text:
    Robert R. SETREE, II, and Beverly L. Setree, Appellants-Defendants, v. RIVER CITY BANK, Appellee-Plaintiff.
    No. 10A01-1311-MF-485.
    Court of Appeals of Indiana.
    May 22, 2014.
    Rehearing Denied Aug. 8, 2014.

      Eric C. Bohnet, Indianapolis, IN, Nina-mary Buba Maginnis, Louisville, KY, Attorneys for Appellants.
    Jason A. Lopp, Wyatt Tarrant & Combs, LLP, New Albany, IN, Attorney for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellants-Defendants, Robert R. Se-tree, II and Beverly L. Setree (the Se-trees), appeal the trial court’s summary judgment in favor of Appellee-Plaintiff, River City Bank (River City), granting River City the right to foreclose on the Setrees’ real estate.

We affirm.

ISSUES

The Setrees raise three issues on appeal, one of which we find dispositive and which we restate as: Whether principles of full faith and credit required the trial court to consider the judgments of a Kentucky court res judicata to the instant cause.

FACTS AND PROCEDURAL HISTORY

At all times relevant to this action, the Setrees were the owners of several pieces of real estate located in Kentucky and Indiana. On September 2, 2005, the Se-trees executed a promissory note in favor of River City for the principal sum of $45,667.00. On October 4, 2006, the Se-trees executed a second promissory note in favor of River City for the principal amount of $15,484.19. Both notes were secured by mortgages on real estate owned by the Setrees at 815 Holly Drive in Jeffersonville, Indiana and at 2095 Virginia Avenue and 5116 Roederer Drive in Louisville, Kentucky.

On November 2, 2007, the Setrees executed a third promissory note (2007 Note) by which they promised to pay River City the principal sum of $91,380.50. To secure payment on the 2007 Note, the Setrees gave River City a security interest in property located at 2061 Cardinal Lane, in Jeffersonville, Indiana (the Cardinal Lane Property), as well as the property located at 5116 Roederer Drive, in Louisville, Kentucky. Contemporaneously with the execution of the 2007 Note, the Setrees executed a mortgage in favor of River City on the Cardinal Lane Property. Pursuant to the provisions of the 2007 Note, the Se-trees were required to pay all taxes related to the collateral securing it when due.

In 2009 and 2010, the Setrees omitted to pay Indiana real estate taxes on the Cardinal Lane Property, bringing the Setrees in default of the terms of their 2007 Note. As a result of their failure to pay the real estate taxes, the Cardinal Lane Property was sold at a tax sale in the fall of 2010. On September 29, 2011, River City paid $9,455.73 to redeem the Cardinal Lane Property from the tax buyer and an additional $3,116.55 in taxes to bring the delinquent real estate taxes current.

The mortgage securing the 2007 Note included a right to cure provision, which is triggered if a breach of one of the conditions of the Note is curable. Specifically, the clause states:

Right to Cure. If such a failure is curable and if [River City] has not given a notice of a breach of the same provision of this Mortgage within the preceding twelve (12) months, it may be cured (and no Event of Default will have occurred) if [the Setrees], after [River City] sends written notice demanding cure of such failure: (a) cures the failure within twenty (20) days; or (b) if the cure requires more than twenty (20) days, immediately initiates steps sufficient to cure the failure and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical.

(Appellee’s App. p. 28). On October 13, 2011, the Setrees, by certified mail, notified River City that

We know these taxes are our responsibility. We notified [River City] more than a year ago to let you know we didn’t have the means to pay them because they had increased so much. We asked if you could pay them and do some refinancing so our payments would be lower and we would be able to handle them.

(Appellee’s App. p. 34).

By virtue of cross-default provisions in the notes, the Setrees’ nonpayment of real estate taxes on the Cardinal Lane Property also triggered River City’s right to accelerate all debts due and owing under the other two notes and to foreclose on all of the mortgages it held on the Setrees’ various properties. River City exercised its right by initiating four different foreclosure actions under the mortgages related to the three notes: the current action, a companion case — at the time of filing the instant appeal — pending in Clark Circuit Court No. 2, and two actions in Jefferson Circuit Court, Kentucky.

On September 25, 2012, the Jefferson Circuit Court entered a final judgment and order of sale in favor of River City with respect to the Setrees’ property on Roe-derer Drive in Louisville, Kentucky. On January 15, 2013, the Jefferson Circuit Court entered a similar order with respect to the property on Virginia Avenue. In its order of January 15, 2013, the Jefferson Circuit Court concluded, in pertinent part, as follows:

The record is undisputed that [the Setrees] failed to pay property tax on the Indiana property. As was noted by Commissioner Harrison in the Commissioner’s Report, [the Setrees] have repeatedly alleged that failure to pay Indiana taxes in no way constituted a default under the terms of any of their mortgages, and that [the Setrees] argue that the default, if one occurred, on the payment of an Indiana debt could not constitute a default on regard [to] the Kentucky collateral. Commissioner Harrison also noted that the [Setrees] argue that they were never given notice of any default and were never given an opportunity to cure the same. [The Se-trees] continue to make such arguments in their exceptions and objections to the Commissioner’s Report. As was stated by Commissioner Harrison in the Commissioner’s Report:
Failure to pay the taxes on the Indiana property constituted a default on the note secured by such property[.] That default authorized foreclosure on the properties securing payment of that note. Both of the notes secured by the subject property herein contained a provision stating that the notes will be in default if [the Setrees] fail “to make any payment when due under this note or any note payable to [River City].” Default under the terms of one note thereby constitutes a default on all notes payable to that lender, including those note [sic] set out herein.
Although [the Setrees] deny any default, they also argue that if a default occurred, it occurred in Indiana in regard to an Indiana property and only that Indiana property can be foreclosed. [The Setrees] [have] failed to present any statute or case law supporting this argument. [The Setrees’] position simply ignores the cross-default provisions in the various notes. As aforesaid [River City] was entitled to accelerate all debts owed to it by the [Setrees] once any of these notes were in default. In the absence of law or some agreement between the parties, [River City] is not obligated to look to certain collateral for satisfaction of its claim. Upon the acceleration of the debt, [River City] was entitled to proceed against any collateral securing that debt, including collateral located in Kentucky.
The Court adopts Commissioner Harrison’s analysis and finding that a failure to pay the taxes on the Indiana property constituted a default on the note secured by such property, and that the default under the terms of one note thereby constituted a default on all notes payable to that lender, including those note set out herein.
[The Setrees’] contention that they were not provided notice or an opportunity to cure is refuted by the record. As was confirmed by [River City’s] response to the [Setrees’] Exceptions, the Indiana mortgage instrument permits [the Setrees] the opportunity to cure a default for a period of 20 days after they were notified of a defaulting event. By [the Setrees’] own admission in a letter, dated October 13, 2011, in the record, they were given in excess of one year to cure the defaults; however, they were either unwilling or unable to do so. Accordingly, the record reflects that [the Setrees] were provided notice and an opportunity to cure the default, yet failed to do so.

(Appellee’s App. pp. 51-52). The Setrees are appealing both judgments rendered by the Kentucky courts.

On January 12, 2012, River City initiated the current action, seeking to foreclose on the Cardinal Lane Property due to the Setrees’ default on the 2007 Note and requesting that its mortgage lien be foreclosed and the Property sold. On November 8, 2012, the Setrees moved for summary judgment. On February 22, 2013, River City filed its response, as well as its cross-motion for summary judgment and decree of foreclosure.

On October 29, 2013, following a hearing on the parties’ motions, the trial court entered summary judgment in favor of River City and denied the Setrees’ motion, concluding, in pertinent part, that, based on the principles of full faith and credit, res judicata prevented the relitigation of the Setrees’ default on the terms of the 2007 Note and mortgage. Nevertheless, the trial court also held that “[rjegardless of the findings of the Kentucky [c]ourts and the exclusionary [e]ffect of the Doctrine of Res Judicata, sufficient undisputed evidence exists to grant summary judgment as a matter of law in favor of [River City] in this Indiana court.” (Appellant’s App. p. 15).

The Setrees now appeal. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). A fact is material if its resolution would affect the outcome of the case, and an issue is genuine if a trier of fact is required to resolve the parties’ differing accounts of the truth ..., or if the undisputed facts support conflicting reasonable inferences. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009).

In reviewing a trial court’s ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind.Ct.App.2008), trans. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in the light most favorable to the non-moving party. Id. at 608. The party appealing the grant of summary judgment has the burden of persuading this court that the trial court’s ruling was improper. Id. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiffs cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiffs claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.

We observe that, in the present case, the trial court entered findings of fact and conclusions of law in support of its judgment. Special findings are not required in summary judgment proceedings and are not binding on appeal. Id. However, such findings offer this court valuable insight into the trial court’s rationale for its decision and facilitate appellate review. Id.

II. Full Faith and Credit

The Setrees now contend that the trial court erred in concluding that the dispute was barred by res judicata arising from the full faith and credit our courts are mandated to award to the Kentucky judgments.

A. Full Faith and Credit

The Full Faith and Credit Clause of the United States Constitution requires that “[f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” U.S. Const. Art. IV, § 1. Full faith and credit provides that “the judgment of a state court should have the same credit, validity, and effect in every other court of the United States, which it had in the state where it was pronounced.” Gardner v. Pierce, 838 N.E.2d 546, 550 (Ind.Ct.App.2005). Indiana has codified this notion at Indiana Code section 34-39-4-3, which establishes that records and judicial proceedings from courts in other states “shall have full faith and credit given to them in any court in Indiana as by law or usage they have in the courts in which they originated.” Full faith and credit commands deference to the judgments of foreign courts, and “the judgment of a sister state, regular and complete upon its face is prima facie valid.” Gardner, 838 N.E.2d at 550.

A foreign judgment is, however, open to collateral attack for want of jurisdiction. Id. “Before an Indiana court is bound by a foreign judgment, it may inquire into the jurisdictional basis for that judgment; if the first court did not have jurisdiction over the subject matter or relevant parties, full faith and credit need not be given.” Id. Thus, we do not give full faith and credit to orders entered by a court without subject matter jurisdiction or personal jurisdiction.

Synopsizing the holding in Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963), as “[i]f the parties litigate whether land is located in one state or another state, that issue will not be re-litigated in another court,” the Setrees distinguish Durfee and find it inapplicable to the cause at hand since the issue before us is not the location of the real estate, but rather involves litigation “in regard to unique real estate, unique contracts, and unique conduct.” (Appellants’ Br. p. 16). In Durfee, our Supreme Court held that a state court judgment resolving a property dispute between two private parties could not be attacked collaterally by one of the parties who had fully litigated the matter. Id. at 108, 84 S.Ct. 242. The case involved a fully litigated factual finding by a Nebraska court that it had subject matter jurisdiction because the disputed land was in Nebraska; this finding precluded Missouri courts from considering a collateral attack on the Nebraska court’s jurisdiction on the factual basis that the disputed river-bottom land was in Missouri. Id. In reaching this holding, Durfee relied on the well-established principle that

[a] judgment is entitled to full faith and credit — even as to questions of jurisdiction — when the second court’s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.

Id. at 111, 84 S.Ct. 242. With respect to cases involving real property, the Supreme Court

unequivocally stated:

It is argued that an exception to this rule of jurisdictional finality should be made with respect to cases involving real property because of this Court’s emphatic expressions of the doctrine that courts of one State are completely without jurisdiction directly to affect title to land in other States. This argument is wide of the mark.

Id. at 115, 84 S.Ct. 242. While Durfee’s facts are different from those presented here, the general principle recognized by the Supreme Court — “once [a] matter has been fully litigated and judicially determined” in one state, it cannot be “retried in another State in litigation between the same parties” — nonetheless applies. See id.

Turning to Indiana case law, the Setrees rely on In re Estate of Latek, 960 N.E.2d 193 (Ind.Ct.App.2012), and Evansville Ice & Cold-Storage Co. v. Winsor, 148 Ind. 682, 48 N.E. 592 (1897), in an attempt to carve out an exception to Durfee’s well-established precedent. Specifically, they contend that “judgments in a sister jurisdiction have no influence in a foreclosure action on separate property in Indiana as real property is unique.” (Appellants’ App. p. 13). Both Latek and Winsor addressed the preclusive effect of decisions of other states related to the disposition of property under wills. In Winsor, the daughter of a testatrix, who owned property in Indiana but whose will had been probated in New York, sought to challenge the will as it related to the Indiana real estate. Id. at 593. Our supreme court analyzed whether a three-year statute of limitations for challenges to foreign wills which were filed, recorded, or probated in Indiana applied to the daughter’s case. Id. Our court noted that while “a probate of the will in the state where the testation was domiciled at the time of his death is [ ] entitled to full faith and credit,” the title “to and the disposition of real property, whether by deed, a last will, or otherwise, must be governed exclusively by the law of the county where it is situated.” Id.

Likewise in Latek, the question presented to this court was what effect an order from an Illinois court denying probate of a testator’s will had on the disposition of real property in Indiana. Latek, 960 N.E.2d at 198. We concluded that the Illinois order had no effect on the subsequent admission and probate of the will in Indiana as it concerned the disposition of real property in Indiana. Id. at 200. While Latek’s pronouncement that “[p]rinciples of res ju-dicata and full faith and credit have no application in matters involving probate and title to realty” is an unfortunate generalization, contextually, it is clear that the Latek court intended that “the probate of a will in another state has no effect on title of real estate in Indiana unless the will is duly admitted to probate in this state or filed and recorded as a foreign will in compliance with our laws.” Id. at 200, 201 (citing Estate of Hofgesang v. Hansford, 714 N.E.2d 1213, 1217 (Ind.Ct.App.1999)). In the case sub judice, no will contest is alleged and therefore Latek and Winsor are inapposite.

Because we conclude that the Kentucky judgments had acquired subject matter jurisdiction and personal jurisdiction over the parties before it, we must afford full faith and credit to these opinions. See Gardner, 838 N.E.2d at 550.

B. Res Judicata

Having resolved that we must grant full faith and credit to the Kentucky orders, we must now ascertain the res judicata effect of these determinations before this court. The effect Indiana must accord the Kentucky judgments depends on the treatment that judgment would receive in Kentucky. Id. at 551.

Pursuant to Kentucky precedents, res judicata prevents the relitigation of the same issues in a subsequent appeal. Miller v. Administrative Office of Courts, 361 S.W.3d 867, 871 (Ky.2011), reh’g denied. Three elements must be met for res judicata, or claim preclusion, to apply: (1) there must be an identity of the parties between the two actions; (2) there must be an identity of the two causes of action; and (3) the prior action must have been decided on the merits. Id. at 872. A close cousin to the doctrine of res judicata is the theory of collateral estop-pel, or issue preclusion. Id. In order for issue preclusion to operate as a bar to further litigation, certain elements must be established: (1) at least one party to be bound in the second case must have been a party in the first case; (2) the issue in the second case must be the same as the issue in the first case; (3) the issue must have been actually litigated; (4) the issue was actually decided in that action; and (5) the decision on the issue in the prior action must have been necessary to the court’s judgment and adverse to the party to be bound. Id. Res judicata, being the older term, is thought of as an umbrella doctrine that contains within it both claim and issue preclusion. Id. at 871. A pending appeal does not affect the finality of a judgment for preclusion purposes. See Stemler v. City of Florence, 126 F.3d 856, 871 (6th Cir.1997); Roberts v. Wilcox, 805 S.W.2d 152, 153 (Ky.Ct.App.1991).

Here, res judicata is more properly defined as issue preclusion. The same issues — the Setrees’ failure to pay Indiana property tax pursuant to their 2007 Note and their right to cure — between the same parties — the Setrees and River City — governed the Kentucky cases and this appeal. River City’s right to foreclose on all three notes was triggered as a result of the Setrees’ failure to pay their Indiana taxes on the Cardinal Lane Property. Because of cross-default provisions in the three notes executed between the Setrees and River City, the Setrees’ default under the 2007 Note constituted a default under the previously executed two notes as well. Therefore, the Kentucky courts’ decisions to grant River City the right to foreclose on the Setrees’ Kentucky properties necessarily included a determination of default under the 2007 Note — the issue before the trial court. Moreover, the order issued by the Jefferson Circuit Court on January 15, 2013, analyzed the Setrees’ right to cure under the note, an identical claim made by the Setrees in the current case, as being without merit. Accordingly, although the Kentucky cases concerned different mortgages and different property than the instant cause, they litigated the same issues between the same parties: the Setrees’ failure to pay the Indiana taxes on the Cardinal Lane Property and the Setrees’ right to cure its failure under the 2007 Note. Therefore, granting the Kentucky judgments full faith and credit, we are precluded from addressing the Setrees’ claim.

CONCLUSION

Based on the foregoing, we conclude that principles of full faith and credit required the trial court to consider the judgments of a Kentucky court res judicata to the instant cause.

Affirmed.

ROBB, J. and BRADFORD, J., concur.


source: Caselaw Access Project

author: BAKER, Judge.

license: Public Domain

text:
    A.H., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
    No. 49A05-1309-JV-450.
    Court of Appeals of Indiana.
    May 28, 2014.
    Rehearing Denied Aug. 8, 2014.

      Deborah Markisohn, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

Appellant-respondent A.H. asks this Court to vacate the juvenile court’s restitution order, which required her to provide restitution to the probation department for the electronic monitoring bracelet she cut off and left at a park. More particularly, A.H. argues that the trial court erred when it ordered restitution that was not part of the admission agreement and failed to inquire into her ability to pay. However, the juvenile court ordered A.H. to perform 100 hours of community service in lieu of monetary payment. Further, A.H. contends that the State failed to present sufficient evidence of the actual amount of loss incurred to support the restitution order.

We find that the juvenile court did not err in ordering restitution as the admission agreement left disposition open to the juvenile court. Moreover, we conclude that it did not fail to inquire into A.H.’s ability to pay when her financial information was before the juvenile court, and it did not require monetary restitution. Further, we find that there was sufficient evidence to demonstrate the actual loss to the probation department for the electronic monitoring bracelet. Therefore, we affirm the judgment of the juvenile court.

FACTS

On February 19, 2013, the State submitted a delinquency petition that alleged A.H. had committed what would have been class B felony burglary and class D felony theft had she been an adult. On February 22, 2013, the juvenile court issued an order to file the delinquency petition and held the initial hearing. A.H. was released to her mother on electronic monitoring. A.H. signed an electronic monitoring agreement that stated A.H. was responsible for any damage to the monitoring device, which had a replacement cost of $575.

On April 4, 2013, the parties tendered an admission agreement to the court, which stated that A.H. would admit to the theft count in exchange for the dismissal of the burglary count. On April 18, 2013, the juvenile court held a dispositional hearing and imposed a suspended commitment to the Indiana Department of Correction.

On June 5, 2013, the juvenile probation department filed a petition to modify the dispositional decree. The petition alleged that A.H. had violated her probation by running away from home. On June 17, 2013, a pre-trial hearing was held and A.H. submitted an admission agreement admitting to the allegations in the modification petition. A.H., with her mother’s permission, had gone to Anderson to visit with her older sister but instead stayed elsewhere for a week. The juvenile court ordered A.H.’s suspended commitment continued and placed A.H. on electronic monitoring. A.H. signed an agreement that stated:

You are responsible for your electronic monitoring equipment and must pay for any damage that is caused by tampering with or trying to remove the equipment. If the equipment is not returned in good working order, you will be required to pay for the cost of replacing it. If the equipment is lost, you will also be required to pay the replacement costs. Depending on the type of equipment you are on, the replacement costs are: a. HG 206 unit: $1,620, Transmitter: $575

Appellant’s App. p. 124.

On July 8, 2013, the juvenile probation department filed another petition to modify the dispositional decree, alleging that A.H. had run away from home again in violation of her probation. A pre-trial hearing was held on August 8, 2013, and A.H. again submitted an admission agreement. She admitted to running away from home and to cutting off the electronic monitoring device and leaving it in a park.

On August 15, 2013, the juvenile court held a dispositional hearing, at which it continued A.H.’s suspended commitment and ordered her to pay $575 in restitution for the electronic monitoring device by way of performing community service. The juvenile court brought up the issue of restitution, noting that probation had recommended restitution in its report. The amount of $575 was decided upon when a probation officer told the juvenile court that it was the amount specified in the electronic monitoring agreement signed by A.H. A.H. objected to the restitution, arguing that it was not in the admission agreement. The court noted the objection, but ordered A.H. to pay the $575 in restitution through community service.

A.H. now appeals.

DISCUSSION AND DECISION

I. Restitution

A. Admission Agreement and Restitution

A.H. argues that the juvenile court improperly imposed restitution when it was not specifically mentioned in her admission agreement. She contends that the juvenile court could not impose additional penalties not included in the agreement.

An order of restitution is a matter within the juvenile court’s discretion, and this Court will reverse only upon a showing of an abuse of that discretion. J.H. v. State, 950 N.E.2d 731, 734 (Ind.Ct.App.2011). An abuse of discretion occurs when the juvenile court’s determination is clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable, and actual deductions to be drawn therefrom. Id.

A.H. is correct that, when a juvenile enters into a plea agreement in a juvenile proceeding, the juvenile court is bound by the terms of the agreement. In re J.A.W., 504 N.E.2d 334 (Ind.Ct.App.1987). However, as the State notes in its brief, when, in a criminal case, the plea agreement does not include restitution but the sentence is left open, the trial court is free to award restitution as part of the sentence. Morris v. State, 2 N.E.3d 7 (Ind.Ct.App.2013). We agree with the State’s argument that the same rule should apply in juvenile cases.

Here, there was an admission agreement. Appellant’s App. p. 113. That agreement left the disposition of the case open to the juvenile court. Id. A.H. agreed that the disposition would be determined by open argument. Therefore, even though no restitution was mentioned in the admissions agreement, the juvenile court could properly order restitution because the disposition was left open; it did not abuse its discretion in doing so.

B. Ability to Pay

A.H. also contends that the juvenile court abused its discretion when it failed to make an inquiry into her ability to pay restitution.

When a juvenile court orders restitution as part of a juvenile’s probation, it must inquire into the juvenile’s ability to pay the restitution. P.J. v. State, 955 N.E.2d 234 (Ind.App.2011). This is because equal protection and fundamental fairness concerns require that a juvenile court must inquire into a juvenile’s ability to pay before the court can order restitution as a condition of probation. M.L. v. State, 838 N.E.2d 525, 529 (Ind.Ct.App.2005).

In J.H. v. State, a panel of the Court vacated a restitution agreement when the juvenile court failed to make an inquiry into J.H.’s ability to pay. 950 N.E.2d at 735. The juvenile court ordered J.H. to pay restitution for a broken door in the amount of $1,117.65. Id. at 734. While the juvenile court inquired about J.H.’s mother’s ability to pay, it did not make an adequate inquiry into J.H.’s ability to pay. Id. at 734. The J.H. court held that it was the juvenile’s ability to pay that was relevant. Id.

Here, the juvenile court did not make a direct inquiry into A.H.’s ability to pay. Tr. p. 65. However, unlike J.H., A.H. was not required to make monetary restitution. Id. at 66. During the dispositional hearing, A.H.’s mother stated “[s]he’s the one that cut this off and threw it, I think she needs to do some community service to pay for it.” Id. at 65. The trial court then determined that it would “follow mom’s lead,” and ordered A.H. to pay restitution by means of community service. Id. at 66. Therefore, A.H. is not required to pay any monetary restitution, and her ability to pay is not relevant to restitution imposed as community service.

III. Lack of Evidence to Show Amount of Loss

A.H. argues that the juvenile court failed to hold the State to its burden to establish the actual amount of loss that occurred when A.H. cut off her electronic monitoring device.

A juvenile court may order a child to pay restitution if the victim provides reasonable evidence of the victim’s loss, and the child may challenge the amount of loss at the dispositional hearing. J.H. v. State, 950 N.E.2d 731, 734 (Ind.Ct.App.2011). The adult restitution statute, Indiana Code section 35-50-5-3, requires that a restitution order for property damages be based on actual loss incurred. The adult statute is instructive when the juvenile statute is silent. J.H., 950 N.E.2d at 734. Evidence supporting a restitution order is sufficient if it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture. Id.

In J.H., cited above, a restitution order was vacated when the juvenile court was not presented with reasonable evidence to support the juvenile court’s determination of the value of loss to the victim. Id. In that case, the victim gave the prosecutor two different sheets of paper purporting to give an estimate of loss for the broken door. Id. The estimates differed by $117, and neither was submitted to the juvenile court or to defense counsel. Under those circumstances, the J.H. Court determined that “the ‘estimates’ were mere speculation or conjecture and that the juvenile court’s order is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Id.

Here, the evidence shows that A.H. signed an agreement that stated the electronic monitoring device was worth $575. Appellant’s App. p. 124. A.H. stipulated to that amount when she signed the electronic monitoring agreement. Id. This agreement was before the trial court, and the amount was repeated by the probation officer. Tr. p. 65. Thus, unlike the circumstances in J.H., the trier of fact was not required to engage in speculation or conjecture. Therefore, we find that there was sufficient evidence to establish the amount of loss that occurred when A.H. cut off her electronic monitoring device.

The judgment of the juvenile court is affirmed.

BARNES, J., and CRONE, J., concur.


author: BARNES, Judge.

text:
    GUARDIANSHIP OF Phyllis D. HAYES, An Adult, Joann Hayes and Dianna Hale, Appellants, v. Kenneth J. HAYES, Appellee.
    No. 52A02-1308-GU-751.
    Court of Appeals of Indiana.
    May 29, 2014.

      Jeffry G. Price, Peru, IN, Attorney for Appellant.
    Thomas M. Beeman, Kyle B. Dehaven, Anderson, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Jo Ann Hayes and Dianna Hale appeal the trial court’s denial of their motion for summary judgment and the trial court’s order concluding that the execution of an option contract by their mother, Phyllis Hayes, to their brother, Kenneth Hayes, was enforceable. We affirm.

Issues

Jo Ann and Dianna raise two issues, which we restate as:

I. whether the trial court properly denied their motion for summary judgment because the sale was subject to trial court approval; and

II. whether, after a hearing, the trial court properly ordered the execution of the option contract because it was not the result of undue influence.

Facts

Phyllis and her husband owned a 200-acre farm in Miami County. Prior to passing away in 1993, Phyllis’s husband farmed the land with the couple’s son, Kenneth. Jo Ann and Dianna are Kenneth’s sisters. Kenneth and his family lived in one house on the farm, and Phyllis and her husband lived in another house on the farm. In the mid-1980s, Kenneth loaned his parents $179,539.80 to support the farm.

In 1997, Phyllis gave Kenneth the authority to act as her power of attorney. On March 3, 2005, Phyllis executed a promissory note, mortgage, will, and an option contract as part of her estate plan created by attorney Joseph Certain. Certain created the documents pursuant to Phyllis’s request and videotaped Phyllis on March 3, 2005, explaining why she set up her estate plan the way she did.

The promissory note and mortgage were in favor of Kenneth in the amount of $180,000. The option contract allowed Kenneth to purchase the 200-acre farm at $2,500 per acre, for a total purchase price of $500,000, which was a reasonable fair market price at that time. Pursuant to the terms of the option contract, Kenneth could exercise the option to purchase through September 1, 2014, and, upon expiration of the initial option period, it could be renewed for another ten years. The option contract also specified that Kenneth was owed $180,000 and that, should he exercise the option, any unpaid balance of the promissory note should be credited toward the $500,000 purchase price.

In January 2010, Kenneth told Jo Ann and Dianna that he intended to purchase the farm, and he later executed a letter of his intent to exercise the option. In March 2010, Jo Ann and Dianna petitioned for the appointment of a guardian over Phyllis’s person and estate. Kenneth was the appointed as the guardian over Phyllis’s person and a bank was appointed as the guardian over the estate. Litigation ensued regarding the sale of the farm to Kenneth pursuant to the terms of the option contract. Jo Ann and Dianna’s expert valued the farm at $8,000 to $10,000 per acre.

Eventually, Kenneth moved for summary judgment arguing that the option contract was valid and binding. Jo Ann and Dianna also moved for summary judgment arguing that there were no genuine issues of material fact and that the sale was void as a matter of law. The trial court denied both motions. The trial court rejected Jo Ann and Dianna’s request to certify the denial of their motion for summary judgment for interlocutory appeal, and a fact-finding hearing was held.

Jo Ann and Dianna requested special findings and conclusions, and the parties submitted proposed findings to the trial court. The trial court largely adopted Kenneth’s proposed findings and conclusions and ordered the sale of the farm pursuant to the option contract. In its order, the trial found in part:

7. That there was no evidence that [Kenneth] ever acted under the authority of the Power of Attorney prior to 2006;
10. That [Phyllis] had been consulting her attorney Joseph Certain in the months leading up to March 8, 2005;
⅜ ⅜ ⅜ ⅝ ⅜ ⅜
17. That [Kenneth] was not present when the contract was discussed, created, or executed by [Phyllis];
18. That [Phyllis] created the option contract with the assistance and advice of her attorney;
19. That the option contract was consistent with her overall estate plan as well as the wishes of her late husband as testified to by her attorney Mr. Certain;
20 That, according to Mr. Certain, precautions were taken to insure, in his mind that [Phyllis] knew the gravity of the option contract.
21. That, according to Mr. Certain, and in his legal opinion, [Phyllis] was legally competent to execute the option contract and was not under any undue influence;
22. That Shirley Ball was employed by Joseph Certain and his firm as a legal assistant;
* ⅜ ⅝ ⅝ ⅜ ⅜
27. That Mrs. Ball had the opportunity to engage [Phyllis] in conversation on March 3, 2005;
28. That Mrs. Ball’s opinion and observations were that [Phyllis] was appropriate in conversation and immaculately dressed for the occasion;
29. That Mrs. Ball’s observations were that [Phyllis] was very sure of herself and her reasons for the content of the option contract and the other documents executed on March 8, 2005;
30. That [Phyllis] had a personal physician by the name of William Rauh;
⅝ ⅜ ⅜ ⅜ :¡: s¡c
34. That Dr. Rauh testified that there [sic] [Phyllis] did not suffer from any physical or mental condition that would impede her ability to conduct her affairs on or before March 3, 2005;
35. That based on the testimony of Mr. Certain, Mrs. Ball and Dr. Rauh, [Phyllis] was mentally competent to enter into the option contract created on March 3, 2005;
36. That it was not until October 20, 2011 that Dr. Rauh determined [Phyllis] to be incompetent;
37. That [sic] amount of the purchase ($2,500.00/acre) was a reasonable fair market price on the date the contract was created as evidence by expert Larry Jordan;
38. That Larry Jordan is an agriculture real estate expert familiar with the past and current value of farmland;
39. That Larry Jordan testified that the price per acre contained in the contract was fair at the time the contract was created;
40. That Mr. Jordan testified that agricultural real estate has significantly increased in value since 2005;
41. That Mr. Jordan testified no one could have anticipated the substantial increase in agricultural real estate including experts like himself;
42. That, if experts could not anticipate the substantial increase in the value of agricultural real estate, [Phyllis] and [Kenneth] could not have been able to foresee such increases in value;
43. That Mr. Jordan testified that the increase in the value of agricultural real estate can, in part, be credited to the role that ethanol has played in the U.S. economy[.]

App. pp. 32-35. The trial court entered extensive conclusions, which it summarized as:

In conclusion, the Court finds that the option is valid and binding. [Phyllis] was competent at the time of the execution of the contract. The elements of a valid contract are present and were present at the time of the execution. The contract contained a legal offer and acceptance and is supported by sufficient consideration. Furthermore, the parties exhibited a manifestation of mutual consent.
The Court further finds that [Kenneth] did not exert undue influence over [Phyllis] and any presumption has been overcome by the evidence. While the Court does not believe that the sale of [Phyllis’s] property at the price contained within the option agreement is necessarily in her best interest at this time due to the substantial increase in property value, the court cannot legally find that the Option Agreement executed March 3, 2005 is not a valid and binding contract.
The most telling evidence being that of Mr. Jordan, the land valuation expert, who testified that the price of $2500.00 per acre was market value on or about March 3, 2005. This along with the video of [Phyllis’s] will being executed on March 3, 2005 wherein she appears competent, details her estate plan, the reasons therefore and specifically states that [Kenneth] has exerted no undue influence on her regarding the transactions. The Court must enforce the legal and binding agreement of the parties and hereby orders that the Option Contract be fully and completely executed with a purchase price of $2,500.00 per acre.... []

Id. at pp. 41-42. Jo Ann and Dianna now appeal.

Analysis

7. Denial of Summary Judgment

Jo Ann and Dianna argue that the trial court improperly denied their motion for summary judgment. “We review an appeal of a trial court’s ruling on a motion for summary judgment using the same standard applicable to the trial court.” Perdue v. Gargano, 964 N.E.2d 825, 881 (Ind.2012). “Therefore, summary judgment is appropriate only if the designated evidence reveals ‘no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting Ind. Trial Rule 56(C)). Our review of summary judgment is limited to evidence designated to the trial court. Id. (citing T.R. 56(H)). All facts and reasonable inferences drawn from the evidence designated by the parties is construed in a light most favorable to the non-moving party, and we do not defer to the trial court’s legal determinations. Id.

Jo Ann and Dianna argue they were entitled summary judgment because they established that the sale from Phyllis to Kenneth is void as a matter of law and Kenneth did not specify a material issue of fact to be resolved by the fact-finder. Jo Ann and Dianna rely on Indiana Code Section 29-3-8-5(a), which provides:

Any:

(1) sale or encumbrance of any part of the property of a protected person to a guardian or guardian’s spouse, agent, attorney, or any corporation, trust, or other organization in which the guardian has a substantial beneficial interest; or
(2) other transaction involving the property that is affected by a substantial conflict between the interest of the protected person and the guardian’s personal interest;

is void unless approved by the court.

Assuming this statute encompasses the sale of the farm pursuant to the 2005 option contract, the statute specifically says that a sale of a protected person’s property to the guardian “is void unless approved by the court.” Ind.Code § 29-3-8-5(a) (emphasis added). Because the sale of the farm was subject to the trial court’s approval, the sale is not void as a matter of law.

As for Jo Ann and Dianna’s concerns that the sale is void because Indiana Code Section 29-3-8-5(a) provides no guidance as to what standard applies in approving a sale, we believe that the Legislature has left such a determination to the trial court’s broad discretion. See I.C. § 29-3-2^t(a) (“All findings, orders, or other proceedings under this article shall be in the discretion of the court unless otherwise provided in this article.”). Also, we cannot agree with Jo Ann and Dianna’s assertion that voiding the sale is consistent with the statute’s history. Although Indiana Code Section 29-3-8-5(a) previously did not include the “unless approved by the court” language, in 2005, the Legislature amended the statute to include that phrase. See P.L. 238-2005 § 15. This shows a clear legislative intent to allow trial courts to approve transactions involving the sale or encumbrance of a protected pérson’s property to a guardian. See United Nat. Ins. Co. v. DePrizio, 705 N.E.2d 455, 460 (Ind.1999) (“A fundamental rule of statutory construction is that an amendment changing a prior statute indicates a legislative intention that the meaning of the statute has changed.”).

Because the sale of the farm was subject to trial court approval, it was not void as a matter of law. The trial court properly denied Jo Ann and Dianna’s motion for summary judgment and held a hearing to determine the propriety of the sale of the farm from Phyllis to Kenneth pursuant to the terms of the 2005 option contract.

II. Undue Influence

Jo Ann and Dianna argue that the option contract is not enforceable because Kenneth did not rebut the presumption of undue influence. In the review of claims tried without a jury, the findings and judgment are not to be set aside unless clearly erroneous, and due regard is to be given to the trial court’s ability to assess the credibility of the witnesses. Fraley v. Minger, 829 N.E.2d 476, 482 (Ind.2005) (citing Ind. Trial Rule 52(A)). A judgment is clearly erroneous when there is no evidence supporting the findings or the findings fail to support the judgment and when the trial court applies the wrong legal standard to properly found facts. Id. “While findings of fact are reviewed under the clearly erroneous standard, appellate courts do not defer to conclusions of law, which are reviewed de novo.” Id. To determine that a finding or conclusion is clearly erroneous, our review of the evidence must leave us with the firm conviction that a mistake has been made. Id.

A. Burden of Proof

In addressing Jo Ann and Dianna’s allegations that Kenneth, by virtue of the 1997 power of attorney, unduly influenced Phyllis when she executed the option contract in 2005, the trial concluded in part:

The facts support the conclusion that [Phyllis] was not in a condition that would have allowed anyone to destroy her free agency and constrain her to do what she would not have done, but for the undue influence. First, [Phyllis] was represented at all times on March 3, 2005 by her attorney, Mr. Certain. Mr. Certain testified that [Kenneth] was not present at [sic] prior to or at the time of execution of the of option contract. Mr. Certain also testified that he witnessed [Phyllis] arrive at his office by herself. Mr. Certain testified that he did not recall [Kenneth] being present at any of the previous appointments at which [Phyllis] discussed her estate plan.
In addition, Mr. Certain explained that he has developed procedures to address the issue of undue influence. He explained that he and [Phyllis] discussed issues that would help him determine the presence of any undue influence and was satisfied that [Phyllis] was operating under her own free will.
The court finds that a confidential relationship existed due to the presence of the 1997 power of attorney. However, the facts establish that [Kenneth] was not operating under the authority of the power of attorney on March 3, 2005. The Court further finds that the presumption of undue influence created by the existence of the power of attorney has been rebutted. The Court finds that [Phyllis] was acting under her own power and was on equal footing with Mr. Hayes. In fact, the Court finds that it would be reasonable to conclude that [Phyllis] was in a superior position due to the fact that she was represented by Counsel and [Kenneth] was not. The court finds that there was no undue influence exerted by [Kenneth] upon [Phyllis] and that the contract is valid and binding despite the presence of the power of attorney.
⅜ ⅜ * ⅜ ⅞ ⅜
The Court further finds that [Kenneth] did not exert undue influence over [Phyllis] and any presumption has been overcome by the evidence. While the Court does not believe that the sale of [Phyllis’s] property at the price contained within the option agreement is necessarily in her best interest at this time due to the substantial increase in property value, the court cannot legally find that the Option Agreement executed March 3, 2005 is not a valid and binding contract.
The most telling evidence being that of Mr. Jordan, the land valuation expert, who testified that the price of $2500.00 per acre was market value on or about March 3, 2005. This along with the video of [Phyllis’s] will being executed on March 3, 2005 wherein she appears competent, details her estate plan, the reasons therefore and specifically states that [Kenneth] has exerted no undue influence on her regarding the transactions ....

App. pp. 39-42

Jo Ann and Dianna argue that the trial court did not clearly state the relevant standard of proof and erroneously relied on cases involving confidential relationships based on fact as opposed to confidential relationships based on law. In its order, the trial court cited Barkwill v. Cornelia H. Barkwill Revocable Trust, 902 N.E.2d 836 (Ind.Ct.App.2009), trans. denied, and Carlson v. Warren, 878 N.E.2d 844 (Ind.Ct.App.2007). Although both cases involved confidential relationships based on fact, both cases also discussed confidential relationships that arise as a matter of law and the respective burdens of proof.

In Carlson, we recognized that a power of attorney creates a confidential relationship as a matter of law. Carlson, 878 N.E.2d at 852 n. 4. When a confidential relationship as a matter of law exists and the fiduciary benefits from a questioned transaction, there is presumption of undue influence, and the burden shifts to the fiduciary to rebut the presumption. Id. This presumption may be rebutted by establishing through clear and convincing evidence that the fiduciary acted in good faith, did not take advantage of the position of trust, and that the transaction was fair and equitable. Id.; see also Lucas v. Frazee, 471 N.E.2d 1163, 1167 (Ind.Ct.App.1984) (explaining that to rebut the presumption the dominant party “must demonstrate the questioned transaction was in fact one had at arms length and thus valid.”).

On the other hand, where a confidential relationship is based on the facts of a case, there is not a rebuttable presumption of undue influence. Carlson, 878 N.E.2d at 852. Instead, the burden is on the plaintiff to establish not only the existence of a confidential relationship in fact between the parties but also to prove that the parties to the questioned transaction did not deal on terms of equality. Id. Only when the plaintiff met this burden will the burden of proof shift to the defendant to show that “ ‘no deception was practiced, no undue influence was used, and all was fair, open, voluntary, and well understood.’ ” Id. (quoting Lucas, 471 N.E.2d at 1167).

It is true that the trial court cited Carlson and described the burden shifting approach in a confidential relationship based on fact. However, Kenneth does not dispute the power of attorney created a confidential relationship, and the trial court specifically acknowledged the two types of confidential relationships and found “that a confidential relationship existed due to the presence of the 1997 power of attorney.” App. pp. 39-40. There is no indication that the trial court improperly placed the burden of establishing a confidential relationship on Jo Ann and Dianna.

Thus, the issue is whether Kenneth rebutted the presumption of undue influence with clear and convincing evidence. Although Jo Ann and Dianna contend that Phyllis’s estate plan was not “well understood” by Phyllis, this is an argument to reweigh the evidence, which we decline. The trial court’s numerous findings, which were based on Phyllis’s attorney’s testimony and the video of Phyllis taken at the time the option contract was executed, support its conclusion that Kenneth did not unduly influence Phyllis. Further, any doubt as to whether the trial court held Kenneth to the higher standard of proof is eliminated by the trial court’s conclusion “that it would be reasonable to conclude that [Phyllis] was in a superior position” because she was represented by counsel and Kenneth was not. App. p. 40. This is not a basis for reversing the trial court’s order.

B. Competency

In its order, the trial court determined whether the option was a valid contract and assessed Phyllis’s competency when she executed the option contract. The trial court stated, “The test to determine a person’s mental capacity to contract is whether the person was able to understand in a reasonable manner the nature and effect of his act.” Id. at 34 (citing Gallagher v. Cent. Indiana Bank, N.A., 448 N.E.2d 304, 307 (Ind.Ct.App.1983)). The trial court concluded, “The evidence establishes that [Phyllis] understood the nature and effect of her acts and also understood the terms and the reasons for the terms of the contract. The most compelling evidence comes from [Phyllis’s] video testimony taken on March 3, 2005, the day of the execution of the contract.” Id. at 36. The trial court also relied on the testimony of Phyllis’s attorney, her attorney’s assistant, and her physician to determine that Phyllis “was competent to enter into the contract” and “was able to understand the nature and effect of her actions and had a reasonable understanding of the terms of the contract.” Id. at 38.

On appeal, Jo Ann and Dianna contend that the trial court misstated the competency analysis as it relates to undue influence and that the trial court should have applied the following standard in assessing Phyllis’s competency:

Courts may also take into account the fact that the subordinate party suffers from ‘great mental weakness’ in its determination that undue influence contributed to the transaction. Complete unsoundness of mind is not necessary to support a finding of undue influence; rather, weakness of mind when combined with other factors is sufficient.

Nichols v. Estate of Tyler, 910 N.E.2d 221, 229 (Ind.Ct.App.2009).

Based on Kenneth’s motion for summary judgment and the arguments by counsel at the hearing, it appears that the competency issue related to Phyllis’s mental ability to contract, not whether she was unduly influenced by Kenneth. As such, the purported misstatement of law does not establish that the trial court’s order is clearly erroneous. Nevertheless, Jo Ann and Dianna’s argument that their testimony at the hearing and the medical records demonstrated Phyllis suffered from great mental weakness when she executed the option contract is simply a request to reweigh the evidence, which we cannot do. The trial court’s findings and conclusions about Phyllis’s testimony and demeanor in the video and the testimony of the other witnesses do not support Jo Ann and Dianna’s assertions that Phyllis suffered great mental weakness or was otherwise incompetent in 2005. This argument does not establish that the trial court’s order was clearly erroneous.

C. Estate Plan

Jo Ann and Dianna argue that the trial court failed to make findings regarding the mortgage, promissory note, option contract and will and how they related to Phyllis’s estate plan. Jo Ann and Dianna assert “that their mother executed these documents believing that they would benefit Kenneth, and not herself.” Id. at 27. As such, Jo Ann and Dianna contend Kenneth failed to overcome the presumption of undue influence by clear and convincing evidence.

Jo Ann and Dianna are asking us to reweigh the evidence, which we cannot do. The estate plan documents were admitted into evidence along with Phyllis’s attorney’s testimony regarding the plan and a 1997 “Addendum and Agreement of Debt” between Phyllis and Kenneth. This agreement indicated that Kenneth had loaned his father and Phyllis $179,539.80 for the operation of the farm in the mid-1980s and that no payments had been made on the debt.

Moreover, in the video, Phyllis described Kenneth as having “saved the farm” during a difficult time in the 1980s. Ex. 2(A) at 1:45. Phyllis also explained why she crafted the estate plan in the manner she did and stated that she wanted her bills, including the money she and her husband owed Kenneth, to be paid first. She also acknowledged that the estate plan called for Kenneth to receive more of her assets than her other children because she was repaying a debt to him. Finally, she indicated that Kenneth wanted an opportunity to buy the farm, which she thought was “reasonable” and consistent with her husband’s wishes. Id. at 5:10. Jo Ann and Dianna simply have not shown that the manner in which the estate plan was crafted establishes that Kenneth failed to rebut the presumption of undue influence.

Conclusion

Jo Ann and Dianna have not established that the trial court erroneously denied their motion for summary judgment or that the trial court’s conclusion that Phyllis was not acting under undue influence when she executed the option contract was clearly erroneous. We affirm.

Affirmed.

BAKER, and CRONE, JJ., concur.

      . Although many of the trial court’s findings and conclusions mirror Kenneth's proposed findings and conclusions, the trial court did not adopt Kenneth’s findings and conclusions verbatim. For example, the last two — and most significant — paragraphs of the trial court’s order were not included in Kenneth’s proposed findings. Jo Ann and Dianna’s concerns about the trial court’s verbatim adoption of Kenneth’s proposed findings and conclusions are not well founded.

      . Although Jo Ann and Dianna argued that the option contract is void as a matter of law in their motion for summary judgment, their memorandum in support of summary judgment and arguments on appeal are based on the sale being void because it will occur during the guardianship. Thus, our review of the denial of Jo Ann and Dianna's motion for summary judgment is based on whether the sale is void as a matter of law.

      . In response to Jo Ann and Dianna’s motion for summary judgment, Kenneth argued that Indiana Code Section 29-3-8-5 did not apply because Kenneth was not Phyllis's guardian and Phyllis was not a protected person when she made the sale available to Kenneth in 2005. In his Appellee’s Brief, Kenneth specifically cites Indiana Code Section 29-3-8-7, which provides:
      If the court finds that:
      (1) an incapacitated person who is a protected person did, before the person became an incapacitated person, enter into a written contract, including a contract for the sale, division, or other disposition of property;
      (2) the obligations of the contract have not been fully carried out; and
      (3) the contract was a good and binding contract at the time of the making of the contract;
      the court shall authorize the guardian of the protected person to perform the contract without notice or hearing unless otherwise ordered by the court.
      Given that the trial court has already conducted a hearing and approved the sale, we need not determine whether the trial court should have authorized the bank, as the guardian over Phyllis’s estate, to perform the contract without notice or a hearing.

      . In their reply brief, Jo Ann and Dianna appear to assert that, pursuant to Indiana Code Section 29-3-8-5(a), the sale is presumed to be void and to avoid summary judgment Kenneth had the burden of offering reasons why the trial court should approve the sale. To the extent this presumption and burden shifting approach are proper and timely raised, Kenneth's assertions that he was not Phyllis’s guardian and that Phyllis was not a protected person when she executed the option contract were sufficient reasons for the trial court to deny summary judgment and hold a hearing to determine the propriety of the sale.

      . In 2005, after the option contract was executed, Indiana Code Section 30-5-9-2 was amended to eliminate the presumption of invalidity of a gift, bequest, transfer, or transaction between the principal and the attorney-in-fact if it is made by the principal and not the attorney-in-fact acting for the principal under the power of attorney. See In re Estate of Rickert, 934 N.E.2d 726, 730 (Ind.2010). Given the timing of the amendment, Kenneth concedes it is inapplicable here.

      . Jo Ann and Dianna take issue with the trial court’s observation that Kenneth was not operating under the authority of the power of attorney when the option contract was signed. This does not suggest that the trial court was confused about the parties’ burdens of proof. It was a valid observation that Kenneth did not execute the option contract to himself under the authority of the power of attorney and is consistent with the trial court’s finding that Kenneth did not act under the authority of the power of attorney prior to 2006. See App. p. 32.

      . To the extent Jo Ann and Dianna challenge the trial court's evidentiary rulings during the cross-examination of Phyllis's attorney, this argument is not supported by citation to authority and is waived. Dickes v. Felger, 981 N.E.2d 559, 562 (Ind.Ct.App.2012) ("A party waives an issue where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record.”); Ind. Appellate Rule 46(A)(8)(a).


author: CRONE, Judge.

text:
    Floyd William TREECE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 79A05-1309-CR-458.
    Court of Appeals of Indiana.
    May 29, 2014.

      David T.A. Mattingly, Mattingly Legal, LLC, Lafayette, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Floyd William Treece was convicted of possession of methamphetamine and possession of an illegal drug lab and admitted to being a habitual offender. He was' sentenced to an aggregate term of fourteen years, which included a term of commitment to the Department of Correction (“DOC”), followed by time in a community corrections program, and the remainder suspended to probation. Before the scheduled release date from his DOC commitment, he requested and was granted assignment to a community transition program (“CTP”) for the last 120 days of his DOC commitment. He was assigned to the CTP at Tippecanoe County Community Corrections (“TCCC”).

During his time in the CTP, Treece discovered another person sitting in his chair and kicked him in the face, which was a violation of TCCC’s rule against assault and battery. He admitted to the violation, and TCCC removed him from its CTP. When Treece was released from the DOC, he reported to TCCC for the community corrections portion of his sentence. TCCC informed him that he had been rejected from participation in any of its programs as a result of his violent rule violation. The State filed a motion requesting that Treece be committed to the DOC and that his placement in community corrections be revoked, which the trial court granted.

Treece appeals the revocation of his community corrections placement. He argues that the trial court abused its discretion in revoking his community corrections placement because (1) the TCCC did not have the authority to reject his placement in community corrections for a rule violation he committed while assigned to the CTP because the CTP is a DOC program and the DOC is not statutorily authorized to reject an inmate’s placement in community corrections as a disciplinary action; and (2) the trial court failed to consider the progress he made toward rehabilitation during his DOC commitment. We conclude that the CTP is a TCCC program and that the statutes governing the DOC’s disciplinary actions do not apply to TCCC. Therefore, TCCC had the authority to reject Treece from his placement in community corrections for a violation he committed while in the CTP. We also conclude that the trial court was not required to consider his progress toward rehabilitation when determining whether his rule violation warranted revocation of his community corrections placement. We conclude that he committed an act of violence, and therefore the trial court did not abuse its discretion in revoking his community corrections placement. Therefore, we affirm. We also remand for the trial court to clarify its sentencing order.

Facts and Procedural History

Treece pled guilty to class D felony possession of methamphetamine and class C felony possession of an illegal drug lab and admitted to being a habitual substance offender. The trial court sentenced Treece to consecutive terms of three years for possession of methamphetamine, six years for possession of an illegal drug lab, and five years for being a habitual substance offender, for an aggregate term of fourteen years. The trial court ordered Treece to “execute eight (8) years at the [DOC] to include two (2) years with [TCCC] at a level to be determined by Community Corrections.” Appellant’s App. at 15. The sentencing order also stated that “[Treece’s] sentence calls for an executed term of imprisonment of ten years.” Id. at 17. The trial court ordered that four years be suspended and that Treece be placed on supervised probation for four years. In addition, the sentencing order provided, “[Treece] shall obey all Community Corrections Rules. If he is rejected from Community Corrections, that time will be spent in the Department of Correction.” Id. at 16.

Treece was incarcerated at the Westville Correctional Facility. By letter dated February 1, 2013, he informed the trial court that his release date was July 25, 2013, and requested assignment to a CTP for the last 120 days of his commitment to the DOC. After the trial court received a recommendation from the TCCC CTP recommendation panel that Treece be assigned to the CTP, the court granted Treece’s request and ordered the DOC to assign him to the CTP. Id. at 28. Treece was transported to TCCC to serve in its CTP until July 25, 2013, at which time he was to begin serving the two-year portion of his sentence with TCCC pursuant to the sentencing order.

On June 22, 2013, Treece was serving in the CTP at TCCC when he returned to the TCCC day room and found that someone was sitting in a seat that he had formerly occupied. Tr. at 10. A still from the video recording of the room in which the incident occurred shows over sixty seats, almost all of which were unoccupied. Appellant’s App. at 33. Instead of taking one of the other seats, Treece kicked the person in the face. A TCCC hearing officer conducted a hearing, at which Treece admitted to kicking the inmate in the face. The hearing officer concluded that Treece violated TCCC Rule 212 regarding assault and battery. Id. at 32. As a consequence of his rule violation, TCCC removed him from its CTP. On July 9, 2013, the trial court received notice from TCCC that it was rejecting Treece from the community corrections portion of his sentence due to fighting while he was in its CTP. Id. at 29. TCCC explained that it had a “zero tolerance for participants that fight” and that if “a participant fights while on [TCCC] they will never be accepted for placement again.” Id.

On July 25, 2013, Treece was released from commitment to the DOC. He reported to TCCC to serve his two years in community corrections pursuant to the sentencing order, at which time he was informed that TCCC was rejecting his placement in its program. On July 26, 2013, the State filed a motion to commit Treece to the DOC, asking the court to revoke his community corrections placement and remand him to the custody of the DOC for the two years that he was supposed to serve in community corrections. At the hearing on the State’s motion, Treece argued that TCCC did not have the authority to reject him from its program because at the time of his rule violation he was still in the CTP, which, he argued, was a DOC program. The trial court concluded that TCCC could reject Treece based upon his rule violation while assigned to its CTP and granted the State’s motion. Treece appeals.

Discussion and Decision

Standard of Review

Treece presents two arguments that the trial court abused its discretion in revoking his community corrections placement. Before addressing his arguments on the merits, we observe,

Both probation and community corrections programs serve as alternatives to commitment to the DOC, and both are made at the sole discretion of the trial court. A defendant is not entitled to serve a sentence in either probation or a community corrections program. Rather, placement in either is a matter of grace and a conditional liberty that is a favor, not a right.
The standard of review of an appeal from the revocation of a community corrections placement mirrors that for revocation of probation. That is, a revocation of community corrections placement hearing is civil in nature, and the State need only prove the alleged violations by a preponderance of the evidence.

McQueen v. State, 862 N.E.2d 1237, 1242 (Ind.Ct.App.2007) (citations and quotation marks omitted).

Probation revocation is a twostep process. First, the court must make a factual determination that a violation of a condition of probation actually has occurred. If a violation is proven, then the trial court must determine if the violation warrants revocation of the probation. Indiana has codified the due process requirements at Ind.Code § 35-38-2-3 by requiring that an evidentiary hearing be held on the revocation and providing for confrontation and cross-examination of witnesses and representation by counsel. When a probationer admits to the violations, the procedural due process safeguards and an eviden-tiary hearing are not necessary. Instead, the court can proceed to the second step of the inquiry and determine whether the violation warrants revocation. In making the determination of whether the violation warrants revocation, the probationer must be given an opportunity to present evidence that explains and mitigates [his] violation.

Sanders v. State, 825 N.E.2d 952, 955 (Ind.Ct.App.2005) (citations omitted), trans. denied.

Section 1 — TCCC’s Authority to Reject Treece

Treece’s first argument is that the trial court erred in concluding that TCCC had the authority to reject him from the community corrections portion of his sentence based on a rule violation he committed while still committed to the DOC. The State does not directly address TCCC’s authority to reject an inmate but argues that the trial court’s discretion to revoke an offender’s placement in a community corrections program may be exercised before the offender’s placement commences, citing Ashba v. State 570 N.E.2d 937 (Ind.Ct.App.1991), cert. denied (1992) and Million v. State, 646 N.E.2d 998 (Ind.Ct.App.1995).

In Ashba, this Court held that the trial court could properly revoke Ashba’s probation before his probationary period began for an offense that he committed while he was on parole from the DOC. 570 N.E.2d at 940. The court explained that the terms of Ashba’s probation attached to his suspended sentence from the moment that the sentence was imposed. Id.; see also Baker v. State, 894 N.E.2d 594, 596-98 (Ind.Ct.App.2008) (holding that probation may be revoked for commission of crime while serving executed portion of sentence). In Million, this Court held that the trial court did not abuse its discretion in revoking Million’s placement in a community corrections program before that placement began for conduct that occurred while he was in work release for a prior conviction. 646 N.E.2d at 1002; see also Toomey v. State, 887 N.E.2d 122, 124-25 (Ind.Ct.App.2008) (holding that trial court did not lack authority to revoke home detention upon defendant’s violation of conditions of work release).

Treece acknowledges Ashba and Million but argues that they are inapposite because neither case involved a CTP. He argues that TCCC had no authority to reject him because (1) a CTP is a DOC program, (2) permissible DOC disciplinary actions are provided for by statute, and (3) such disciplinary actions do not include rejection from a community corrections program.

To the extent that our analysis of Treece’s argument relies on statutory interpretation, we observe that

[b]ecause it presents a question of law, we review a matter of statutory interpretation using a de novo standard. When interpreting a statute, our goal is to determine and give effect to the legislature’s intent in promulgating it. Thus, we begin by examining the language of the statute, presuming that the words were selected to express their common and ordinary meanings. Where the statute is unambiguous, we accord each word and phrase its plain, ordinary, and usual meaning, without having to resort to rules of construction to decipher meanings.

Leedy v. State, 998 N.E.2d 307, 309-10 (Ind.Ct.App.2013) (citations omitted), trans. denied (2014).

Treece’s argument begins with the assertion that a “CTP is a DOC program.” Appellant’s Br. at 6. In support, he cites Indiana Code Chapter 11-10-11.5, which governs the assignment of offenders to CTPs. Indiana Code Section 11-10-11.5-1 states in relevant part, “This chapter applies to a person: (1) who is committed to the [DOC] under IC 35-50 for one (1) or more felonies.” Section 11-10-11.5-1 merely states that the provisions in that chapter for assignment to a CTP apply to persons who are committed to the DOC. The fact that a CTP is for an offender committed to the DOC does not mean that a CTP is a DOC program.

Treece’s assertion that a CTP is a DOC program completely ignores the numerous statutory provisions that indicate that a CTP is operated by a community corrections program. CTP is defined by Indiana Code Section 11-8-1-5.5 as follows:

“Community transition program” means assignment of a person committed to the [DOC] to:
(1) a community corrections program; or
(2) in a county or combination of counties that do not have a community corrections program, a program of supervision by the probation department of a court;
for a period after a person’s community transition program commencement date until the person completes the person’s fixed term of imprisonment, less the credit time the person has earned with respect to the term.

(Emphasis added.)

Community corrections program means a community based program that provides preventive services, services to offenders, services to persons charged with a crime or an act of delinquency, services to persons diverted from the criminal or delinquency process, services to persons sentenced to imprisonment, or services to victims of crime or delinquency, and is operated under a community corrections plan of a county and funded at least in part by the state subsidy provided in IC 11-12-2.

Ind.Code § 11-12-1-1 (emphasis added). Counties are required to establish CTPs as part of their community corrections programs. Ind.Code § 11-12-10-1. Also, a county may establish a community corrections advisory board to operate its community corrections programs, which may be operated for any of the following:

(1) The prevention of crime or delinquency.
(2) Persons sentenced to imprisonment in a county or local penal facility other than a state owned or operated facility.
(3) Committed offenders.
(4) Persons ordered to participate in community corrections programs as a condition of probation.

Ind.Code § 11-12-1-2 (emphasis added). Further, a CTP may include any of the services provided by a community corrections program: “A community transition program for a county must provide services that improve an offender’s chances of making a successful transition from commitment to employment and participation in the community without the commission of further crimes. The program may in-elude any of the services described in IC ll-12-l-2.5[].” Ind.Code § 11-12-10-2.

While assigned to a CTP, “a person must comply with the rules concerning the conduct of persons in the [CTP] ... that are adopted hy the community corrections advisory board establishing the program ” and “any conditions established by the sentencing court for the person.” Ind.Code § ll-10-11.5-ll(a) (emphasis added). If a person violates a CTP rule or any condition established by the sentencing court, the CTP is authorized to take the following actions:

The [CTP], following a hearing and upon a finding of probable cause that the offender has failed to comply with a rule or condition under section 11 of this chapter, may:
(1) request a court to issue a warrant ordering the department to immediately:
(A) return the offender to the [DOC]; or
(B) reassign the offender to a program or facility administered by the [DOC]; or
(2) take disciplinary action against an offender who violates rules of conduct. Disciplinary action under this subdivision may include the loss of earned credit time under IC 35-50-6-5.

Ind.Code § ll-10-11.5-11.5(b). This statutory framework shows that a CTP is not a DOC program but a community corrections program provided for persons committed to the DOC. Further, community corrections programs set their own rules and policies to which an offender is subject.

Here, when Treece was assigned to a CTP he was assigned to TCCC, which operated the CTP. Treece violated TCCC rules. TCCC took the action of removing Treece from its CTP, as it is authorized to do. See id. TCCC also has a policy to reject any person who commits an act of violence while participating in one of its programs from any further participation in its programs. It is of no moment that Treece was still committed to the DOC when he violated TCCC rules. Treece’s commitment to the DOC does not render TCCC powerless from enforcing its rules and policies.

Treece argues that the CTP is subject to the disciplinary rules promulgated under Indiana Code Chapter 11-11-5 based on Section 11-11-5-1 (a), which provides, “This chapter applies to persons: (1) placed in a community corrections program; or assigned to a[CTP].” Although Chapter 11-11-5 applies to offenders who are assigned to a CTP, we disagree with Treece that the disciplinary rules in Sections 11-11-5-3 and -4 limit the authority of CTPs to impose their own disciplinary measures on persons in their programs who violate their rules. Section 11-11-5-3 lists permissible disciplinary actions and states, “The [DOC] may impose any of the following as disciplinary action.” (Emphasis added.) Likewise, Section 11-11-5-4 lists impermissible disciplinary actions and provides, “The [DOC] may not impose the following as disciplinary action.” (Emphasis added.) We observe that “[i]t is just as important to recognize what the statute does not say as it is to recognize what it does say.” State v. Dugan, 793 N.E.2d 1034, 1036 (Ind.2003). We conclude that Sections 11-11-5-3 and -4 specifically limit the actions that the DOC may take against offenders while they are placed in a community corrections program or assigned to a CTP. Sections 11-11-5-3 and -4 control the DOC’s disciplinary actions with regard to offenders in a CTP, but they do not control or limit a CTP’s disciplinary actions with regard to offenders in CTP.

A CTP’s authority to discipline offenders when they are assigned to a CTP is granted in Indiana Code Section 11-10-11.5-11.5(b), which provides that a CTP may remove an offender from its program upon a rule violation or take “disciplinary action” against the offender. It does not say that a CTP may take disciplinary action under Indiana Code Section 11-11-5-3. If the legislature wanted CTPs to take only the disciplinary actions listed in Section 11-11-5-3, it could have cited to that section. We conclude that the TCCC had the authority to reject Treece from its community corrections programs after he violated its rules while assigned to its CTP.

Section 2 — Trial Court’s Failure to Consider Treece’s Progress

Treece also argues that even if TCCC had the authority to reject him from community corrections for his CTP rule violation, the trial court abused its discretion in revoking his placement by failing to account for his achievements while committed to the DOC. Specifically, he argues that he completed his GED and the Clean Lifestyle is Freedom Forever (CLIFF) program, had obtained fulltime employment, and was “seemingly being rehabilitated.” Appellant’s Br. at 10. Initially, we observe that trial courts are not required to balance “aggravating or mitigating circumstances when imposing sentence in a probation revocation proceeding.” Mitchell v. State, 619 N.E.2d 961, 964 (Ind.Ct.App.1993), overruled in part by Patterson v. State, 659 N.E.2d 220, 223 n. 2 (Ind.Ct.App.1995) (holding that in a probation revocation proceeding, probationer’s mental health should be considered). In addition, violation of a single condition of placement is sufficient to revoke placement. Gosha v. State, 873 N.E.2d 660, 663 (Ind.Ct.App.2007). Here, Treece did not merely break a rule, he engaged in an act of violence after minimal provocation. Someone was sitting in a seat that he had previously sat in, and rather than taking one of the many other unoccupied seats, he kicked the person in the face. We conclude that the trial court did not abuse its discretion in revoking Treece’s placement in community corrections.

Section 3 — Remand for Sentencing Clarification

Treece received an aggregate sentence of fourteen years. The sentencing order states that Treece “shall execute eight (8) years at the [DOC] to include two (2) years with [TCCC] at a level to be determined by Community Corrections” and “that four (4) years of the sentences of imprisonment should be, and the same hereby are, suspended and [Treece] placed on supervised probation for four (4) years.” Appellant’s App. at 15. Do we interpret this order to mean eight years at the DOC plus two years with TCCC plus four years suspended for a total sentence of fourteen years? Based on Treece’s release date from the DOC of July 25, 2013, and the State’s calculation of his time served, it appears that the DOC interpreted the sentencing order to mean that the eight years executed consists of six years at the DOC and two years with TCCC. If that is the case, Treece’s sentence will be only twelve years, not fourteen. The sentencing order’s paragraph pertaining to the cost of Treece’s incarceration stated that “[his] sentence calls for an executed term of imprisonment of ten years.” Id. at 17. The chronological case summary reads, “[Treece] sentenced to 14 years to execute 10 years.” Id. at 7. “[I]t is our duty to ‘correct sentencing errors, sua sponte, if necessary.’ ” Jones v. State, 775 N.E.2d 322, 331 (Ind.Ct.App.2002) (quoting Dickson v. State, 624 N.E.2d 472, 474 (Ind.Ct.App.1993)). Accordingly, we remand to the trial court to clarify Treece’s sentence.

Affirmed and remanded.

BAKER, J., and BARNES, J., concur.

      . For example, Indiana Code Chapter 11-10-11.5 provides for the commencement and duration of the CTP (Sections 5, 6, and 9), the DOC's duties such as notification of a defendant’s eligibility to the trial court and the prosecutor (Sections 2 and 4), transportation of the offender (Sections 7 and 8), and the collection and distribution of the offender's earnings while in the CTP (Section 12).

      . Indiana Code Section 11-12-1-2.5 lists services that community corrections programs may include: residential or work release programs; house arrest, home detention, and electronic monitoring programs; community restitution or service programs; victim-offender reconciliation programs; jail services programs; jail work crews; community work crews; juvenile detention alternative programs; day reporting programs; faith based programs; and other community corrections programs approved by the DOC. This section has been amended, effective July 1, 2014, to read, "The community corrections programs described in section 2 of this chapter shall use evidence based services, programs, and practices that reduce the risk for recidivism among person who participate in the community corrections programs.” Pub. Law 158— 2014. However, Indiana Code Section 11-12-10-2 has not been amended and continues to permit CTPs to include any of the services permitted by community corrections programs.

      . This is not to be confused with the probationer right to “an opportunity to present evidence that explains and mitigates [his] violation.” See Sanders, 825 N.E.2d at 955.

      . Indiana Code Section 35-38-2.6-3 indicates that if the trial court decides to place a defendant in a community corrections program as an alternative to commitment to the DOC, tlie trial court should suspend the defendant’s sentence. We also observe that the trial court may order participation in community corrections programs as a condition of probation. Ind.Code § 11-12-1-2.

      ."[Treece] was released from the DOC portion of his executed sentence on July 25, 2013 — eight hundred and five (805) days after sentencing. Assuming [Treece] earned and retained all good time credit available to him in this case, he has completed two thousand one hundred and ninety (2,190) days — or six years — of his eight-year executed sentence.” Appellant’s App. at 30 (emphasis added).


author: VAIDIK, Chief Judge.

text:
    In re the PATERNITY OF V.A., (Minor Child), R.A., Appellant/Respondent, v. B.Y., Appellee/Petitioner.
    No. 39A04-1310-JP-512.
    Court of Appeals of Indiana.
    May 30, 2014.
    Bryan Lee Ciyou, Lori B. Schmeltzer, Cassandra Mellady, Ciyou & Dixon, P.C., Indianapolis, IN, Attorneys for Appellant.

      Mary Beth Mock, Madison, IN, Attorney for Appellee.
   OPINION

VAIDIK, Chief Judge.

Case Summary

This case addresses the interaction between Indiana Trial Rule 76(B), which gives litigants the right to a change of judge, and Indiana Trial Rule 63(A), which requires a judge who hears evidence, if available, to make all rulings relating to that evidence.

In August 2012, after a hearing, Judge Ted Todd issued a final order addressing paternity, custody, child support, and other issues. R.A. (“Father”) appealed that order. While the appeal was pending, Father filed a modification petition and a request for a change of judge. Judge Todd granted Father’s change-of-judge request, and Judge James Morris (“Special Judge Morris”) assumed jurisdiction. When this Court resolved Father’s appeal, affirming in part, reversing in part, and remanding in part, a dispute arose over who would rule on the remanded issues— Judge Todd or Special Judge Morris. Special Judge Morris ultimately ruled that Trial Rule 63(A) required Judge Todd, who had since retired and taken senior-judge status, to rule on the remanded issues.

On appeal, Father contends that Trial Rules 76(B) and 63(A) conflict, and his right to a change of judge under Trial Rule 76(B) trumps Trial Rule 63(A)’s preference for the judge who heard the evidence. We conclude that the rules do not conflict; rather, they govern different aspects of Father’s case — Father’s change-of-judge request under Trial Rule 76(B) applies prospectively to his modification petition and Trial Rule 63(A) operates retroactively to ensure that the remanded issues are considered by the judge who heard the evidence, Judge Todd. We affirm.

Facts and Procedural History

Father and B.Y. (“Mother”) have one child together, V.A., born in June 2003. Father and Mother were never married. When Mother became pregnant with V.A., Father invited her to move into his home. Mother, her two children, V.A., and Father all lived together in Father’s home until June 2011 when Mother took the children and moved to Columbus, Indiana.

Shortly after Mother moved out of Father’s home, Father filed a petition to establish V.A.’s paternity, as well as custody, parenting time, and child support. In December 2011 the trial court issued a provisional order establishing parenting time, which included bi-weekly phone calls between Father and V.A. In March 2012 Father filed a contempt petition alleging that Mother had not complied with the provisional order allowing him to have biweekly phone calls with V.A. On August 24, 2012, after a prolonged legal battle, Judge Todd issued a final order granting sole physical custody of V.A. to Mother, requiring Father to pay child support, and providing Father with parenting time pursuant to the Indiana Parenting Time Guidelines. The trial court did not address the issue of legal custody or Father’s pending contempt petition.

Father appealed the August 2012 order, raising several issues. This Court issued an unpublished opinion affirming in part, reversing in part, and remanding in part. In re Paternity of V.A., No. 39A01-1209-JP-413, 2013 WL 1932932 (Ind.Ct.App. May 10, 2013). Specifically, this Court remanded the case for the trial court to rule on the issue of legal custody and Father’s pending contempt petition. We also directed the trial court to clarify the factual basis for its child-support order and, if the award deviated from the Child Support Guidelines, to enter findings of facts supporting its decision to deviate from the guidelines.

While Father’s appeal was pending before this Court, Father filed a petition to modify custody and child support and a request for a change of judge under Indiana Trial Rule 76(B). The trial court granted Father’s motion for change of judge, and Special Judge Morris assumed jurisdiction in early 2013.

After this Court issued its May 2013 opinion, a dispute arose over who would rule on the remanded issues — Judge Todd or Special Judge Morris. Mother filed a motion requesting that Judge Todd, the original trial-court judge who had since retired and begun serving as an active senior judge, rule on the remanded issues. In response, Father argued that because Special Judge Morris had assumed jurisdiction pursuant to Indiana Trial Rule 76(B), he should rule on the remanded issues. Special Judge Morris ultimately determined that Indiana Trial Rule 63(A) required Judge Todd, who he found was available, to rule on the remanded issues.

Father filed a motion to correct error and relief from judgment. The trial court did not rule on Father’s motion or set the matter for a hearing within forty-five days. Therefore, Father’s motion was deemed denied.

Father now appeals.

Discussion and Decision

This case addresses the interaction between Indiana Trial Rule 76(B) and Indiana Trial Rule 63(A). Father contends that because Special Judge Morris had assumed jurisdiction pursuant to Indiana Trial Rule 76(B), he should rule on all pending matters, including the remanded issues. In making this argument, Father asserts that Trial Rules 76(B) and 63(A) conflict, and his right to a change of judge under Rule 76(B) trumps Rule 63(A)’s preference for the judge who heard the evidence, Judge Todd.

The interpretation of the Indiana Trial Rules is a question of law, which we review de novo. Gulf Stream Coach, Inc. v. Cronin, 903 N.E.2d 109, 111 (Ind.Ct.App.2009). Our objective in construing their meaning is to give effect to the intent underlying the rule. Dreyer & Reinbold, Inc. v. AutoXchange.com., Inc., 771 N.E.2d 764, 767 (Ind.Ct.App.2002), trans. denied. We construe the Indiana Trial Rules together and harmoniously if possible. Id.

We must determine who should decide the remanded issues: Judge Todd, who presided over the initial paternity hearing, or Special Judge Morris, who was appointed in connection with Father’s petition to modify custody and child support. Father argues that Special Judge Morris must hear the remanded issues because Judge Todd was divested of jurisdiction when Special Judge Morris assumed jurisdiction. Appellant’s Br. p. 15. We disagree.

In a paternity proceeding, Indiana Trial Rule 76(B) allows a party to make one change-of-judge request before entry of a final decree and one change-of-judge request in connection with a petition to modify that decree. See Ind. Trial Rule 76(B) (“In civil actions, where a change may be taken from the judge, such change shall be granted upon the filing of an unverified application or motion without specifically stating the ground therefor.... [Pjrovided, however, a party shall be entitled to only one [1] change from the judge. After a final decree is entered in a ... paternity case, a party may take only one change of judge in connection with petitions to modify that decree, regardless of the number of times new petitions are filed.”); see also In re Marriage of Turner, 785 N.E.2d 259, 262 (Ind.Ct.App.2003); Trojnar v. Trojnar, 656 N.E.2d 287, 290 (Ind.Ct.App.1995). When a request for a change of judge accompanies a petition to modify, the right to a change of judge “must be viewed prospectively, inasmuch as that right is derived from the newly-filed petition and does not relate back to pending matters.” Turner, 785 N.E.2d at 262. A third opportunity to request a change of judge arises in cases where the trial court or a reviewing court orders a new trial, or where a reviewing court remands a case such that a further hearing and new evidence must be heard. Ind. Trial Rule 76(C)(3) (a motion for a change of judge on remand must be made within ten days “after the issues are first closed on the merits.”).

Father’s lone change-of-judge request accompanied his petition to modify the paternity decree. As a result, Special Judge Morris’s jurisdiction applies prospectively to Father’s modification request; it does not relate back to matters stemming from the initial paternity hearing — in other words, the remanded issues. See Turner, 785 N.E.2d at 262. Moreover, Father did not request a change of judge on remand. Thus, the remanded issues remain with Judge Todd.

Indiana Trial Rule 63(A) supports this conclusion. Trial Rule 63(A) provides in part:

The judge who presides at the trial of a cause or a hearing at which evidence is received shall, if available, hear motions and make all decisions and rulings required to be made by the court relating to the evidence and the conduct of the trial or hearing after the trial or hearing is concluded.

Trial Rule 63 recognizes that the judge who directed a trial is, if available, the best person to rule on post-trial matters. Id. The underlying policy behind Trial Rule 63(A) is judicial economy: by requiring the original judge to rule on the issues, a second judge need not duplicate the original judge’s work or prolong a determination of the issues.

Here, Special Judge Morris found that Judge Todd, an active senior judge, is available to hear the remanded issues, and we will not second-guess this conclusion; Special Judge Morris is better able to determine Judge Todd’s availability than we are. Moreover, retirement does not make a judge automatically unavailable under Trial Rule 63(A). Roberts v. State, 500 N.E.2d 197, 199 (Ind.1986). Because Judge Todd heard the evidence at trial that pertains to the remanded issues and is available to rule on those issues, Trial Rule 63(A) requires that he do so.

Father worries that our holding will make judges’ retirement illusory and obtaining a change of judge impossible. He also argues that involving two judges in a single case will cause confusion. We do not share Father’s concerns. Though retirement does not make a judge automatically unavailable, “a retired judge may be unavailable by virtue of ... sickness, absence, or unwillingness to act.” Id. In this case, Judge Todd is available because, though retired, he remains an active senior judge. As for Father’s concern about obtaining a change of judge, a litigant may request a change of judge as many as three times in a given case, as explained above, and Father successfully obtained a change of judge with respect to his modification petition. Finally, we are confident that Judge Todd and Special Judge Morris will confine their rulings to the issues before them and avoid unnecessary confusion.

In conclusion, we find that Trial Rule 76(B) and Trial Rule 63(A) do not conflict; rather, they govern different aspects of Father’s case — Father’s change-of-judge motion under Trial Rule 76(B) applies prospectively to allow Special Judge Morris to hear his modification petition, and Trial Rule 63(A) operates retroactively to ensure that the remanded issues are considered by the judge who heard the evidence, Judge Todd.

Affirmed.

RILEY, J., and MAY, J., concur.

      . Although Father refers to the child as V.W.A., we refer to him as V.A. in this case to be consistent with our previous decision. See In re Paternity of V.A., No. 39A01-1209-JP-413, 2013 WL 1932932 (Ind.Ct.App. May 10, 2013).

      . Father also filed a second contempt motion against Mother at this time. The record does not contain any information regarding the substance of the second contempt motion, but in his brief, Father states that the modification and contempt motions are “based on changed circumstances that occurred after the issuance of the August 24, 2012 Order.” Appellant’s Br. p. 5.

      . Special Judge Morris later dismissed Father’s modification and contempt petitions, concluding that he did not have jurisdiction to rule on those issues. That order is addressed in another case decided today, In re Paternity of V.A., No. 39A01-1307-JP-304, 10 N.E.3d 65, 2014 WL 2440390 (Ind.Ct.App. May 30, 2014).

      . Because Father did not request a change of judge under Trial Rule 76(C)(3), we need not consider whether he was entitled to one. Interestingly, had Father been entitled to a change of judge to hear new evidence on remand, it is probable that the remanded issues and modification petition would have been consolidated and heard by Special Judge Morris.

      . If, as Father suggests, his second contempt petition stems from “circumstances that occurred after the issuance of the August 24, 2012 Order,” Appellant’s Br. p. 5, then Special Judge Morris should also rule on the second contempt petition.