroghan, 801 N.E.2d 191, 193 (Ind.Ct.App.2004) (“It is the duty of this Court to determine whether we have jurisdiction before proceeding to determine the rights of the parties on the merits.”), trans. denied. With that in mind, we will briefly address the four arguments that The Star has raised in its Petition.

First, The Star contends that the jurisdictional issue is controlled by the law of the case, namely, that, “[t]his appeal came to this Court by the same procedural route” as did the first appeal. Petition at 2. The law of the ease doctrine is a discretionary rule of practice. Haskell v. Peterson Pontiac GMC Trucks, 609 N.E.2d 1160, 1163 (Ind.Ct.App.1993). The writing panel in Miller I did not address jurisdiction. See William A. Ramsey, Appealing Orders Before a Case Ends: Dos, Don’ts and Modest Proposals, 56 Res Gestae, Dec. 2012, at 13, 19 n.59 (“[Ujnfortunately, the published decision [in Miller I ] did not include a jurisdictional discussion. Thus, we do not know the grounds on which the motions panel determined that appellate jurisdiction existed.”). Further, as we explained in the Order, “the lack of appellate jurisdiction can be raised at any time,” and it can be raised by a party or by the court sua sponte. Order at 6 (quoting Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind.2008)). We have a continuing duty to take notice of our lack of jurisdiction. Wesley v. State, 696 N.E.2d 882, 882-88 (Ind.Ct.App.1998) (“Without proper certification, we have no jurisdiction to entertain the appeal.”). Thus, we will not apply the discretionary law of the ease doctrine to impute a holding on the question of subject matter jurisdiction, which, as a matter of law, is not final and may be raised at any time. See id.; see also Wedel v. Am. Elec. Power Serv. Corp., 839 N.E.2d 1236, 1247-48 (Ind.Ct.App.2006) (declining to be bound by the discretionary law of the case doctrine where the issue was standing and, hence, jurisdiction over the case), trans. denied.

The Star also contends that, “given this Court’s express and implicit finding of jurisdiction in [Miller /], The Star had no reason to assert jurisdiction in this appeal on a discretionary basis, especially given the Indiana Constitution’s guarantee of the right to appeal.” Petition at 3. In its Notice of Appeal, and in its original briefing, The Star elected to assert jurisdiction on the grounds that the Discovery Order was a final judgment. As we explained in the Order, the trial court’s Discovery Order was not a final judgment, and The Star’s constitutional argument misunderstands the “absolute right to one appeal” provision in Article VII, Section 6 of the Indiana Constitution. Our Supreme Court has noted that “[t]he Judicial Study Commission commentary indicates that the ‘one appeal’ provision was to ensure that the rules allocating appellate jurisdiction would not ‘infringe [upon] the traditional right to one appeal’ ” and that “[t]he clause appears not as an enumerated right in Article I but as a restriction on our rule-making authority in Article VII.” Campbell v. Criterion Group, 605 N.E.2d 150, 158 n. 14 (Ind.1992). We have found no authority to suggest that the traditional right to one appeal preserved in Article VII, Section 6 includes the right to a direct appeal from interlocutory orders.

Second, The Star contends that the Indiana Supreme Court’s opinion in In re WTHR-TV, 693 N.E.2d 1 (Ind.1998), authorizes us to disregard the Rule 14(B) trial court certification requirement for a discretionary interlocutory appeal and to decide this case on the merits. In In re WTHR-TV, in a footnote, our Supreme Court did not require “technical compliance” with the predecessor to Rule 14(B), our previous Appellate Rule 4(B)(6), finding it “apparent from the record that the trial court found the dispute here to be of sufficient importance to warrant immediate appellate review.” Id. at 5 n. 2. Thus, The Star contends that In re WTHR-TV “squarely stands for the proposition that this Court may exercise jurisdiction in non-party cases such as this, particularly where the Supreme Court has found that a stay order necessarily constitutes the trial court’s certification that ‘the dispute here [is] of sufficient importance to warrant immediate appellate review.’ ” Petition at 8-9 (quoting In re WTHR-TV, 693 N.E.2d at 5 n. 2) (alteration original to Petition). The Star argues that In re WTHR-TV is “still good law.” Id. at 6. We are not persuaded that In re WTHR-TV carves out an exception that obviates compliance with Appellate Rule 14(B). Seven years later, in Daimler Chrysler Corp. v. Yaeger, 838 N.E.2d 449, 450 (Ind.2005), our Supreme Court reaffirmed that a discretionary interlocutory appeal pursuant to Rule 14(B) is available “only upon both certification by the trial court and acceptance by the Court of Appeals.”

In re WTHR-TV differs on its facts from this case. From its inception, In re WTHR-TV was a discretionary interlocutory appeal. In In re WTHR-TV, the appellant requested our Supreme Court to accept jurisdiction when it petitioned the court for .immediate transfer of jurisdiction. See Appellant’s Verified Petition for Immediate Transfer, In re WTHR-TV, 693 N.E.2d 1 (Ind.1998) (No. 49S00-9709-CR-484). But here The Star treated the Discovery Order as if it were a final judgment.

Thus, The Star did not simply fall short of “technical compliance” with Appellate Rule 14(B) but made no attempt to comply with that Rule. See In re WTHR-TV, 693 N.E.2d at 5 n. 2. Having expressly disavowed Rule 14(B) as a basis for jurisdiction in its Notice of Appeal and original filings with this court, The Star asks that we disregard more than “procedural irregularities.” See WTHR-TV v. Milan, 690 N.E.2d 1174, 1175 n. 2 (Ind.1998) (interlocutory companion case to In re WTHR-TV, 693 N.E.2d 1). The Star’s reliance on In re WTHR-TV as authority for the exercise of appellate jurisdiction in this case is misplaced.

Third, The Star relies on Indiana Appellate Rule 14(A). Specifically, The Star contends that the Discovery Order did not comply with Trial Rule 34(C) and that the trial court’s non-compliant order cannot evade the jurisdiction of the Court of Appeals. In other words, The Star reasons that, had the Discovery Order complied with Trial Rule 34(C), namely, had the trial court conditioned its Discovery Order upon the prepayment of damages to be proximately incurred by The Star or required an adequate surety bond or other indemnity, this appeal would be an appeal as of right under Rule 14(A)(1).

Presumably, The Star could have resisted the Discovery Order on the grounds that the trial court had failed to- comply with the payment of damages and indemnification provisions of Trial Rule 34(C) as a condition precedent to its compliance with the Discovery Order. But The Star has presented no argument or citation to the record on the issue of damages related to the Discovery Order. See Ind. Appellate Rule 46(A)(8)(a); see also Plank v. Cmty. Hosps. of Ind., Inc., 2013 WL 163828, 981 N.E.2d 49, 53 (Ind.2013) (“appellate review presupposes that a litigant’s arguments have been raised and considered in the trial court.”). And in Scroghan, 801 N.E.2d at 194, we expressly rejected the argument that a discovery order that requires the expenditure of money to comply with discovery is equivalent to an order for the payment of money appealable as a matter of right under Rule 14(A)(1). Moreover, this is a new argument by The Star, both on appeal and on rehearing, and The Star has not shown that it preserved this issue for appeal by raising it with the trial court. In sum, this is a hypothetical argument in that there is no basis in the current record that would support an appeal as of right under Trial Rule 34(C).

Fourth, in its original briefing The Star asserted, and it now reasserts, that Appellate Rule 66(B) should be available to save this appeal from a procedural default. We dismissed that argument, stating that “that rule does not supplement our jurisdiction to hear interlocutory appeals under Appellate Rule 14.” Order at 2 n.2 (citing Scroghan, 801 N.E.2d at 195-96); see also Daimler Chrysler Corp., 838 N.E.2d at 450 (agreeing with this court’s conclusion that Rule 66(B) “should not be interpreted as an alternative authorization to litigants to initiate interlocutory appeals apart from, or in addition to, the authorization provided” by Rule 14) (quoting Scroghan, 801 N.E.2d at 195).

In its Petition, The Star now asserts for the first time that neither Daimler Chrysler Corporation nor Scroghan prohibits the use of Appellate Rule 66(B) as a “proxy” for Trial Rule 54(B). Petition at 12. The Star contends that, if Appellate Rule 66(B) “does not apply here[,] it does not apply anywhere.” Petition at 12. But it cites no authority for its proposition that Rule 66(B) can be used to circumvent the requirements of Trial Rule 54(B). Here, it was obvious that the Discovery Order did not dispose of all the claims and parties, but The Star did not ask the trial court to enter the Discovery Order as a final judgment. While Rule 66(B) might cure a minor or insubstantial procedural defect, it will not salvage a total failure to comply with Trial Rule 54(B).

We affirm the Order in all respects.

Having reviewed the matter, the Court FINDS AND ORDERS AS FOLLOWS:

1. The Appellant’s Petition for Rehearing is GRANTED.

2. The December 7, 2012, Published Order Dismissing Appeal in this matter is AFFIRMED.

3. The Clerk of this Court is directed to serve copies of this order on the parties, the trial court, and the Clerk of the Marion Circuit & Superior Courts.

4. The Clerk of the Marion Circuit & Superior Courts is ordered to file a copy of this order under Lower Cause No. 49D07-1003-PL-14761, and, pursuant to Indiana Trial Rule 77(D), the Clerk shall place the contents of this order in the Record of Judgments and Orders.

5.The Clerk of this Court is directed to send copies of this order to the Thomson Reuters West Publishing Company and to all other companies, services, and individuals to whom published opinions and orders are normally sent.

      . We held oral argument on November 20, 2012.

      . The Star also raises an additional argument under Appellate Rule 66(B). But that rule does not supplement our jurisdiction to hear interlocutory appeals under Appellate Rule 14. Allstate Ins. Co. v. Scroghan, 801 N.E.2d 191, 195-96 (Ind.Ct.App.2004). Thus, we do not consider The Star's additional argument that we can exercise jurisdiction under Appellate Rule 66(B). Nor did The Star move the trial court to certify the interlocutory order for appeal pursuant to Indiana Appellate Rule 14(B).

      . In our view the Discovery Order is an interlocutory order under Indiana Appellate Rule 14(B) appealable only upon certification by the trial court and acceptance of jurisdiction by this court, neither of which happened here. See State v. Hogan, 582 N.E.2d 824, 825 (Ind. 1991) (discovery orders are not appealable as of right); see also State v. Bailey, 714 N.E.2d 1144, 1147 (Ind.Ct.App.1999) (accepting jurisdiction over a non-party discovery order after the trial court certified the order for interlocutory appeal under former Appellate Rule 4(B)(6)). Nonetheless, The Star asserts that the Discovery Order is appealable as a final judgment for "at least two reasons.” Verified Response to Verified Motion for Emergency Telephonic Hearing at 6. The Star asserts that, first, as a non-party, it does not have recourse to Indiana Appellate Rule 14(B) and, second, that an interlocutory appeal is inadequate because it is uncertain and does not provide the "absolute right to one appeal” guaranteed by the Indiana Constitution. Id.

      . Indiana Appellate Rule 14(A) defines a specific class of interlocutory orders that may be appealed as of right without prior certification from the trial court. There is no question that the Discovery Order is not appeal-able as of right under Appellate Rule 14(A). There is also no dispute that Appellate Rules 14(C) and 14(D) do not apply here.

      . In its Notice of Appeal, The Star specifically relied on Appellate Rule 2(H)(5) as the basis for its appeal. Aside from Article VII, Section 6 of the Indiana Constitution, The Star does not cite any authority suggesting that a discovery order may be "deemed final by law.” Ind. Appellate Rule 2(H)(5).

      . The Star’s reliance on Bailey v. Ind. Newspapers, Inc. (In re T.B.), 895 N.E.2d 321, 331 (Ind.Ct.App.2008), is misplaced. In that case, the trial court "closed T.B.'s CHINS case because of her death.” Id. at 328. The Star then filed its records request, and "[t]he juvenile court reopened the CHINS case for the limited purpose of determining whether the requested records could be released.” Id. On appeal from the court’s judgment on the release of the records, we held that the court's judgment was a final judgment. Id. at 331. In Bailey, the interlocutory orders did, in fact, "dispose of all claims as to all parties” in the CHINS proceeding. The facts of In re T.B. are readily distinguishable.

      . While The Star’s Petition was pending before this court, The Star filed an Emergency Motion to Accept Jurisdiction Pursuant to Indiana Appellate Rule 56(A) in our Supreme Court. On December 20, our Supreme Court denied The Star's emergency request, stating that “[j]urisdiction, to the extent it exists in this matter, remains with the Court of Appeals.” See Dec. 20, 2012, Docket Entry, No. 49A02-121 l-PL-898.

      . Among other reasons, we noted that The Star’s rationale for jurisdiction amounts to a constitutional challenge to our rules of procedure and leads to the conclusion that every interlocutory order would be subject to an immediate direct appeal. See Order at 15-16.

      . The Star also references, in passing, Indiana Appellate Rule 14(A)(3). Petition at 10. But The Star presents no argument that explains why or how Rule 14(A)(3) applies on these facts. Accordingly, any resort to this Rule is waived.


source: Caselaw Access Project

author: BAILEY, Judge.

license: Public Domain

text:
    PONZIANO CONSTRUCTION SERVICES INC., Appellant-Plaintiff, v. QUADRI ENTERPRISES, LLC, Appellee-Defendant.
    No. 45A05-1112-CC-661.
    Court of Appeals of Indiana.
    Dec. 12, 2012.

      Margo R. Babineaux, Meinzer & Babi-neaux LLC, St. John, IN, Attorney for Appellant.
    Barbara A. Bolling, Gary, IN, Attorney for Defendant.
   OPINION

BAILEY, Judge.

Ponziano Construction Services, Inc. (“Ponziano”) appeals the trial court’s decision granting partial recovery on its breach of contract claim against Quadri Enterprises, LLC (“Quadri”), denying foreclosure on its mechanic’s lien, and granting partial attorney’s fees based on its mechanic’s lien. We reverse the trial court’s award of $16,000 on the Contract and its denial of Ponziano’s request to foreclose on its mechanic’s lien; affirm the trial court’s award of $8,000 in attorney’s fees to Ponziano; and remand with instructions to the trial court to enter judgment in favor of Ponziano for $48,483.43, order sale of the property subject to the $45,549.43 lien, and determine the existence, extent, and outcome of a potential priority dispute between Ponziano and Wells Fargo.

Issues

Ponziano raises four issues for our review, which we consolidate and restate as:

I. Whether the trial court erred in awarding Ponziano only $16,000 on the April 30, 2009 contract (“the Contract”);
II. Whether the trial court erred in denying foreclosure on Ponziano’s mechanic’s lien; and
III. Whether the trial court abused its discretion in awarding Ponziano only $8,000 in attorneys’ fees.

Facts and Procedural History

On April 30, 2009, Dr. Kamartaj Quadri (“Dr. Quadri”), as owner of Quadri, contracted with Ponziano to construct a medical office (“the building”) on the site of a pre-existing structure at 200 South West Street, Crown Point, Indiana. Under the Contract, Quadri was to pay Ponziano $144,900. After execution of the Contract, Dr. Quadri turned over all negotiations for and supervision of the construction to her husband, Syed Quadri (“Syed”). In that capacity, Syed was present at the construction site almost daily throughout the construction process.

Syed and Ponziano discussed changes to the Contract, including installation of a metal roof instead of an asphalt shingle roof, lowering of the grade of the building, alteration of the handicap access ramp, and the cost of asbestos removal. Ponzi-ano drafted an addendum to reflect these changes (“the Addendum”), and presented it to Syed. Neither Dr. Quadri nor Syed signed the Addendum, but Syed, working through a registered architect, changed the blueprints for the building to reflect the changes in the Addendum, and filed the changed blueprints with the State of Indiana and the City of Crown Point. Ponziano constructed the building largely in accordance with the revised blueprints.

To finance the project, Quadri obtained a construction loan from Wells Fargo. Quadri and Ponziano agreed to payment in the form of three draws on Wells Fargo, each to be made at specified stages of completion of the building, and each to be authorized by Quadri. Quadri released the first two draws to Ponziano, for $44,029.14 and $47,587.43 respectively. Subsequently, Quadri complained to Ponzi-ano about the quality of workmanship for various items in the building, and withheld release of the third draw pending resolution of its concerns. When discussions between the parties failed, Ponziano filed a mechanic’s lien against the building in the amount of $45,549.43 with the Lake County Recorder’s office on January 8, 2010.

On March 18, 2010, Ponziano filed a three-count complaint alleging breach of contract and unjust enrichment, and seeking foreclosure of its mechanic’s lien and attorney’s fees. On May 21, 2010, Quadri filed an answer and counterclaim, alleging breach of contract, slander of title, and breach of an implied warranty of good workmanship. The trial court conducted a bench trial on November 3-5, 2011, and ordered both parties to file proposed findings of fact and conclusions of law. On November 21, 2011, the trial court entered, in relevant part, the following findings of fact and conclusions thereon:

FINDINGS OF FACT
1. That the Plaintiff[ ] ... contracted with the Defendant ] ... with the express purpose of constructing a medical office structure at 200 W. Walnut Street, Crown Point, Indiana.
3. That subsequent to the contract date of April 30, 2009, PONZIANO submitted an “Addendum” to QUADRI which was not signed. This document called for the elimination of the handicap ramp and the asphalt shingle roof in exchange for the installation of a metal roof. It also provided for the elimination of a basement leaving a crawl space in its place. Five Hundred ($500.00) Dollars was to be added to the contract amount for the removal of asbestos material from the job site.
4. That the total cost of construction was to be One Hundred Forty Four Thousand Nine Hundred ($144,900.00) Dollars.
6. That construction was shut down by the City of Crown Point for a two week period in July, 2009 for QUADRI’S failure to file a landscape design with the City of Crown Point.
7. That QUADRI was never issued an occupancy permit until October 20, 2009. Despite not being issued an occupancy permit prior to that date, QUADRI moved all of its office equipment, furniture and cabinets from its old office into the new structure while work was still being performed by PONZIANO.
8. That as a result of items being moved into the new structure prior to work being completed PONZIANO workers were hindered in fulfilling their duties, which duties included painting, taping and trim work.
9. That there was no punch list presented from QUADRI to PONZIANO, showing items that QUADRI felt should have been completed. Moreover, there was no walk-through performed by either party prior to QUADRI taking occupancy of the premises.
10. That QUADRI listed the following items that did not comport with good workmanship of PONZIANO:
(a) window in the handicapped restroom was broken
(b) varnish stains on the tile floor in the employee break area
(c) screens at five (5) of the windows were missing
(d) light in the employee bathroom as not working properly
(e) nail holes were not filled in
(f) countertops were not properly installed; edging was coming off; edging not properly trimmed on six (6) of the seven (7) units; caulking very sloppy
(g) poor painting throughout the entire office, i.e., primer showing through
(h) foundation defect which caused the floor to slope in the patient waiting area and the employee break area
(i) AT & T[sic] phone lines were not installed.
11. That QUADRI paid PONZIANO about sixty (60%) percent due it.
12. That PONZIANO’S evidence substantiated that work was performed in ninety (90) days of the date of the filing of the lien which comported with I[.]C[.] [§ ] 32-28-3 et al.
13. That PONZIANO’S lien action entitles it to recover reasonable attorney fees pursuant to I[.]C[.] [§ ] 32-28-3-14.
14. That there was no evidence or showing that the filing of the lien was improper.
CONCLUSIONS OF LAW
1. That the parties entered into a contract on April 30, 2009 for construction of a medical office structure at 200 W. Walnut Street, Crown Point, Indiana now known as 200 South West Street, Crown Point, Indiana.
3. That there is due and owing to PONZIANO from QUADRI the sum of Sixteen Thousand ($16,000.00) Dollars.
4. That pursuant to I[.]C[.] [§ ] 32-28-3-14(a) PONZIANO is entitled to reasonable attorney fees. The court now awards attorney fees to PONZIANO in the sum of Eight Thousand ($8,000.00) Dollars incurred by ROBERT L[.] MEINZER, JR.
5. The Court finds no damages against PONZIANO on QUADRI’S Counter claim other than QUADRI’S off-setting damage claim for PONZIANO for work poorly performed.

(App. at 5-8.) The trial court entered judgment for Ponziano in the amount of $16,000, and awarded Ponziano attorneys fees in the amount of $8,000. Ponziano now appeals.

Discussion and Decision

The trial court issued specific findings of fact and conclusions of law sua sponte A general finding or judgment will control as to issues upon which the trial court has not expressly found, and special findings will control only as to those issues that they cover. Clark, 861 N.E.2d at 1206. We will reverse special findings only when they are clearly erroneous, that is, when a review of the record leaves us firmly convinced that a mistake has been made. Id. A judgment is clearly erroneous when the findings of fact and conclusions thereon do not support it, and we will disturb the judgment only when there is no evidence supporting the findings or the findings fail to support the judgment. Id. However, we will affirm a general judgment upon any legal theory consistent with the evidence. Id. We neither reweigh the evidence nor judge the credibility of the witnesses. Id.

Breach of Contract

Ponziano contends that Quadri owes $51,587 on the Contract, and that the trial court erred in awarding Ponziano damages of only $16,000. Specifically, Ponziano argues that the trial court should have awarded it the balance of the full amount of the Contract as modified by the Addendum because Syed admitted that Ponziano had completed almost all of the work with only cosmetic repairs remaining, the trial court found that Ponziano received 60% of the price of the contract but made no finding as to the corresponding percentage of work provided by Ponziano, and the trial court made no finding as to the value of any offsetting claims of Quadri.

The computation of damages is a matter within the discretion of the trial court, and mathematical certainty is not required. Gasway v. Lalen, 526 N.E.2d 1199, 1203 (Ind.Ct.App.1988). However, the amount awarded must be supported by evidence in the record, and may not be based on mere conjecture, speculation, or guesswork. Id. In a breach of contract case, the measure of damages is the loss actually suffered because of the breach. Four Seasons Mfg., Inc. v. 1001 Coliseum, LLC, 870 N.E.2d 494, 507 (Ind.Ct.App.2007).

When the specific issue on review relates to a question of inadequate or excessive damages, we will not reverse a damage award if it is within the scope of the evidence before the trial court, and we neither reweigh the evidence nor judge the credibility of the witnesses. Randles v. Ind. Patient’s Comp. Fund, 860 N.E.2d 1212, 1230 (Ind.Ct.App.2007), trans. denied. To the extent Ponziano argues it did not receive the entire amount it sought at trial and now seeks on appeal, it appeals from a negative judgment. Clark, 861 N.E.2d at 1206. Ponziano may prevail only if it establishes that the judgment is contrary to law, that is, the evidence is without conflict and all reasonable inferences to be drawn from the evidence lead to only one conclusion but the trial court reached a different conclusion. Id.

The Contract was a fixed-price contract pursuant to which Ponziano agreed to complete the construction for $144,900. The Addendum added $500 to the stated price of the contract. Other than the Addendum, the record does not disclose a change order signed by either party or to which either party agreed. Therefore, the Contract price of $145,400, as modified by the Addendum prevails. Having been paid $91,616.57, Ponziano is still owed $53,783.43, absent reduction. See Four Seasons Mfg., Inc., 870 N.E.2d at 507. Quadri seeks to reduce the $53,783.43 owed to Ponziano by claiming damages due to delays in construction and defective work.

Delay

Dr. Quadri claims that the delayed opening of the office negatively impacted her business, causing her to lose new patients, to be unable to attend to her current patients, and to lose business she would have earned from October influenza vaccinations. (Tr. at 525.) Furthermore, Dr. Quadri allegedly lost approximately $12,000 to $15,000 of income during the period in which she could not see patients in her new office. (Tr. at 527-28.)

Neither the Contract nor the Addendum specifies a date certain for completion of the building. (App. at 13-16; Plaintiffs Ex. 4.) When the parties to an agreement do not fix a date certain for performance, the’law implies a reasonable time. The Winterton, LLC v. Winterton Investors, LLC, 900 N.E.2d 754, 764 (Ind.Ct.App.2009), trans. denied. What constitutes a reasonable time depends upon the subject matter of the contract, the circumstances attending the performance of the contract, and the situation of the parties to the contract. Id. However, a party cannot impede performance of the contract and then claim damages due to delay of performance. Scott-Reitz Ltd. v. Rein Warsaw Assoc., 658 N.E.2d 98, 104 (Ind.Ct.App.1995) (citing Maddox v. Wright, 489 N.E.2d 133, 137 (Ind.Ct.App.1986) (where the actions or conduct of one party to a contract prevent the other from performing his part, the other’s nonperformance will be excused)).

Here, Quadri moved into the office on September 30, 2009, twenty days before the occupancy permit was issued, and before Ponziano had finished construction. (Tr. at 71-72.) At trial, Ponziano presented testimony that the presence of Quadri’s equipment and furniture in the building impeded efforts to finish construction. (Tr. at 73.) Furthermore, Ponziano presented testimony that Quadri caused other delays, such as a two-week delay because the State of Indiana required a new blueprint after Quadri changed the building plans; a two-week delay caused by Qua-dri’s failure to file a landscape design with the City of Crown Point, and a one-week delay because Quadri wanted to change the size of certain windows. (Tr. at 52-53; App. at 6.) While Quadri’s ability to open for business may have been delayed due to construction efforts, a substantial portion of any such delay was self-imposed. As such, Quadri cannot now claim damages based on delay of performance. See Scott-Reitz Ltd., 658 N.E.2d at 104.

Defective Workmanship

Quadri further claims that it is entitled to set-off Ponziano’s recovery on the Contract because of Ponziano’s poor workmanship. The evidence discloses that there were several defects in the construction by Ponziano, including a broken window (Tr. at 507), varnish stains (Tr. at 507, 513), screens missing from windows (Tr. at 508-09), a non-working light (Tr. at 508-09), unfilled nail holes (Tr. at 379-80), improperly installed countertops (Tr. at 511), countertops with separated edging (Tr. at 509-10), sloppy caulking around counter-tops (Tr. at 513), primer showing through wall paint (Tr. at 509), a foundation defect causing floor sloping (Tr. at 457-61), and non-functional phone lines (Tr. at 507). However, the only evidence Quadri presented at trial regarding the cost of fixing the defects was a price of $4,800. (Tr. at 379-80.) Therefore, the only set-off to which Quadri is entitled within the scope of the evidence is $4,800. Randles, 860 N.E.2d at 1230.

Here, the appropriate damages award to Ponziano is $48,983.43: the $145,400 Contract price, less the $91,616.57 already paid to Ponziano, less the $4,800 set-off to which Quadri is entitled. The trial court’s reduction of Ponziano’s recovery to $16,000 is not within the scope of the evidence, and we reverse as clearly erroneous the trial court’s decision to award Ponziano only $16,000 on the Contract.

Mechanic’s Lien Foreclosure

Ponziano contends that the trial court’s denial of Ponziano’s request to foreclose on its mechanic’s lien was in error. While the trial court entered specific findings and conclusions regarding Ponziano’s mechanic’s lien, those findings and conclusions addressed the validity of the lien and attorney’s fees, rather than foreclosure of the lien.

Quadri offers no argument concerning the issue of foreclosure of Ponzi-ano’s mechanic’s lien. An appellee’s failure to respond to an issue raised by an appellant is akin to failure to file a brief. Newman v. State, 719 N.E.2d 832, 838 (Ind.Ct.App.1999), trans. denied. This circumstance does not, however, relieve us of our obligation to decide the law as applied to the facts in the record in order to determine whether reversal is required. Id. We do not undertake to develop an argument on Quadri’s behalf, and we may reverse upon Ponziano’s prima facie showing of reversible error. Carter v. Grace Whitney Props., 939 N.E.2d 630, 633 (Ind.Ct.App.2010) (internal quotation and citations omitted). In this context, prima facie error means “at first sight, on first appearance, or on the face [of] it.” Id. at 633-34 (internal quotation and citations omitted). This standard prevents two evils that otherwise would undermine the judicial process. Vukovich v. Coleman, 789 N.E.2d 520, 524, n. 4 (Ind.Ct.App.2003). By requiring the appellant to show some error, we ensure that the court, not the parties, decides the law. Id. By allowing the appellant to prevail upon a showing simply of prima facie error, we avoid the improper burden of having to act as advocate for the absent appellee. Id.

Indiana mechanic’s liens are purely statutory creations and in derogation of the common law. Ind.Code § 32-28-3-1 et seq.; Clark, 861 N.E.2d at 1209. The legislature has determined that, when labor or materials are provided to improve real estate, money damages, the remedy at law, are inadequate. Clark, 861 N.E.2d at 1209. Furthermore, the necessary allegations to support an action to foreclose on a mechanic’s lien include the requirement that the complaint must show that the plaintiff had a contract to furnish labor or materials with the owner of the real estate, and that the work and materials were furnished under the contract. Id. There would be no need to foreclose on the lien if the contract were paid in full; therefore denying foreclosure on the theory that damages were awarded would eviscerate the mechanic’s lien statute. Id.

Here, Quadri does not dispute the validity of Ponziano’s $45,549.43 mechanic’s lien. (App. at 20.) Because the lien exists to secure payment of the debt the trial court found Quadri owed Ponziano, the trial court was required to order that the lien be foreclosed to comply with the mechanic’s lien statute. Clark, 861 N.E.2d at 1209.

Ponziano’s mechanic’s lien attaches to Quadri’s real estate only to the extent that Quadri owes Ponziano on the Contract. Clark's Pork Farms v. Sand Livestock Sys., Inc., 563 N.E.2d 1292, 1299 (Ind.Ct.App.1990). Because we have determined that Quadri owes Ponziano $48,983.43, an amount in excess of Ponzi-ano’s mechanic’s lien, Ponziano may foreclose on the entire amount of the lien.

We reverse as clearly erroneous the trial court’s denial of Ponziano’s request to foreclose on its mechanic’s lien, and remand with instructions that the trial court order sale of the property subject to the $45,549.43 lien. I.C. §§ 32-28-3-6(d), 32-33-9-1 to -8. See also Clark, 861 N.E.2d at 1209. Ponziano must give notice to Quadri at least thirty days before the sale, during which time Quadri may redeem the debt and extinguish the lien. I.C. §§ 32-33-9-2, 32-33-9-3(b). See also Clark, 861 N.E.2d at 1209 n. 3. If there is a lien priority dispute between Ponziano and Wells Fargo, we also instruct the trial court on remand to determine the priority of the liens. Id. at 1209.

Attorney’s Fees

Finally, Ponziano contends that it is entitled to $16,054.48 in attorney’s fees, and that the trial court abused its discretion in awarding it only $8,000.

What constitutes a reasonable attorney’s fee in an action to enforce a mechanic’s lien is a question of fact, the computation of which may depend on a variety of factors, including the time and effort required; the value of the interest involved; the experience, reputation, and ability of the attorneys performing the services; and the results secured at trial. W. Cent. Conservancy Dist v. Burdett, 920 N.E.2d 699, 702 (Ind.Ct.App.2010); Korellis Roofing, Inc. v. Stolman, 645 N.E.2d 29, 33 (Ind.Ct.App.1995). The trial court has discretion in determining what constitutes a reasonable attorney’s fee, and we will reverse only if the trial court’s deci-siones clearly against the logic and effect of the facts and circumstances before the court. Mason v. Mason, 775 N.E.2d 706, 711 (Ind.Ct.App.2002), trans. denied. The trial court may look at the responsibility of the parties in incurring the attorney’s fees, and the trial judge possesses personal expertise he or she may use when determining reasonable attorney’s fees. Id.

The- award of an attorney’s fee, however, like the award of other costs of litigation, is not the same question as the determination of reasonableness of a fee as between the attorney and his client, or the actual expenses to be reimbursed to the attorney by his client. Korellis, 645 N.E.2d at 83. The fee an attorney expects from a client is the subject of a separate agreement between the attorney and client, and is not directly dependent on whether the court awards fees, or on the amount of the fees awarded. Id. The award of attorney’s fees in an action to foreclose on a mechanic’s lien is not an attempt to compensate the attorney for all the legal services performed in connection with the lien; rather, the amount of the award is intended to reflect the amount the lienholder reasonably had to expend to foreclose on the lien. Id. at 83-34. Such awards should be made with caution so that excessive awards of attorney’s fees do not discourage property owners from challenging defective workmanship on the part of lien holders. Id. at 34. The amount awarded as attorney’s fees therefore should be reasonable in relation to the amount of the judgment secured. Id.

Here, the trial court heard testimony regarding Ponziano’s attorney’s fees, and Ponziano’s attorney’s bills were entered into evidence. (App. at 75-85; Tr. at 100-06.) While the evidence substantiates that Ponziano incurred $16,054.48 in attorney’s fees from its dispute with Qua-dri, Ponziano is entitled only to those attorney’s fees stemming from its action to foreclose on its mechanic’s lien. The mechanic’s lien foreclosure issue was but one of multiple issues tried in the trial court, and was relatively minor in complexity and nature compared to the other issues. Furthermore, the attorney’s fees must be reasonable in relation to the amount of the lien secured, and Ponziano may recover at most $45,549.43 on its mechanic’s lien.

Upon examining the evidence, and the circumstances before the trial court, we conclude that the court’s decision was not against the logic and effect of the facts and circumstances before it. Mason, 775 N.E.2d at 711. The court did not abuse its discretion in limiting the award of attorney’s fees to Ponziano to $8,000. Korellis, 645 N.E.2d at 34. Our standard permits us to reverse the trial court only if there is a total lack of supporting evidence, or if the evidence is undisputed and leads solely to a contrary conclusion. Id. Here, the award of attorney’s fees to Ponziano was not inadequate under this standard. We affirm the trial court’s decision to award Ponziano $8,000 in attorney’s fees.

Conclusion

The trial court erred when it awarded Ponziano only $16,000 on the Contract, and when it denied Ponziano’s request to foreclose on its mechanic’s lien. The trial court did not abuse its discretion when it awarded Ponziano $8,000 in attorney’s fees.

Affirmed in part; reversed in part; remanded with instructions.

RILEY, J., and CRONE, J., concur.

      . At the time the Contract was formed, the address of the site was 200 West Walnut Street. At some point between the execution of the Contract and the creation of the blueprints on file with the State of Indiana and the City of Crown Point, the street address of the site was changed to 200 South West Street.

      . Ponziano disputes the trial court's conclusion that the Addendum did not modify the Contract. Because the evidence is without conflict and leads only to the conclusion that the Addendum modified the Contract, the trial court’s conclusion that the Addendum did not modify the Contract is clearly erroneous. See Clark v. Hunter, 861 N.E.2d 1202, 1206 (Ind.Ct.App.2007). However, we do not address this issue separately because the Addendum does not materially change the stated price of the Contract, which is the dispositive issue as discussed infra.

      . In its "Findings of Fact,” the trial court states "[t]hat QUADRI listed the following items that did not comport with good workmanship of PONZIANO[,]” and lists several items Quadri claims are examples of Ponzi-ano's poor workmanship. (App. at 7.) As "[o]ur Supreme Court has explained, ‘A court ... does not find something to be a fact by merely reciting that a witness testified to X, Y, or Z. Rather, the trier of fact must find that what the witness testified to is the fact.'" Moore v. Jasper Cnty. Dep’t of Child Servs., 894 N.E.2d 218, 224 (Ind.Ct.App.2008) (quoting In re T.J.F., 798 N.E.2d 867, 873 (Ind.Ct.App.2003)). Here, the "Finding of Fact” in question is no finding at all, but rather a mere recitation of the evidence.

      . Indiana cases include and refer to the term “fixed-price,” but our research reveals no Indiana case that provides an explicit definition of such a contract. The Supreme Court of the United States has stated that “[a] pure fixed-price contract requires the contractor to furnish the goods or services for a fixed amount of compensation regardless of the costs of performance, thereby placing the risk of incurring unforeseen costs of performance on the contractor^]” Bowsher v. Merck & Co., Inc., 460 U.S. 824, 826 n. 1, 103 S.Ct. 1587, 75 L.Ed.2d 580 (1983) (citation omitted). Black's Law Dictionary defines the term as “[a] contract in which the buyer agrees to pay the seller a definite and predetermined price regardless of increases in the seller’s cost[.]” Black's Law Dictionary 321 (7th ed. 1999). Furthermore, we note that the terms "fixed-price” and “stipulated sum” have been used interchangeably. See Stelko Elec. Inc. v. Taylor Cmty. Sch. Bldg. Corp., 826 N.E.2d 152, 155 (Ind.Ct.App.2005) (providing a similar definition for the term “stipulated sum contract”).

      . Am. Mgmt., Inc. v. MIF Realty, L.P., 666 N.E.2d 424, 432 (Ind.Ct.App.1996) (a set-off amount is subtracted from the total amount of the larger debt).


author: BAILEY, Judge. RILEY, Judge,

text:
    In re The Marriage of Brenda ALEXANDER, Appellant-Petitioner, v. Donald ALEXANDER, Appellee-Respondent.
    No. 32A05-1108-DR-417.
    Court of Appeals of Indiana.
    Dec. 14, 2012.

      Krishna Keener Yeager, Indianapolis, IN, Attorney for Appellant.
    Deborah M. Agard, Law Office of Deborah M. Agard, Indianapolis, IN, Attorney for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Brenda Alexander (“Wife”) appeals the denial of her motion to correct error, which challenged the omission of an award of incapacity maintenance in the decree dissolving her marriage to Donald Alexander (“Husband”). She presents the sole issue of whether she is entitled to an award of incapacity maintenance. We affirm.

Facts and Procedural History

The parties were married on November 2, 1996. Two children were born of the marriage. On October 28, 2009, Wife filed a petition for dissolution of the marriage, which included a request for spousal incapacity or rehabilitative maintenance.

On December 14, 2010 and March 22, 2011, the trial court conducted evidentiary hearings. In support of her request for maintenance, Wife offered testimony that she had been injured in 1987 and had since continuously received disability payments from her former employer. She also offered the testimony of a vocational therapist, who opined that Wife’s ability to support herself was materially impaired.

On June 10, 2011, the trial court entered its “Dissolution Decree and Judgment” in which it dissolved the parties’ marriage, divided the marital assets, made findings on child custody and support, and ordered Husband to pay $25,000 of Wife’s attorney’s fees. (App. 12.) The trial court did not award Wife either incapacity or rehabilitative maintenance.

On July 5, 2011, Wife filed her “Verified Motion for Clarification and/or Motion to Correct Error Pursuant to Trial Rule 59.” (App. 23.) Wife asserted that the trial court had made findings that would have supported an award of incapacity or rehabilitative maintenance, but then “did not rule on [Wife’s] request.” (App. 23.) On July 20, 2011, the trial court issued the following order:

The Court clarifies Dissolution Decree and Judgment Order as follows:
1. The Court considered the findings set forth; The Motion to Clarify as well as other findings, including Wife’s disability payments.
2. The Court declined to award Wife rehabilitative maintenance or Disability payments from Husband.
DECIDED.
(App. 26.) This appeal ensued.

Discussion and Decision

I. Standard of Review

A trial court is vested with broad discretion to determine whether it will grant or deny a motion to correct error. Williamson v. Williamson, 825 N.E.2d 33, 44 (Ind.Ct.App.2005). In the decree challenged by Wife’s motion to correct error, the trial court entered findings of fact sua sponte. In Cannon v. Cannon, 758 N.E.2d 524, 526 (Ind.2001), the Court reviewed findings of fact from which the trial coui’t had concluded that a wife was not entitled to incapacity maintenance and observed that, because Indiana Code section 31-15-7-1 required findings in order to award maintenance, the findings supporting denial would be treated as “special findings” under Indiana Trial Rule 52(A)(3).

The reviewing Court will not set aside such findings unless they are clearly erroneous. Id. Due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses. Id. The relative weight and credibility of the evidence and witnesses at trial are within the purview of the trial court. Id. at 527.

Where, as here, a party had the burden of proof and appeals from a negative judgment, she must show that the evidence points unerringly to a conclusion different from that reached by the trier of fact, or that the judgment is contrary to law. Wilder-Newland v. Kessinger, 967 N.E.2d 558, 560 (Ind.Ct.App.2012), trans. denied. “This means that even if we might have taken a different course of action than that which a trial court took, we are bound to review the order, and findings and conclusions for clear error only.” Id.

II. Analysis

In limiting an award of spousal maintenance to three narrow circumstances — incapacity, caregiver, or rehabilitative — our Legislature has evinced “a clear legislative intent to retain fairly strict limits on the power of courts to order maintenance without the consent of the parties.” Voigt v. Voigt, 670 N.E.2d 1271, 1277 (Ind.1996). “Incapacity maintenance” is addressed by Indiana Code section 31-15-7-2(1), which provides that a dissolution court may find “a spouse to be physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself or herself is materially affected” and may find “that maintenance for the spouse is necessary during the period of incapacity, subject to further order of the court.” Such an award is designed to help provide for a spouse’s sustenance and support; accordingly, the essential inquiry is whether the incapacitated spouse has the ability to support himself or herself. Matzat v. Matzat, 854 N.E.2d 918, 920 (Ind.Ct.App.2006).

A claim for incapacity maintenance is to be “evaluated by giving a strict if not literal interpretation to the [statutory] language[.]” Cannon, 758 N.E.2d at 526. That is, a trial court can award incapacity maintenance only if it finds a spouse to be physically or mentally incapacitated to the extent that his or her ability to support himself or herself was materially affected. Id. “And, although the language of the statute appears to give the trial court some discretion not to award maintenance even where it makes such finding, we believe the strict construction principles applicable in this area narrowly limit that discretion as well.” Id. Although it reiterated that a maintenance award is not mandatory, the Court observed in dicta:

Where a trial court finds that a spouse is physically or mentally incapacitated to the extent that the ability of that spouse to support himself or herself is materially affected, the trial court should normally award incapacity maintenance in the absence of extenuating circumstances that directly relate to the criteria for awarding incapacity maintenance.

Id. at 527.

Wife relies upon the foregoing language to support her claim of entitlement to incapacity maintenance. According to Wife, the trial court made special findings of her incapacity as contemplated by the relevant statute and identified no relevant extenuating circumstances, but inexplicably failed to award her incapacity maintenance.

The trial court found that Wife had suffered past injuries, has present medical conditions, receives disability payments, and is college-educated as an accountant. The trial court also acknowledged the testimony of Wife’s vocational expert that her ability to financially support herself is materially impaired, but did not adopt that opinion. This recitation of the evidence is not equivalent to entering a requisite statutory finding. See Parks v. Delaware Cnty. Dep’t of Child Servs., 862 N.E.2d 1275, 1279 (Ind.Ct.App.2007) (observing that the trier of fact must adopt the testimony of the witness before the ostensible finding may be considered a finding of fact). Even if we were to construe the Cannon dicta as requiring an award of incapacity maintenance absent extenuating circumstances once the requisite statutory finding is made, here no such finding was made.

Indeed, the trial court clarified upon motion to correct error that an award of incapacity maintenance was not inadvertently omitted from the dissolution decree; the trial court intended to deny the maintenance request. The evidence before the trial court did not point solely to a conclusion opposite that reached. Although there was evidence that Wife had physical limitations and received disability payments, there was also evidence that she was college-educated, that she had recently provided child care for pay, and that her limitations would not entirely preclude sedentary work. We will not reverse a judgment merely because we might have, on the same evidence, reached a different conclusion. Wilder-Newland, 967 N.E.2d at 560. The denial of Wife’s request for incapacity maintenance is not clearly erroneous.

Affirmed.

CRONE, J., concurs.

RILEY, J., dissents with separate opinion.

RILEY, Judge,

dissenting.

I respectfully dissent from the majority’s decision to affirm the trial court’s denial of incapacity maintenance. In essence, the majority relies on two express reasons to uphold the trial court’s denial of incapacity maintenance. These are 1) there is “no statutory requirement [under Ind.Code § 31-15-7-1] that special findings be entered where incapacity maintenance is denied;” and 2) and the trial court’s special finding regarding testimony from Brenda’s vocational expert amounted to a “recitation of evidence” that did not rise to the level of a statutory finding, op. pp. 880 n. 8, 881. While sound enough propositions, the majority has inappropriately applied them here to affirm a result unsupported by the trial court’s special findings.

In its Dissolution Decree and Judgment, the trial court sua sponte entered findings of fact from which it ultimately concluded that Brenda was not entitled to incapacity or rehabilitative maintenance. I.C. § 31-15-7-1 requires the trial court to issue findings in order to award maintenance. Cannon v. Cannon, 758 N.E.2d 524, 526 (Ind.2001). These findings constitute “special findings” under Ind. Trial Rule 52(A)(3). See id. A judgment inconsistent with the special findings is clearly erroneous. See In re Marriage of Jackson, 682 N.E.2d 549, 551 (Ind.Ct.App.1997).

Brenda had the burden of proof on her claim for maintenance. See Matzat v. Matzat, 854 N.E.2d 918, 921 (Ind.Ct.App.2006). As the trial court decided against her, Brenda appeals from a negative judgment. See Wilder-Newland v. Kessinger, 967 N.E.2d 558, 560 (Ind.Ct.App.2012), trans. denied. To prevail, she must show that the evidence points unerringly to a conclusion different from that reached by the trier of fact, or that the judgment is contrary to law. Id. A judgment is contrary to law if it is contrary to the trial court’s special findings. DeHaan v. DeHaan, 572 N.E.2d 1315, 1320 (Ind.Ct.App.1991), reh’g denied, trans. denied. The trial court’s judgment here is unsupported by its special findings and is thus contrary to law.

The reluctance of the majority to recognize that the trial court’s judgment is inconsistent with its special findings perhaps arises from the trial court’s statutory discretion to award maintenance. An award of maintenance is wholly within the trial court’s discretion. Clokey v. Bosley Clokey, 956 N.E.2d 714, 718 (Ind.Ct.App.2011), aff'd on reh’g, 957 N.E.2d 1288 (Ind.Ct.App.2011). Even if a trial court finds that a spouse’s incapacity materially affects such spouse’s self-supportive ability, a maintenance award is not mandatory. Bizik v. Bizik, 753 N.E.2d 762, 769 (Ind.Ct.App.2001), trans. denied. However, the trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances of the case. Clokey, 956 N.E.2d at 718.

In determining whether a trial court has abused its discretion in a spousal maintenance determination, this court will presume that the trial court properly considered the applicable statutory factors in reaching its decision. Bizik, 753 N.E.2d at 769. Those factors are 1) the spouse’s physical or mental incapacity; 2) which incapacity materially impairs the spouse’s self-supporting ability. See I.C. § 31-15-7-2(1). The Decree contained the following relevant special findings: 1) Brenda was injured in 1988; 2) that injury was exacerbated by two subsequent automobile accidents; 3) Brenda’s pain includes herniated discs in her back and neck, degenerative disc disease, as well as carpal tunnel syndrome; 4) “[a]s a result of her physical issues, [Brenda] experiences severe pain and cannot sit, stand, walk or look down for long periods of time;” 5) her vocational expert testified that he believed Brenda’s ability to “financially support her[self] is materially impaired;” 6) Brenda’s physical limitations prevented her from working after receiving her accounting degree in 1997; 7) Brenda had received disability payments from General Motors since 1988 “and currently receives $600.00 per month;” and 8) Brenda “has physical limitations and has been out of the workforce since 1988.” (Appellant’s App. pp. 15-16). These special findings establish that Brenda has a physical incapacity and that such incapacity materially impairs her ability to support herself. The special findings therefore authorize an award of incapacity maintenance under I.C. § 31-15-7-2(1).

The majority attempts to downplay the significance of the special findings by characterizing the trial court’s “acknowledgement” of vocational expert testimony as mere recitation of evidence rather than a finding. However, even without this finding, the remaining special findings authorize an award of incapacity maintenance. The majority acknowledges this infirmity by citing the familiar refrain that it might have reached a different conclusion on the same evidence. This misses the point. “The essential inquiry is whether the incapacitated spouse has the ability to support himself or herself.” McCormick v. McCormick, 780 N.E.2d 1220, 1224 (Ind.Ct.App.2003). Although the trial court awarded Brenda a majority of the marital estate and later cited Brenda’s receipt of disability payments in support of its denial of incapacity maintenance, it made no explicit finding on how these relate to her self-supportive ability.

In light of these special findings and without a determination of the effect of such disability payments on Brenda’s ability to support herself, I cannot conclude that the trial court properly exercised its discretion to deny Brenda an award of incapacity maintenance when its special findings would otherwise authorize an award. See Cannon, 758 N.E.2d at 527. Thus, the trial court’s denial of incapacity maintenance under these circumstances was contrary to law and an abuse of discretion. I would therefore remand to the trial court with instructions to determine the propriety of Brenda’s request for incapacity maintenance.

      . Although Wife requested an award of either incapacity or rehabilitative maintenance, she confines her argument on appeal to the propriety of an award of incapacity maintenance.

      . Wife has herniated discs, degenerative disc disease, and carpal tunnel syndrome.

      . Neither party made a written request for findings and conclusions pursuant to Indiana Trial Rule 52(A). Findings are required by statute in order to support an award of incapacity maintenance, but there is no statutory requirement that special findings be entered where incapacity maintenance is denied.