author: CRONE, Judge.

text:
    Kelvin T. BROWN, Appellant-Plaintiff, v. INDIANAPOLIS HOUSING AGENCY, Appellee-Defendant.
    No. 49A05-1111-CT-648.
    Court of Appeals of Indiana.
    July 24, 2012.

      Kelvin T. Brown, Indianapolis, IN, Appellant Pro Se.
    Kathleen A. DeLaney, Amanda Couture, DeLaney & DeLaney, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Kelvin Brown was employed by the Indianapolis Housing Agency (“IHA”). After an investigation by an IHA officer, IHA concluded that Brown had been conducting personal business during work hours and terminated Brown’s employment. Thereafter, Brown was charged ■with ghost employment, official misconduct, and deception, but the charges were ultimately dismissed voluntarily by the prosecutor. Brown then sued IHA for malicious prosecution and intentional infliction of emotional distress. The trial court granted summary judgment for IHA.

We conclude that IHA had a qualified privilege to report Brown’s suspected criminal conduct. The designated evidence does not show that the privilege was abused, and the privilege bars Brown’s claim for both malicious prosecution and intentional infliction of emotional distress. Much of the same evidence also negates elements of Brown’s claims. Therefore, we affirm the judgment of the trial court.

Facts and Procedural History

In 1999, Brown began working for IHA as a Section 8 housing inspector. Brown’s job was to inspect properties that were receiving public funds to insure that the properties were in compliance with the Department of Housing and Urban Development’s housing quality standards. Inspectors spent most of their work day in the field. IHA provided inspectors with a car to use during work hours. Inspectors were not allowed to take the cars home at night or use them for personal business. In May 2002, IHA installed GPS devices in the cars.

In addition to being an inspector, Brown owned some rental properties, including one on Winthrop Street and one on South Harris Street in Indianapolis. These properties were not part of the Section 8 program and had nothing to do with Brown’s work for IHA.

IHA has its own police officers. Beginning in 2002, IHA officers were conducting an ongoing investigation into Section 8 inspectors. In 2004, a series of events occurred that led IHA to believe that Brown was conducting personal business related to his rental properties during work hours.

On June 7, 20Q4, Brown appeared in the Marion County Small Claims Court, located in the City-County Building, for a case relating to one of his rental properties. Brown submitted a form requesting leave dated June 8, 2004. Brown asserts that he wrote down the wrong date and actually submitted the form on or before June 7. His request was not granted by June 7, so he reported to work that day. During his lunch break, he drove to the 300 block of East Market Street. He quickly got something to eat and then walked to the City-County Building for his court hearing.

GPS data confirms that Brown’s car was stopped in the 300 block of East Market Street from 1:25 p.m. to 1:53 p.m., which is within the time frame that he was permitted to take a lunch break. IHA’s inspection log also shows that Brown conducted five inspections on June 7. Brown’s supervisor, Dorothy Henderson, approved Brown’s request for leave after the fact. Despite having actually worked on June 7, Brown stated on his time card that he was “Off’ that day. Appellee’s App. at 45.

Later, IHA received an anonymous tip that Brown had been in small claims court on June 29, 2004. Brown’s time card states that he worked from 8:00 a.m. to 12:00 p.m. and 1:00 p.m. to 5:00 p.m. that day. GPS data shows that he did not start driving his car until 9:39 a.m. He then drove to the area of his rental property on South Harris Street. IHA’s Inspection Status Report shows that no inspections were scheduled in that area. Brown asserts that IHA had an informal policy of conducting “drive-by” inspections to check on the exterior condition of Section 8 properties. He further claims that they were not required to make reports on drive-by inspections unless there was a problem. Brown claims that he was doing a drive-by inspection on South Harris Street that day and did not stop at his rental property.

In September 2004, IHA suspended Brown for five days. Based on the events of June 7 and 29, the IHA found that he had violated the following rules: failure to devote full attention to duties for the entire work period; abuse, misuse, or destruction of equipment, facilities, supplies, records, or funds; unauthorized use of equipment, facilities, supplies, records, or funds; leaving the work area during work hours without prior authorization from a supervisor; and making a false report or statement related to the job.

On October 25, 2004, Brown again had a hearing in small claims court. Brown signed in to work at 8:00 a.m. Henderson was not at work. Brown asserts that when Henderson was gone, Danitra Alexander was the acting supervisor. Brown claims that he asked Alexander for permission to go to court, that she gave her approval, and that she saw him place his request for leave on Henderson’s desk. Brown did not sign out when he left to attend his court hearing. Alexander confirmed that she remembered Brown asking for permission to attend court.

A few days later, Brown was terminated. The Corrective Action Form indicates that IHA found that his conduct on October 25 was in violation of the rules about devoting full attention to duties, leaving work, and making a false statement. Brown filed a union grievance on the ground that his discipline was not progressive. On November 24, 2004, the grievance was denied because Brown had previously been disciplined for similar misconduct.

IHA’s investigation of Brown culminated in a probable cause affidavit, which was written by Officer Stephen Golden. On January 6, 2005, Brown was charged in Marion Superior Court with ghost employment, official misconduct, and two counts of deception. The charges were based on allegations that he conducted personal business during work hours, used an IHA vehicle for personal reasons, and made false statements on his time cards. On December 15, 2006, the State filed a motion to dismiss the charges. The form filed by the prosecutor listed “evidentiary problems” as the reason for dismissal. Id. at 59. An affidavit by Mary Ann Fleet-wood, a deputy prosecutor who had been assigned to Brown’s case, says that the State “had every intention of prosecuting Kelvin Brown,” and that “as- a result of evidentiary issues, including the unavailability of essential witnesses,” the case was dismissed. Id. at 62.

On September 7, 2007, Brown sued IHA for malicious prosecution and intentional infliction of emotional distress. On April 11, 2011, IHA filed a motion for summary judgment, a brief in support, and designated evidence. Brown filed a response and designation of evidence on May 31, 2011. On July 15, 2011, the trial court granted summary judgment for IHA. Brown filed a motion to correct error, which the trial court denied. Brown now appeals.

Discussion and Decision

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).

Our standard of review is well settled:

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. 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. In doing so, we consider all of the designated evidence in the light most favorable to the non-moving party. The party appealing the grant of summary judgment has the burden of persuading this court that the trial court’s ruling was improper.

Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 683, 687 (Ind.Ct.App.2006) (citations omitted). “In reviewing a trial court’s ruling on a motion for summary judgment, we may affirm on any grounds supported by the Indiana Trial Rule 56 materials.” Kozlowski v. Lake Cnty. Plan Comm’n, 927 N.E.2d 404, 408 (Ind.Ct.App.2010), trans, denied.

IHA advances several reasons why summary judgment was appropriate, one of which we find to be dispositive of both Brown’s malicious prosecution claim and his intentional infliction of emotional distress claim: whether IHA had a qualified privilege to make a criminal complaint against Brown.

In Williams v. Tharp, our supreme court stated:

A qualified privilege “applies to communications made in good faith on any subject matter in which the party making the communication has an interest or in reference to which he had a duty, either public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty.”

914 N.E.2d 756, 762 (Ind.2009) (quoting Bals v. Verduzco, 600 N.E.2d 1353, 1356 (Ind.1992)). The court further noted that it is “well established that in Indiana, communications made to law enforcement to report criminal activity are qualifiedly privileged.” Id. (quoting Kelley v. Tanoos, 865 N.E.2d 593, 601 (Ind.2007)). The purpose of the privilege is to enhance public safety by facilitating the investigation of suspected criminal activity. Id. at 762-63. The defendant, here IHA, has the burden of showing that its statements fall within the privilege. Id. at 762. The plaintiff then has the burden of overcoming the privilege by showing that it has been abused. Id. “When speaking of abuse, ‘the essence of the concept is not the speaker’s spite but his abuse of the privileged occasion by going beyond the scope of the purposes for which privilege exists.’ ” Id. (quoting Holcomb v. Walter’s Dimmick Petroleum, Inc., 858 N.E.2d 103, 106 (Ind.2006)). The privilege has been abused if: “(1) the communicator was primarily motivated by ill will in making the statement; (2) there was excessive publication of the defamatory statements; or (3) the statement was made without belief or grounds for belief in its truth.” Id. at 763-64.

The privilege has been applied to claims of defamation, false imprisonment, intentional infliction of emotional distress, and negligence. Id. at 769. We conclude that the privilege also applies to malicious prosecution, which is analogous to the defamation claim at issue in Williams. In Williams, the plaintiffs, Sanford Kelsey and Thomas Williams, went to a Papa John’s restaurant to pick up an order. Kelsey was wearing a black fanny pack with silver reflective material, and he reached into the fanny pack to retrieve his wallet. Kelly Tharp, a Papa John’s employee, saw Kelsey reach for his waist and believed that he saw Kelsey pull out a gun. Tharp exited the building and told a passerby that someone inside had pulled out a gun. The passerby called the police, who detained Kelsey and Williams, but did not find a gun in their possession. Kelsey and Williams sued Papa John’s and Tharp for a variety of torts, including defamation. Our supreme court stated, “As a defense to defamation, the qualified privilege operates not to ‘change the actionable quality of the words published, but merely [to] rebut[] the inference of malice that is [otherwise] imputed.’ ” Id. at 762 (quoting Holcomb, 858 N.E.2d at 106).

Like the defamation claim in Williams, Brown’s malicious prosecution claim arises out of the reporting of suspected criminal conduct. As with defamation, malice is an element of malicious prosecution:

There are four elements of a malicious prosecution claim: (1) the defendant [in this case, IHA] instituted or caused to be instituted an action against the plaintiff [Brown]; (2) the defendant acted with malice in doing so; (3) the defendant had no probable cause to institute the action; and (4) the original action was terminated in the plaintiffs favor.

City of New Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind.2001). Malice may be inferred from a total lack of probable cause, the failure to make a reasonable or suitable inquiry, or a showing of personal animosity. Kroger Food Stores, Inc. v. Clark, 598 N.E.2d 1084, 1089 (Ind.Ct.App.1992). These grounds for inferring malice are similar to the grounds for finding that the privilege to report suspected criminal conduct has been abused. Therefore, we conclude that the privilege applies equally to Brown’s claim of malicious prosecution.

We turn then to whether the designated evidence raises a genuine issue of material fact regarding whether the privilege was abused. We conclude that it does not. Brown does not contend that there was excessive publication of his allegedly criminal conduct. As to ill will, Brown believes that IHA’s attorney, Pat Chavis, harbored ill will toward him because he “had complained about perceived nepotism involving ... Chavis.” Appellant’s Br. at 12. The probable cause affidavit does not mention Chavis. There is no indication that Officer Golden or the prosecutor conferred with Chavis. Brown’s assertion that Chavis would have been the only person with authority to initiate criminal charges against him is pure speculation.

Brown also argues that IHA harbors ill will against him because after he was terminated, he “sent an e-mail to the agency voicing his displeasure for being terminated and revealing unethical practices by management.” Id. In support, Brown cites a document that appears to be a taped statement that Officer Golden made to his attorney in the criminal case. Regarding the e-mail, Officer Golden states:

The only other thing that [I] didn’t include in that was a[n] email that was forwarded to me after he left, after Mr. Brown left his employment.... I didn’t include it in the evidence inventory[;] frankly it hurts him more than it helps him[. It’s] just a, lot of wild ramblings and allegations.

Appellee’s App. at 77. This evidence undermines rather than supports Brown’s argument. According to Officer Golden, the agency forwarded the e-mail to him to determine whether it should be part of his investigation, and Officer Golden decided not to include it even though he felt that it was damaging to Brown.

As to whether the report of alleged criminal conduct was made without belief or grounds for belief in its truth, our supreme court stated that “merely arguing about what the speaker should have known is insufficient to show that the speaker made a statement ‘without belief ... in its truth.’ ” Williams, 914 N.E.2d at 766 (quoting Bals, 600 N.E.2d at 1356). The privilege can be rebutted by showing that the speaker told “a deliberate lie.” Id. This may be proven circumstantially if there is an “absence of any discernible basis for the truth of the matter.” Id.

Brown asserts that “[i]n the instance of October 25, 2004 the probable cause affidavit stated that Mr. Brown never turned in a benefit leave slip[;] however it turns out that this evidence was withheld deliberately.” Appellant’s Br. at 10. In his brief, Brown quotes a lengthy passage purportedly from Alexander’s deposition in which she states that she placed the form on Henderson’s desk and saw her pick it up. Brown also references a taped statement given by Henderson in which she supposedly denied ever seeing the form. From this evidence, Brown infers that Henderson lied about receiving the form and withheld it from Officer Golden. Brown did not file an appendix. IHA did file an appendix, but it does not include a taped statement by Henderson or the portion of Alexander’s deposition that Brown relies on. The appellee’s appendix does include the probable cause affidavit completed by Officer Golden, which states, “Brown claimed to his supervisor, Dorothy Henderson, that he had left a benefit leave form on her desk prior to leaving. No such document was found, and any excuse from work must be approved in advance.” Appellee’s App. at 47. Thus, Officer Golden did not allege that Brown had not turned in a slip, but merely stated that the document had not been found; in other words, Brown’s contentions could not be confirmed.

Brown accuses Officer Golden of saying in his taped statement that “he felt that there was no need to speak with my supervisor or anybody in my department” and that it was not “important for him ... to investigate the allegations that he was making against me.” Appellee’s App. at 29, 31. A review of the transcript of the taped statement indicates that Officer Golden said no such thing. The pages to which Brown cites establish, at worst, that Officer Golden failed to elicit some information that might have supported Brown’s claim that some of the personal business was conducted during breaks that he was authorized to take. This evidence does not show that Officer Golden deliberately lied, was so obviously mistaken that he could not have believed that the statements in the probable cause affidavit were true, or failed to conduct a reasonable investigation.

The probable cause affidavit reflects that Officer Golden took the following steps in investigating Brown’s conduct: (1) reviewed GPS data from the vehicle that Brown drove for work; (2) researched Brown’s criminal record; (3) reviewed previous incidents that resulted in corrective administrative action against Brown; (4) confirmed that Brown had signed a form indicating that he had received the IHA employee policies and procedures manual; (5) confirmed that Brown had signed a form indicating his understanding that IHA vehicles were not to be used for personal purposes; (6) reviewed a complaint against Brown made via IHA’s fraud hotline; (7) confirmed that Brown had been in court on June 7, June 29, and October 25, 2004, by obtaining court records; (8) reviewed Brown’s timecards; (9) reviewed Section 8 inspection log reports to determine which properties he had inspected; (10) reviewed Section 8 inspection status reports to determine which properties Brown was assigned to inspect; (11) reviewed sign-in sheets; (12) attempted to locate the leave request form that Brown claimed that he left on Henderson’s desk; and (13) reviewed a complaint made against Brown via the Mayor’s Action Center. Brown does not appear to contest any of this evidence, but merely offers an alternative explanation for his conduct. That IHA did not reach the same conclusion about Brown’s conduct is insufficient to show that it abused the privilege for reporting suspected criminal conduct. Therefore, we conclude that the privilege bars Brown’s claims for malicious prosecution and intentional infliction of emotional distress.

For essentially the same reasons, Brown cannot establish the element of malice in his claim for malicious prosecution. Nor can he establish the elements of intentional infliction of emotional distress.

The elements of the tort are that the defendant: (1) engages in extreme and outrageous conduct (2) which intentionally or recklessly (3) causes (4)- severe emotional distress to another. The requirements to prove this tort are “rigorous.” We quoted the following comment from the Restatement with approval in Bradley v. Hall:
The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or by a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”
720 N.E.2d 747, 752-53 (Ind.Ct.App.1999) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)). IIED is found where conduct exceeds all bounds typically tolerated by a decent society and causes mental distress of a very serious kind.

Curry v. Whitaker; 943 N.E.2d 354, 361 (Ind.Ct.App.2011). We conclude that, as a matter of law, the designated evidence does not establish that IHA’s conduct rose to the level of extreme and outrageous. Therefore, we affirm the trial court’s grant of summary judgment for IHA.

Affirmed.

VAJDIK, J., and BRADFORD, J., concur.

      . IHA Officer Stephen Golden described the Section 8 program as follows:
      The Indianapolis Section 8 program is designed to help low income families rent apartments or homes in the private market in both Marion County Indiana and in a certain radius of the contiguous counties to Marion County. Under this program, HUD [Department of Housing and Urban Development] provides funds to IHA for rent subsidy on behalf of eligible families, pursuant to Section 8 of the United States Housing Act of 1937 (42 United States Code 1437f).
      Appellee’s App. at 42.


source: Caselaw Access Project

author: VAIDIK, Judge. ROBB, Chief Judge,

license: Public Domain

text:
    Denise A. MERTZ, n/k/a Denise A. Grimmer, Appellant-Petitioner, v. Robert G. MERTZ, Appellee-Respondent.
    No. 64A03-1108-DR-360.
    Court of Appeals of Indiana.
    July 26, 2012.

      Edward P. Grimmer, Austgen Kuiper & Associates, P.C., Crown Point, IN, Attorney for Appellant.
   OPINION

VAIDIK, Judge.

Case Summary

Denise (Mertz) Grimmer (“Mother”) and Robert Mertz (“Father”), who have two children, were divorced in 1994. Over the course of these proceedings, Father’s child support obligation has been modified many times, and due to arrearages, Father’s driving privileges were suspended. The most recent court order modified his weekly child-support obligation to what amounts to half of his income: $49 for support, $62 for educational expenses, and the remainder toward his arrearage. In addition, because Father agreed to pay one-half of his income toward these amounts, his driving privileges were reinstated. On appeal, Mother contends that the trial court erred in modifying his child-support obligation and in reinstating Father’s driving privileges. We conclude that the trial court did not err in modifying Father’s child-support obligation. We also conclude that Father’s plan to pay one-half of his income toward his support obligation was a sufficient plan to warrant reinstatement of his driving privileges. We affirm.

Facts and Procedural History

Father and Mother, the parents of two daughters, were divorced in 1994. In the years following their divorce, the parties have litigated various post-dissolution matters. Before this most recent trip to court, an order from 2005 required that Father pay $272.27 per week in child support, which included $86.47 in post-secondary educational expenses for the parties’ oldest daughter, S.M. See Appellant’s App. p. 111. When she graduated from college in late 2008, the parties informally agreed—though never memorialized by court order—that Father would no longer pay the $36.47 educational expense.

In the time period between entry of the 2005 order and the filing of the petitions underlying the current order, Father was found in contempt for failure to pay child support on at least two occasions, was jailed twice, and had criminal charges filed against him for failure to pay child support. In November 2008, Father’s driving privileges were suspended pursuant to Indiana Code section 31-16-12-7 due to his failure to pay support.

In early 2010, Father filed a petition to emancipate the parties’ youngest daughter, J.M. Father later amended this petition to seek emancipation or in the alternative to modify his child-support obligation and redirect support payments to J.M. because she was no longer living with Mother. Father also filed a petition for reinstatement of his driving privileges. Mother filed a motion to determine Father’s arrearage and a motion to modify support to include college expenses for J.M. A summary hearing on all pending motions was held in October 2010. Counsel summarized the testimony of their clients and introduced supporting exhibits. At the opening of the hearing, Father’s counsel indicated that Father did not intend to pursue the emancipation petition, but he still wanted the trial court to consider ordering support paid directly to J.M. Counsel also detailed Father’s recent financial difficulties and decrease in income from past years. Finally, counsel set forth Father’s proposed plan for meeting his child-support obligation; specifically, that Father, who was working two jobs in Florida and making approximately $575 per week, intended to pay one-half of his income toward his obligation. Counsel for Mother argued that Father should be required to pay educational support for J.M. and that Father was not entitled to a modification of support because he did not keep sufficient records of his income and had a history of underreporting that income.

In March 2011, the trial court entered findings and conclusions. In its findings, the court discussed Father’s financial history in detail:

13. The Court finds [F]ather claims his earnings in 2008 were $25,171.48 and in 2009 were $2,016.00.
⅜ ⅝ ¾: # ⅝ ⅜
18. The Court finds [Fjather is currently working two jobs in Florida, one with U-Haul and the other with Air Wisconsin. His current average weekly gross income determined by averaging the income from the two jobs is $575.00. The Court finds [Mjother’s current weekly gross income is $524.00.
19. In 2005, [Fjather claimed his income to be $70,000.00 per year. In the Court’s August 5, 2005 Order the Court determined [Fjather had an earning capacity of $90,000.00/$91,000.00 and imputed [Fjather’s income at $91,000.00 per year and $1,752.25 weekly.
20. Since 2005 [Fjather’s income has been significantly reduced. [Fjather is still plagued by the same issue as noted in the Court’s previous Orders ... Father’s record keeping remains suspect for all the reasons previously stated in those Orders.
21. The Court finds [Fjather admitted that he did not file a tax return in 2008, even though he had earnings including his self-employment in Florida, and he had self-employment income in 2009. He did not report any of that income to the IRS because he did not keep records and did not know how much to report.
22.The Court finds that [Fjather’s pattern of unreliability continues despite all the previous warnings. [Fjather’s recent efforts to pay child support have improved. He appears to be motivated by his jail time and present charges. Even with this pending over his head the economy continues to be an obstacle to his ability to work. [Mjother provided several support worksheets suggesting [Fjather’s income range to be $1,040.00/$1,060.00 per week. Based on [Fjather’s employment skills and abilities, taking into account the economy and specifically the construction industry the Court imputes [Fjather’s income at $1,000.00 per week.

Id. at 32-33. The court estimated Father’s arrearage at more than $100,000 plus interest and medical fees owed to Mother. Id. at 34. The court then proceeded to the issue of driving privileges, noting that in order to reinstate Father’s driving privileges, it “must find that [Fja-ther has a plan in place to repay the arrearage and that income[-jwithholding orders are implemented.” Id. The court concluded that Father had established such a plan:

28. The Court finds that [Fjather has been paying support through an Income[-]Withholding Order since February 4, 2010 from U-Haul and since April 27, 2010 from Air Wisconsin. Father intends to maintain both positions and continue to pay ½ of his income toward support and arrearage.
29. The Court finds [Fjather has met the criteria of [IC] 31-16-12-11 and his driver’s license shall be reinstated instanter, subject to continuously having Income[-]Withholding Orders active.

Id. The court then considered the issue of Father’s support obligation, noting that Father’s obligation was last modified in 2005 when his imputed gross weekly income was $1752.25, or $91,000 per year. Id. at 36-87. Father then experienced a steep decline in income, making only $25,171.48 in 2008 and $2016 in 2009. Based on this, the court imputed income of $1000 per week to Father and granted his petition to modify support:

CONCLUSIONS OF LAW
1. The Court finds that IC [31-16-8-1] requires a showing of changed circumstances so substantial and continuing to make the terms of the current Order unreasonable; or a twenty percent difference in the amount that would be paid, and it must have been more than one year since the child support had last been modified. This case meets this criteria and child support should be modified.
⅜ ⅝ ⅜ ⅝ ⅜ ⅜
6. The Court finds that [FJather’s Petition to Modify Support is granted. Father has shown that there is substantial change in circumstances that makes the present terms unreasonable and that [FJather has been Ordered to pay' an amount in child support that differs by more than 20%.
7. Pursuant to the attached Child Support Obligation Worksheet ... [FJa-ther’s gross income is $1,000.00 per week. Mother’s gross income is $524.00. Mother is given credit for health insurance costs of $17.00. Child support is set at $49.00 per week which is consistent with the Indiana Child Support Obligation Worksheet....
8. The Court is able to discern enough to know that [FJather’s arrear-ages will be well over $100,000.00 not including fees, attorney fees, interest an[d] medical costs. So as not to delay this case any longer, from each pay check, shall be deducted $49.00 current support; $62.00 educational expenses with the remaining amount toward ar-rearages. In order to have his driver’s license reinstated, [FJather has agreed to pay ½ of his wages of his income toward these amounts.

Id. at 36, 37-38. Finally, the court granted Mother’s petition as to educational expenses for J.M. and ordered Father to continue to pay half of his income through income-withholding orders, to be applied to his current support obligation, college expenses, and arrearage. Mother filed a motion to correct error, which was denied. She now appeals.

Discussion and Decision

At the outset, we note that Father did not file an appellee’s brief. Under that circumstance, we do not undertake to develop the appellee’s arguments. Branham v. Varble, 952 N.E.2d 744, 746 (Ind.2011). Rather, we will reverse upon an appellant’s prima facie showing of reversible error. Id.

Here, the trial court entered findings of fact and conclusions thereon. As a result, we apply a two-tiered standard of review. First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. Carpenter v. Carpenter, 891 N.E.2d 587, 592 (Ind.Ct.App.2008). We will set aside the trial court’s findings only if they are clearly erroneous—that is, “when a review of the record leaves us firmly convinced that a mistake has been made.” Id. (quotation omitted). “Although we defer to a trial court’s ability to find the facts, we do not defer to conclusions of law, and a judgment is clearly erroneous if it relies on an incorrect legal standard.” Id. (quotation omitted).

I. Modification of Child Support

Mother first contends that the trial court erred by modifying Father’s child-support obligation. In reviewing a decision regarding a petition to modify child support, we will reverse if there is a showing that the trial court abused its discretion. Meredith v. Meredith, 854 N.E.2d 942, 947 (Ind.Ct.App.2006). We consider the evidence most favorable to the judgment without reweighing the evidence or judging the credibility of the witnesses. Id. An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances that were before the trial court, including any reasonable inferences to be drawn therefrom. Id.

Indiana Code section 31-16-8-1 provides that modification of a child-support order may be made only:

(1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or
(2) upon a showing that:
(A) a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and
(B) the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed.

Ind.Code § 31—16—8—1 (b). Mother contends the trial court erred in finding a substantial change in Father’s income warranting modification of child support because Father should not “be rewarded by any reduction in the amount that was found in 2005 to be his earning capacity” because he has continued to conceal income, as the trial court acknowledged when it found Father was “still plagued by the same issues as noted in the Court’s previous Orders” and that his “pattern of unreliability continues despite all the previous warnings.” Appellant’s Br. p. 29.

Father introduced into evidence a child-support worksheet asserting his weekly gross income to be $575, a significant decrease from the approximately $1750 per week imputed in 2005. Mother pointed out that courts have found throughout these proceedings that Father has historically “engage[d] in self-employment, doesn’t keep records, and underutilize[d] his earning capacities,” Tr. p. 47, and asserted that he continued in 2009 and 2010 to have a landscape business for which he kept no records. Mother also asserted Father lived rent-free with his significant other. Mother therefore contended Father should continue to have imputed income and cannot show a substantial change in circumstances.

The trial court did not disagree with Mother that Father should be imputed income due to his undocumented self-employment. However, “taking into account the economy” which “continues to be an obstacle to his ability to work,” Appellant’s App. p. 33, the trial court found that Father’s imputed income should be decreased to $1000 per week. In determining parents’ income for child-support calculations, “the definition of ‘weekly gross income’ is broadly defined to include not only actual income from employment, but also potential income and imputed income from ‘in-kind’ benefits.” Knisely v. Forte, 875 N.E.2d 335, 340 (Ind.Ct.App.2007) (citation omitted). Irregular income is a very fact-sensitive determination. Id. “Potential income is determined from work history, occupational qualifications, prevailing job opportunities, and earning levels in the community.” Elliott v. Elliott, 634 N.E.2d 1345, 1349 (Ind.Ct.App.1994). Further, “regular and continuing payments made by a family member, subsequent spouse, roommate or live-in friend that reduce the parent’s costs for rent, utilities, or groceries, should be the basis for imputing income.” Child Supp. G. 3(A) Commentary 2(e); see Glass v. Oeder, 716 N.E.2d 413, 417 (Ind.1999) (holding that father’s rent-free living arrangement was a proper basis for imputing income). In short, the trial court properly imputed income to Father over and above what he showed as wages from his two jobs due to his unreported self-employment income.

In the absence of concrete information in the record from which to determine Father’s potential income, we consider that five years have passed since the last determination of Father’s income and, as the trial court did, acknowledge the effects of the economy on Father’s employment opportunities. We also note that Father’s verifiable income has decreased steadily since 2000. In previous orders, the trial court determined Father’s income by adding his verified income to an additional imputed amount. The fact that the trial court again found that Father’s “unreliability” in reporting his income warranted imputation of income does not require that the court impute to Father the same level of income as five years before. It was within the trial court’s discretion to reevaluate Father’s financial resources— both actual and potential—when requested. In this regard, we note, as the trial court did, that the child-support worksheet Mother submitted to the trial court with her proposed findings and order showed Father’s income as $1040 per week, which is not appreciably different from the $1000 per week the trial court imputed to Father. We cannot say that the trial court abused its discretion in assessing Father’s income when considering the record before us. Given that Father’s income is approximately half what it was at the time of the last order, modification of child support based upon the new figure does not amount to reversible error.

II. Reinstatement of Father’s Driving Privileges

Mother also contends that the trial court erred in reinstating Father’s driving privileges. Indiana Code section 31—16— 12-7 provides in relevant part:

If a court finds that a person is delinquent ... as a result of an intentional violation of an order for support, the court shall issue an order to the bureau of motor vehicles:
(1) stating that the person is delinquent; and
(2) ordering the following:
(A) If the person who is the subject of the order holds a driving license or permit on the date of issuance of the order, that the driving privileges of the person be suspended until further order of the court.

A person is considered delinquent if he or she is at least $2000 or three months past due on payment of court-ordered child support. Ind.Code § 31-25-4-2. There appears to be no dispute that in November 2008, the trial court had properly issued an order to the Bureau of Motor Vehicles to suspend Father’s driving privileges pursuant to Indiana Code section 31-16-12-7.

Father subsequently requested that his driving privileges be reinstated pursuant to Indiana Code section 31-16-12-11, which provides:

Notwithstanding section 7 ... of this chapter, the court may stay the issuance of an order under section 7 ... if:
(1) the person pays the child support arrearage in full; or
(2) an income withholding order under IC 31-16-15 ... is implemented and a payment plan to pay the arrear-age is established.

In arguing that his driving privileges should be reinstated, Father informed the trial court that income-withholding orders were in place for each of his two jobs and that he would pay one-half of his income toward child support, educational expenses, and his arrearage. The trial court noted that in order to reinstate Father’s driving privileges, it was required to find that there was “a plan in place to repay the arrearage and that income[-]withholding orders are implemented.” Appellant’s App. p. 34. Finding that Father had been paying support through income-withholding orders for several months from his two jobs and that he “intends to maintain both positions and continue to pay ½ of his income toward support and arrearage[,]” id, the court concluded that Father had satisfied the statutory requirements and that his driving privileges should be reinstated.

On appeal, Mother contends the trial court’s construction of Indiana Code section 31-16-12-11 to allow reinstatement of Father’s driving privileges is contrary to the plain language of the statute. She notes that license suspension is mandatory upon a finding of delinquency; thus, she argues that the legislature intended to impose a serious sanction on a delinquent obligor, and only a plan that is reasonably calculated to remedy the arrearage in full should be considered sufficient to lift the sanction. We have found no cases considering these statutes.

Interpretation of a statute is a question of law which we review de novo. In re Guardianship of E.N., 877 N.E.2d 795, 798 (Ind.2007). We first examine whether the language of the statute is clear and unambiguous. City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind.2007). If it is, we will not apply any rules of construction other than to require that words and phrases be given their plain, ordinary, and usual meanings. Id. However, when a statute is susceptible to more than one interpretation, it is deemed ambiguous and open to judicial construction. Id. It is a well-established rule of statutory construction that we will attempt to determine and give effect to the intent of the legislature, and, to that end, we read provisions of a statute together so that no part is rendered meaningless if it can be harmonized with the remainder of the statute. Id. We presume that a statute was to be applied in a logical manner. See State v. Hensley, 716 N.E.2d 71, 76 (Ind.Ct.App.1999), trans. denied.

We conclude that the language of Section 31-16-12-11 is clear and unambiguous. It requires that an obligor establish “a payment plan to pay the arrearage.” It does not impose any constraints upon that plan. We therefore conclude that the sufficiency of a plan offered by an obligor is best determined by a trial court, which is well-versed in the specific facts of a case. Here, the court concluded that Father’s plan to pay one-half his income toward his obligation was sufficient, and we agree.

We recognize that Father’s arrearage is substantial—the trial court estimated Father to be at least $100,000.00 in arrears. Clearly, paying this arrearage in full will take many years, a fact the trial court acknowledged. However, the court also acknowledged that if Father is able to drive, the likelihood that he will continue to meet his support obligation increases. The trial court’s ultimate decision to reinstate Father’s driving privileges is in line with public policy. Our goal should be to ensure that an obligor meets his or her obligation and at times, the courts hold the key to incentivize—rather than discourage—continued employment to meet those obligations. Our Supreme Court has recognized that there may be a tipping point at which an obligor has no incentive to fulfill his or her support obligations. See Lambert v. Lambert, 861 N.E.2d 1176, 1181 (Ind.2007) (noting that obligors may view certain methods of collecting support, such as high maximum garnishment rates, as disincentives to seek legitimate gainful employment). Here, the trial court concluded that Father had established a plan to pay his arrearage and that reinstatement of his driving privileges made it more likely that Father would continue to meet his obligation. We conclude that the trial court did not err by reinstating Father’s driving privileges.

Affirmed.

NAJAM, J., concurs.

ROBB, C.J., concurs in part and dissents in part with separate opinion.

ROBB, Chief Judge,

concurring in part and dissenting in part.

I concur with the majority that the trial court did not err in modifying Father’s child support obligation as discussed in Part I, but respectfully dissent from its conclusion in Part II that the trial court did not err in reinstating Father’s driving privileges.

I agree with the majority that the language of section 31-16-12-11 is clear and unambiguous. Accordingly, deciding whether Father’s driving privileges could be reinstated is a question of law. It is not a question of weighing the evidence, but strictly a determination of whether the outcome is consistent with the legislative mandate. In order to have driving privileges reinstated, the statute requires as a matter of law that the obligor either pay the arrearage in full or establish a payment plan to pay the arrearage via income withholding order. Given that the two alternatives for reinstatement are to pay in full or establish a payment plan to pay, the “plain, ordinary, and usual meaning” of “a payment plan to pay the arrearage” is a plan that will pay the arrearage in full, not simply pay toward or pay down the arrear-age. See State v. Am. Family Voices, Inc., 898 N.E.2d 293, 297 (Ind.2008) (stating that if the statutory language is clear and unambiguous, “we need not apply any rules of construction other than to require that words and phrases be given their plain, ordinary, and usual meanings.”).

Father’s proposed payment plan is to pay fifty percent of his income via income withholding order toward his current child support obligation, educational expenses, and his arrearage. It is important to note that Father is not proposing to pay fifty percent of his income toward his arrear-age; rather, he is proposing to pay his current child support obligation—set at $49.00 per week; his share of educational expenses—set at $62.00 per week; and then whatever amount brings the total withholding to fifty percent of his income toward his arrearage. Reviewing Father’s child support payment history through the Porter County Clerk’s Office for the five months prior to the hearing on this matter shows that Father had paid just under $5,000.00 in that time, or an average of approximately $250.00 per week. Deducting his current child support and educational expense obligations from this amount yields approximately $140.00 per week to be applied toward his arrearage. Based on the evidence presented at the hearing, the trial court was not able to determine the actual amount of Father’s arrearage, but both parties seem to agree with the trial court’s assessment that his arrearage is in excess of $100,000.00. Statutory interest alone on this amount would exceed $140.00 per week.

Although the statute gives the trial court discretion in reinstating an obligor’s driving privileges, see Ind.Code § 31-16-12-11 (“the court may stay the issuance of [a suspension] order”) (emphasis added), I do not believe the statute gives the trial court the discretion to reinstate Father’s driving privileges under the circumstances of this case. Although there is nothing wrong with Father’s plan per se, it is not as a matter of law a “payment plan to pay the arrearage.” In fact, it will barely make a dent in the arrearage, if at all. Thus, although Father is certainly entitled to propose paying only fifty-percent of his income toward his child support obligations (past and present) and the trial court may be entitled to accept that proposal, I do not believe the trial court is also entitled to reinstate his driving privileges based upon such a proposal. Unfortunately, given the substantial amount of Father’s arrearage, even a proposal to pay 100 percent of his income might not amount to a “plan to pay the arrearage.” As such a proposal would be both unreasonable and contrary to law, however, I believe the trial court could exercise its discretion in this case and reinstate Father’s driving privileges only if Father established a plan to pay the maximum amount allowed by law, or sixty-five percent of his income. See 15 U.S.C. § 1673(b)(2). Nothing more can be legally required of him, but anything less under the circumstances of this case is contrary to the statutory language that “a payment plan to pay the arrearage” be established before the trial court may reinstate previously-suspended driving privileges.

I take into account that after many years of failing to meet his obligations, Father appears to be taking responsibility for financially supporting his children and I do not wish to discourage him from continuing to do so. However, there is no “tipping point” exception to the dictates of the statute. See Op. at 196. In other words, I do not believe the trial court’s discretion extends so far as rewarding something less than a plan to pay the arrearage with the reinstatement of driving privileges based solely on the determination that reinstatement will make it more likely Father will comply with a plan that does not meet the requirements of the statute in the first instance.

The statute requires “a payment plan to pay the arrearage” be established in order for the trial court to reinstate Father’s driving privileges. As Father’s plan will neither pay his arrearage nor does it require him to pay the maximum amount allowed by law, I would hold the trial court clearly erred in reinstating Father’s driving privileges. Accordingly, I dissent from Part II of the majority decision.

      . Mother argues that because the trial court held a summary hearing, our standard of review with respect to this issue is de novo. Even if we were to employ de novo review, See GKN Co. v. Magness, 744 N.E.2d 397, 400 (Ind.2001) (considering a ruling on a Trial Rule 12(B) motion), we would nonetheless conclude that modification of Father’s child-support obligation was proper.

      . Mother also contends the trial court erred in ”review[ing] the entire case history and ... not confining] itself to the record as -the two advocates had presented the evidence....” Appellant's Br. p. 41. Mother references a part of the trial court's order in which it stated that it had taken judicial notice of the entire file. See Appellant’s App. p. 31. The trial judge who heard the instant motions was a special judge, following two judges in Hamilton County and two judges in Porter County and proceedings spanning approximately fifteen years. See id. Indiana Evidence Rule 201 provides that a court may take judicial notice of law, including records of a court of this state, whether requested or not, and at any stage of the proceedings. Ind. Evid. R. 201(b), (c), (f). Here, the trial court was not taking judicial notice of the records of "a” court of this state, but of its own records of which the parties to the case were well aware. This was not error.

      . These were Father’s arguments at the hearing in support of reinstatement; the actual petition for reinstatement is not included in the appellate record.


author: VAIDIK, Judge.

text:
    J. Michael KUMMERER, Appellant-Defendant, v. C. Richard MARSHALL, Appellee-Plaintiff.
    No. 03A01-1201-CT-33.
    Court of Appeals of Indiana.
    July 26, 2012.
    Rehearing Denied Sept. 27, 2012.

      J. Michael Kummerer, Nashville, IN, Appellant Pro Se.
    John A. Stroh, Sharpnack, Bigley, Stroh & Washburn, LLP, Columbus, IN, Attorney for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

J. Michael Kummerer appeals the trial court’s failure to award him prejudgment interest and its failure to grant his motion to correct errors. He contends that the decision to deny him prejudgment interest was contrary to law because contract damages could be determined by simple mathematical calculations. He also contends that the trial court abused its discretion in denying his motion to correct errors because the trial court did not make any findings of fact about whether damages were able to be determined by simple calculations before denying him prejudgment interest. Finding that prejudgment interest was not appropriate in this case because the trial court had to exercise its judgment in calculating damages, we affirm the trial court.

Facts and Procedural History

On April 11, 2007, Kummerer, an attorney, was arrested and charged with possession of cocaine and aiding, inducing, or causing dealing in cocaine. As a result, he was subject to a six-month disciplinary suspension from the practice of law and was required to transfer his open cases. Kummerer contracted with C. Richard Marshall before the effective date of his suspension to transfer to him all of his contingency-fee cases under the agreement that the parties would share equally in any fee recovered without a trial. Appellant’s App. p. 25.

Marshall accepted four of Kummerer’s cases; he settled three of them before trial and split the fee equally in those cases. The fourth case settled during mediation for $750,000.00. The parties agreed to a compromised fee with the client of $275,000.00. Marshall paid himself $125,000.00 of that fee and an additional $12,500.00 two weeks later.

After settlement, Marshall proposed a different contract fee split for the fourth case—10% to Kummerer and 90% to Marshall. Marshall argued that paying Kum-merer 50% of the fee would violate the proportionality provision of Rule 1.5 of the Rules of Professional Conduct that requires that a contingent fee division must be based on the apportionment of work actually done by each lawyer. Marshall argued that since he had done almost all of the work on the case, he should receive almost all the fee. Id. at 27. Marshall threatened suit under this proportionality rule if Kummerer did not renegotiate the contract. Id. Kummerer continued to demand payment of his equal share of the fee.

Marshall filed a complaint against Kum-merer, alleging that he had been defrauded; he claimed Kummerer made a statement during negotiations that he had done “considerable,” “significant,” or “a lot” of work in the assigned case. Id. at 30. Marshall argued that this was an intentionally made false representation of fact that induced him to accept the case. Kum-merer then made a request for findings of facts and conclusions of law. Meanwhile, Marshall moved to have the contested amount of $137,500.00 deposited with the Clerk of Bartholomew County so that it could earn interest. Id. at 19. Kummerer objected, and the trial court took the matter under advisement, but the funds were never deposited with the Clerk. Id. at 23-26, 28.

In making its findings of fact and entering its judgment based on those findings, the trial court found that there was no fraud present, and even if there were, Marshall’s delay in acting equitably es-topped him from bringing suit. Id. at 15. The trial court further specifically found that Kummerer’s work on the case “justified the contract,” id. at 17; it “was as represented in his Affidavit in this case and ... was both adequate and appropriate.” Id. at 19. The trial court found that under Rule 1.5 of the Rules of Professional Conduct that the contract between the parties was a forecast allocation of fees, meaning that it must “reasonably forecast[ ] the amount and value of effort that each would expend.” Id. at 16. After reviewing the work that Kummerer had completed before the contract was signed, the trial court found that the equal fee split was a reasonable forecast of the work that each attorney would perform on the case. Id.

Judgment was entered for Kummerer in the amount of $137,500.00, one-half of the recovered fee for the case, as was indicated in the contract and warranted by Rule 1.5 of the Rules of Professional Conduct. Id. at 23. However, the trial court denied any prejudgment interest on the recovered fee, as requested by Kummerer. Id. Kum-merer filed a motion to correct errors, alleging that the trial court needed to make special findings regarding whether the contract damages were determined by simple mathematical calculations when making its decision to deny prejudgment interest; the trial court denied the motion.

Kummerer now appeals.

Discussion and Decision

Kummerer raises two issues on appeal: (1) whether the trial court’s denial of prejudgment interest is contrary to law and (2) whether the trial court abused its discretion in denying his motion to correct errors.

I. Prejudgment Interest

Kummerer contends that the trial court’s decision to deny him prejudgment interest is contrary to law. We disagree.

Since Kummerer did not prevail in receiving prejudgment interest at trial, he is appealing from a negative judgment. When a party appeals from a negative judgment, it must demonstrate that the trial court’s decision is contrary to law; that is, the evidence points unerringly to a conclusion different from that reached by the trial court. Hopper Res., Inc. v. Webster, 878 N.E.2d 418, 422 (Ind.Ct.App.2007) (citing Bennett v. Broderick, 858 N.E.2d 1044, 1048 (Ind.Ct.App.2006), trans. denied), reh’g denied, trans. denied.

Prejudgment interest is appropriate in a breach of contract action when “the amount of the claim rests upon a simple calculation and the terms of the contract make such a claim ascertainable.” Olcott Int’l & Co. v. Micro Data Base Sys., Inc., 793 N.E.2d 1063, 1078 (Ind.Ct.App.2003), trans. denied. The award of prejudgment interest is considered proper when the trier of fact does not have to exercise judgment in order to assess the amount of damages. Town of New Ross v. Ferretti, 815 N.E.2d 162, 170 (Ind.Ct.App.2004) (citing Noble Roman’s, Inc. v. Ward, 760 N.E.2d 1132, 1140 (Ind.Ct.App.2002)). Examples of such cases where prejudgment interest is appropriate include those for breach of contract when the damages were principal payments made under a promissory note, Tracy v. Morell, 948 N.E.2d 855, 867 (Ind.Ct.App.2011), the amount of a mechanics’ lien for a contractor’s unpaid bills for a remodeling project, Hayes v. Chapman, 894 N.E.2d 1047, 1054-55 (Ind.Ct.App.2008), trans. denied, and an amount stipulated to at a damages hearing, Noble Roman’s, Inc., 760 N.E.2d at 1140. In all of these cases, the amount of damages was clear and did not require any interpretation or judgment on the part of the trier of fact.

However, in this case, attorneys’ fees were at issue, a monetary amount that is governed by Rule 1.5 of the Rules of Professional Conduct and requires a reasonableness determination. Rule 1.5 states in relevant part:

(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
(e) A division of a fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
(2) the client agrees to the agreement, including the share each lawyer will receive, and the agreement is confirmed in writing; and
(3) the total fee is reasonable.

Therefore, under Rule 1.5 there are two different ways that a fee division is permissible between lawyers who are not in the same firm; either the fee is divided based on services performed or each lawyer assumes joint responsibility, meaning each can be held liable in a malpractice suit. If the fee is divided based on the services performed, the division must be reasonable, and the factors that are considered when determining reasonableness are outlined in Rule 1.5(a). Additionally, if attorneys decide to divide the fee based on services performed, there are two ways in which they may do so: (1) reasonably forecasting the amount of work each will do at the outset and allocating the fee at the beginning of the representation and (2) splitting the fee after work on the case has finished to reasonably correspond to the amount of work each attorney has performed. See Restatement (Third) of Law Governing Lawyers (2000) § 47(c).

In this case, Kummerer and Marshall had a contract that allocated the fee between the two attorneys at the beginning of the representation. The trial court had to determine whether the two attorneys’ forecast of the amount of work each would do was reasonable. This determination could not be made by looking at the face of the contract; rather, the trial judge had to consider the eight factors outlined in Rule 1.5(a) to determine whether the equal fee split outlined in this contract was reasonable. Although the court ultimately found that the forecast was reasonable, that determination necessarily involved the court’s judgment in order to assess the damages. As a result, the trial court did not err in refusing to grant prejudgment interest.

Additionally, Indiana Code section 24-4.6-1-103, which governs prejudgment interest in contract cases, states that “[i]n-terest at the rate of eight percent (8%) per annum shall be allowed: ... (b) ... for money had and received for the use of another and retained without his consent.” (emphasis added). Here, however, the money was not retained without Kummerer’s consent. By objecting to the money being placed in an account at the Bartholomew County Clerk’s Office, Kummerer was consenting to Marshall retaining the money and placing it in his own IOLTA account. Kummerer had the opportunity to have the money placed in a third party’s interest-bearing account but chose not to. Therefore, Marshall kept the money with Kummerer’s consent, rendering Indiana Code section 24-4.6-1-103 inapplicable in this case.

The trial court’s denial of prejudgment interest was therefore not contrary to law.

II. Motion to Correct Errors

Kummerer also contends that the trial court abused its discretion in denying his motion to correct errors when the trial court failed to make special findings of fact in support of its denial of prejudgment interest. A trial court has considerable discretion to grant or deny motions to correct error. Young v. Ind. Dep’t of Natural Res., 789 N.E.2d 550, 554 (Ind.Ct. App.2003), trans. denied. We review the trial court’s ruling on a motion to correct errors for an abuse of discretion. Id.

Kummerer filed his motion to correct errors, claiming the trial court committed reversible error by failing to make Trial Rule 52 findings of facts when making its ruling denying prejudgment interest. Trial Rule 52 states in relevant part:

(A) In the case of issues tried upon the facts without a jury ... [u]pon its own motion, or the written request of any party filed with the court prior to the admission of evidence, the court ... shall find the facts specially and state its conclusions thereon.

Kummerer made a request for findings of facts and conclusions of law, and the trial court made its findings and entered its judgment based on those findings. Kum-merer contends, however, that the trial court’s only finding regarding prejudgment interest was: “Prejudgment interest is hereby denied.” Appellant’s App. p. 23. He argues that in order to reach that conclusion, the trial court needed to make special findings regarding whether the contract damages were determined by simple mathematical calculations. Appellant’s Br. p. 15. We disagree.

In the findings of fact, the trial court found that the parties decided to engage in a “forecast allocation” of the attorneys’ fee. Appellant’s App. p. 17. The trial court also specifically found that Kummerer’s “work on the file was as represented in his Affidavit in this case and ... was both adequate and appropriate,” id. at 19, and that “the contract has been found to be proportional based on the parties’ reasonable forecast division of the fee under § 47 of the Restatement Third.” Id. at 22. Therefore, the trial court did make specific findings of fact that the fee division was reasonable under Rule 1.5 for the circumstances of this case.

Because of these findings, it is clear that the trial court exercised its judgment in determining damages and that the calculations of those damages were not merely a simple mathematical evaluation. The findings of fact made by the trial court were therefore sufficient to support its denial of prejudgment interest.

The trial court did not err in denying Kummerer’s motion to correct errors.

Affirmed.

CRONE, J., and BRADFORD, J., concur.


author: NAJAM, Judge.

text:
    Phillip L. WHITE, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 18A05-1201-PC-1.
    Court of Appeals of Indiana.
    July 27, 2012.

      Stephen T. Owens, Public Defender of Indiana, J. Michael Sauer, Deputy Public Defender, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Phillip L. White appeals the post-conviction court’s denial of his petition for post-conviction relief. White raises a single issue for our review, namely, whether he received ineffective assistance from his appellate counsel when his appellate counsel did not raise as an issue on direct appeal whether White’s conviction for felony murder was unconstitutional under Article I, Section 16 of the Indiana Constitution (“the Proportionality Clause”). We affirm.

FACTS AND PROCEDURAL HISTORY

The facts underlying White’s convictions were stated by this court in his direct appeal:

The following are the facts most favorable to the verdict. During the evening of July 31, 2004, White was driving a pickup truck in which Shon Starks (“Starks”) and Lionel McElroy (“McEl-roy”) were passengers. As they traveled on Hackley Street in Muncie, two men flagged down the truck. One of the men, later identified as Ryan Ylovchan (‘Ylovchan”), approached the truck and indicated that he “wanted to buy a half.” Ylovchan took out his wallet and held it at the windowsill of the driver’s side of the truck.
White made some movements as if he were breaking off a piece of crack cocaine. He then grabbed Ylovchan’s wallet and began to drive away slowly. Ylovchan held onto the truck, but soon fell off. The truck “bounced” and Starks looked back to see Ylovchan lying in the street. Starks told White, “you hit that guy.” White did not stop the truck.
Bystanders who saw the truck tire run over Ylovchan summoned 9-1-1 assistance and Ylovchan was transported to Ball Memorial Hospital in Muncie. He had severe brain injuries and a skull fracture. Ylovchan underwent surgery, but never regained consciousness. On August 8, 2004, Ylovchan was taken off life support and died.
On June 6, 2005, White was charged with Murder[, a felony,] and Robbery[, as a Class A felony]. He was brought to trial on April 28, 2006[,] and convicted as charged. On July 17, 2006, the trial court sentenced White to fifty-five years imprisonment on the Murder conviction ....

White v. State, No. 18A02-0607-CR-604, at *1, 2007 WL 2199228 (Ind.Ct.App. Aug. 2, 2007) (citations to the record omitted), trans. denied. We also noted that the trial court did not enter judgment of conviction on the jury’s verdict for robbery, as a Class A felony, out of double jeopardy concerns. Id. at *1 n. 2; see also Richardson v. State, 717 N.E.2d 32, 52 n. 45 (Ind.1999) (“the Indiana Double Jeopardy Clause would be violated under th[e] essential elements test when, for example, a defendant is convicted and sentenced for both robbery and felony murder based on the killing of the [victim] in the course of the robbery.”).

On direct appeal, White’s appellate counsel argued that White’s confession was not admissible and that the State failed to present sufficient evidence to support the felony murder conviction. After addressing these arguments, we affirmed White’s conviction.

On November 5, 2008, White filed his petition for post-conviction relief, which he later amended. The post-conviction court held an evidentiary hearing on August 16, 2011. On December 7th, the court denied White’s petition. This appeal ensued.

DISCUSSION AND DECISION

Standard of Review

White appeals the post-conviction court’s denial of his petition for post-conviction relief. As we have explained:

[The petitioner] bore the burden of establishing the grounds for postconviction relief by a preponderance of the evidence. See Ind. Post-Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d 591, 597 (Ind.2001). Post-conviction procedures do not afford a petitioner with a super-appeal, and not all issues are available. Timberlake, 753 N.E.2d at 597. Rather, subsequent collateral challenges to convictions must be based on grounds enumerated in the post-conviction rules. Id. If an issue was known and available, but not raised on direct appeal, it is waived. Id. If it was raised on appeal, but decided adversely, it is res judicata. Id.
In reviewing the judgment of a post-conviction court, appellate courts consider only the evidence and reasonable inferences supporting the post-conviction court’s judgment. Hall v. State, 849 N.E.2d 466, 468 (Ind.2006). The post-conviction court is the sole judge of the evidence and the credibility of the witnesses. Id. at 468-69. Because he is now appealing from a negative judgment, to the extent his appeal turns on factual issues [the petitioner] must convince this court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. See Timberlake, 753 N.E.2d at 597. We will disturb the decision only if the evidence is without conflict and leads only to a conclusion contrary to the result of the post-conviction court. Id.

Lindsey v. State, 888 N.E.2d 319, 322 (Ind.Ct.App.2008), trans. denied. Further: “[a] defendant in a post-conviction proceeding may allege a claim of fundamental error only when asserting either (1) deprivation of the Sixth Amendment right to effective assistance of counsel, or (2) an issue demonstrably unavailable to the petitioner at the time of his or her trial and direct appeal.” Id. at 325 (quotations and alterations omitted); see also State v. Hernandez, 910 N.E.2d 213, 216 (Ind.2009) (same).

On appeal, White asserts that he received ineffective assistance from his appellate counsel. A claim of ineffective assistance of counsel must satisfy two components. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show deficient performance: representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the “counsel” guaranteed by the Sixth Amendment. Id. at 687-88, 104 S.Ct. 2052. Second, the defendant must show prejudice: a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome)' that, but for counsel’s errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052.

More specifically, White avers that his appellate counsel rendered ineffective assistance when he did not raise a particular issue on appeal. As our supreme court has explained:

To show that counsel was ineffective for failing to raise an issue on appeal thus resulting in waiver for collateral review, the defendant must overcome the strongest presumption of adequate assistance, and judicial scrutiny is highly deferential. To evaluate the performance prong when counsel waived issues upon appeal, we apply the following test: (1) whether the unraised issues are significant and obvious from the face of the record and (2) whether the unraised issues are “clearly stronger” than the raised issues. If the analysis under this test demonstrates deficient performance, then we examine whether, the issues which appellate counsel failed to raise[ ] would have been clearly more likely to result in reversal or an order for a new trial. Further, we must
consider the totality of an attorney’s performance to determine whether the client received constitutionally adequate assistance and should be particularly sensitive to the need for separating the wheat from the chaff in appellate advocacy, and should not find deficient performance when counsel’s choice of some issues over others was reasonable in light of the facts of the ease and the precedent available to counsel when that choice was made.
Ineffective assistance is very rarely found in cases where a defendant asserts that appellate counsel failed to raise an issue on direct appeal. One reason for this is that the decision of what issues to raise is one of the most important strategic decisions to be made by appellate counsel.

Reed v. State, 856 N.E.2d 1189, 1195-96 (Ind.2006) (citations, omissions, alterations, and some quotations omitted). With those standards in mind, we turn to White’s argument on appeal.

Indiana’s Proportionality Clause

The Proportionality Clause of Indiana’s Constitution mandates that “[a]ll penalties shall be proportioned to the nature of the offense.” Ind. Const. Art. I, § 16. As we have stated:

This court has observed that challenges to the constitutionality of a statute begin •with a presumption in favor of the statute’s constitutionality and will not be overcome absent a clear showing to the contrary. This standard arguably is more deferential where the challenge is based on the Proportionality Clause, as our supreme court has stated repeatedly that[,] because criminal sanctions are a legislative prerogative, separation-of-powers principles require a reviewing court to afford substantial deference to the sanction the legislature has chosen. Accordingly, we will not disturb the legislative determination of the appropriate penalty for criminal behavior except upon a showing of clear constitutional infirmity.

Mann v. State, 895 N.E.2d 119, 122 (Ind.Ct.App.2008) (citations, quotations, and alterations omitted). That said, this court has held that the Proportionality Clause is violated “where offenses with identical elements were given different sentences.” Poling v. State, 853 N.E.2d 1270, 1276-77 (Ind.Ct.App.2006). However, where the statutory elements are not identical, there is no violation. See Mann, 895 N.E.2d at 123-24.

Here, White contends that the elements of his felony murder conviction were identical to the elements of involuntary manslaughter, as a Class C felony. To prove felony murder, the State was required to show that White killed another human being while committing or attempting to commit robbery. I.C. § 35^42-1-1(2). Robbery is a base-level Class C felony offense, but it can be a Class B or Class A felony in certain circumstances. I.C. § 35-42-5-1. Here, the State’s charging information for the felony murder allegation tracked the statutory language for that offense, including the use of the word “robbery.” Direct Appeal App. at 23. But the State’s charging information for Class A felony robbery specifically described the alleged robbery as the knowing taking of “a wallet from ... Ryan Ylovchan, by using force, said act resulting in serious bodily injury to Ryan Ylovchan....” Id. at 24.

Involuntary manslaughter, as relevant in this appeal, occurs when “[a] person ... kills another human being while committing or attempting to commit: (1) a Class C or Class D felony that inherently poses a risk of serious bodily injury....” I.C. § 35^42-l-4(e). White asserts that these elements of involuntary manslaughter are identical to the elements of felony murder because the charging language only uses the generic term “robbery,” and robbery is a base-level Class C felony. Thus, White continues, his appellate counsel should have relied on Poling and sought to have White’s fifty-five year sentence for felony murder reduced to an appropriate sentence for Class C felony involuntary manslaughter, which is between two and eight years. See I.C. § 35-50-2-6(a).

White misunderstands how a conviction for felony murder works. In Taylor v. State, 922 N.E.2d 710, 716 (Ind.Ct.App.2010), trans. denied, we explained that,

to be convicted of felony murder, “it was necessary to instruct the jury on the definition of robbery, in that it was necessary for the jury to find that a robbery in fact had been perpetrated before it could come to the conclusion that a felony murder had been committed.”

(Quoting. Brownlow v. State, 484 N.E.2d 560, 562 (Ind.1985)). Here, the State never alleged Class 0 felony robbery, the parties never argued Class C felony robbery, the jury was not instructed on Class C felony robbery, and the jury did not find White guilty of Class C felony robbery. The only robbery ever at issue was the Class A felony robbery alleged by the State as its second count and found by the jury. Indeed, the jury’s verdict on the Class A felony robbery allegation was an essential predicate to the State’s felony murder charge. See id. And it was the jury’s verdict on the Class A felony robbery allegation on which that the trial court declined to enter judgment out of double jeopardy concerns. See Richardson, 717 N.E.2d at 52 n. 45.

White’s arguments in this appeal notwithstanding, his trial only involved robbery as a Class A felony. A Class A felony is not an element of involuntary manslaughter. See I.C. § 35—42—1—4(c). Had his appellate counsel raised this argument under the guise of Poling, this court would have soundly rejected it. On these facts, felony murder and involuntary manslaughter are different crimes with different statutory elements and, thus, the different sentences for these crimes presents no constitutional issue under the Proportionality Clause. Accordingly, White cannot demonstrate that this issue was either significant and obvious from the face of the record or “clearly stronger” than the issues his appellate counsel did raise. See Reed, 856 N.E.2d at 1195-96.

Conclusion

In sum, White cannot demonstrate that his appellate counsel’s performance was deficient. Hence, he likewise cannot demonstrate that he received ineffective assistance from his appellate counsel. We affirm the post-conviction court’s judgment denying White’s petition for post-conviction relief.

Affirmed.

KIRSCH, J., and MAY, J., concur.

      . Our supreme court originally granted the State's petition for transfer of jurisdiction in Taylor, but, "[a]fter further review, including oral argument, a majority of the Court ... determined that transfer of jurisdiction was improvidently granted.” Taylor v. State, 936 N.E.2d 1241 (Ind.2010). Accordingly, the court vacated its original order granting transfer and instead denied the transfer petition and “reinstated [the case] as Court of Appeals precedent.” Id.


author: GARRARD, Senior Judge.

text:
    STATE of Indiana, Appellant-Plaintiff, v. Raymond P. COLEMAN, Appellee-Defendant.
    No. 29A05-1108-CR-435.
    Court of Appeals of Indiana.
    July 30, 2012.

      Gregory F. Zoeller, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
    Stephen Gerald Gray, Indianapolis, IN, Attorney for Appellee.
   OPINION

GARRARD, Senior Judge.

The State moved to dismiss its case against Raymond Coleman after the trial court declined to find the alleged victim unavailable so as to permit the State to enter her deposition testimony into evidence. The trial court granted the motion to dismiss, and the State now appeals the adverse evidentiary ruling. Concluding that the State has no statutory authorization to bring this appeal, we dismiss.

In October 2008, the State charged Coleman with two counts of Class B felony criminal confinement, two counts of Class C felony battery, and one count of Class D felony pointing a firearm for an alleged incident involving Tanya Pender.

Coleman served a subpoena on Pender through the State to take a deposition on November 4, 2010. The State served the subpoena on Pender’s mother’s house. Pender did not appear for the deposition. The parties agreed that the State would attempt to locate Pender and that the deposition would be rescheduled.

About a week before the May 17, 2011 trial date, the State issued a subpoena to Pender ordering her presence at trial. In addition, the State met with Pender a few days before the trial date. No deposition was scheduled. When the parties appeared in court on May 17, 2011, Coleman moved for a continuance so that he could depose Pender and follow up on any new information she might provide. The trial court granted the motion over the State’s objection and reset the trial date for August 9, 2011. The same day, the State gave Pender a subpoena for the new trial date but failed to file a return with the court. Coleman deposed Pender later that day.

On August 9, 2011, Pender did not appear for trial. The jury was selected and sworn, and the parties made opening statements. The State tried to locate Pender for the second day of trial but was unsuccessful. On August 10, 2011, when Pender again failed to appear, the State asked the court to declare Pender unavailable so that it could enter her deposition testimony into evidence. Coleman objected. After a hearing on the matter, the court declined to find Pender unavailable and therefore would not allow the State to submit Pen-der’s deposition testimony into evidence. After the trial court denied the State’s motion to reconsider, the State moved to dismiss, which the court granted.

The State now appeals and asks us to hold that the issuance of a subpoena is not a necessary prerequisite for a finding of unavailability. Coleman responds that the State lacks statutory authorization to appeal. In its reply brief, the State says that it may appeal pursuant to Indiana Code section 35-38-4-2(5) (1988).

Section 35-38-4-2 governs the authority of the State to appeal in criminal matters:

Appeals to the supreme court or to the court of appeals, if the court rules so provide, may be taken by the state in the following cases:
(1) From an order granting a motion to dismiss an indictment or information.
(2) From an order or judgment for the defendant, upon his motion for discharge because of delay of his trial not caused by his act, or upon his plea of former jeopardy, presented and ruled upon prior to trial.
(3) From an order granting a motion to correct errors.
(4) Upon a question reserved by' the state, if the defendant is acquitted.
(5) From an order granting a motion to suppress evidence, if the ultimate effect of the order is to preclude further prosecution.
(6) From any interlocutory order if the trial court certifies and the court on appeal or a judge thereof finds on petition that:
(A) the appellant will suffer substantial expense, damage, or injury if the order is erroneous and the determination thereof is withheld until after judgment;
(B) the order involves a substantial question of law, the early determination of which will promote a more orderly disposition of the case; or
(C) the remedy by appeal after judgment is otherwise inadequate.

The State’s right to appeal in a criminal matter is statutory, and the State cannot appeal unless given that statutory authorization by the legislature. State v. Brunner, 947 N.E.2d 411, 415 (Ind.2011). The State’s statutory right of appeal is in contravention of common law principles and is therefore strictly construed. State v. Pease, 531 N.E.2d 1207, 1208 (Ind.Ct.App.1988).

The State contends that the provision governing this appeal is the statutory authorization to appeal “[f]rom an order granting a motion to suppress evidence, if the ultimate effect of the order is to preclude further prosecution.” Ind.Code § 35-38-4-2(5). However, Coleman did not file a motion to suppress evidence. Instead, he objected to Pender’s deposition testimony in part on the basis that she was not an unavailable witness. The State nonetheless argues that the ultimate effect of the trial court’s rejection of its request to declare Pender unavailable was to preclude further prosecution. This may be so. However, in light of the clear language of the statute, we are not at liberty to conclude that the legislature has authorized the State to appeal any adverse evi-dentiary ruling that deals a fatal blow to the State’s case.

The State also points to State v. Hobbs, 933 N.E.2d 1281 (Ind.2010), in support of its appeal. In that case, the trial court, at an initial hearing, found probable cause for the defendant’s arrest. The next day, the court sua sponte ruled that there was no probable cause because the evidence from the defendant’s car had been illegally seized. It therefore ordered the evidence excluded and the defendant released. The State appealed, and this Court and then our Supreme Court reviewed the case on its merits.

We note several distinctions between this case and Hobbs. Initially, we observe that apparently no question of legal error regarding the requisite statutory authorization was raised in the case, since neither this Court’s decision, State v. Hobbs, 915 N.E.2d 197 (Ind.Ct.App.2009), trans. granted, nor our Supreme Court’s opinion mention the State’s right to appeal. Accordingly, any error would be waived.

Moreover, the Supreme Court apparently treated the issue in Hobbs as a suppression of the evidence since it began by “review[ing] issues of law incident to rulings on suppression of evidence.” 933 N.E.2d at 1284. Indeed, the trial court’s action in excluding the evidence in Hobbs was a suppression of that evidence prior to commencement of trial.

Thus, Hobbs is quite unlike the present case where trial commenced, the State offered the deposition, the defendant objected, and the court simply sustained the objection. We find that the Supreme Court’s decision in Hobbs is inapposite.

For the reasons stated, we dismiss the attempted appeal.

Dismissed.

NAJAM, J., and BRADFORD, J., concur.

      . See K.S. v. State, 849 N.E.2d 538, 541-42 (Ind.2006) (discarding the prior concept of jurisdiction of the particular case).