author: BAILEY, Judge.

text:
    John KADER, Appellant, v. STATE of Indiana, DEPARTMENT OF CORRECTION, and The Geo Group, Inc., Appellees.
    No. 33A01-1302-CT-72.
    Court of Appeals of Indiana.
    Dec. 11, 2013.

      James E. Ayers, Wernle, Ristine & Ayers, Crawfordville, IN, Attorney for Appellant.
    Bruce B. Paul, Stites & Harbison, PLLC, Jeffersonville, IN, Attorney for Ap-pellees.
   OPINION

BAILEY, Judge.

Case Summary

In a textbook example of the differences between the Indiana and federal summary judgment standards, John Kader ("Ka-der"), an inmate with the Indiana Department of Correction ("the Department"), appeals the trial court's entry of summary judgment against him in his negligence suit against The GEO Group, Inc. ("GEO"), the State of Indiana ("the State"), the Department (collectively, "the Defendants").

We affirm in part, reverse in part, and remand for further proceedings.

Issues

Kader raises two issues for our review, which we restate as:

I. Whether the trial court abused its discretion when it struck an affidavit Kader submitted in opposition to GEO's motion for summary judgment; and
II. Whether the trial court erred when it entered summary judgment against Kader when it concluded that:
A. GEO's duty of care to Kader was that of a landowner to an invitee, and to the extent GEO had not been notified of any defects with the floor grates, its duty toward Kader did not include remedying any such defects;
B. Kader was contributorily negligent because he did not use a wheelchair and was walking without assistance of a cane;
C. Kader failed to produce competent evidence that falling on the floor grates was the medical cause of the injuries of which he complains; and
D. GEO had no duty of care as to Kader's medical treatment.

Facts and Procedural History

During September 2007, Kader was an inmate at the New Castle Correctional Facility ("the facility"). The facility was one of several Indiana correctional institutions owned by the State and controlled by the Department. GEO, a private corporation specializing in the operation and management of prisons, operated the facility under a contract with the Department.

Prior to and throughout September 2007, Kader suffered from what he de-seribed as "drop foot" in his right leg, which caused him difficulty in lifting his right foot off the ground while walking. At some point before September 2007, Ka-der had also suffered a head injury.

On September 29, 2007, Kader fell while walking through the facility and struck his head. Kader attributed his fall to one of his feet catching on an uneven floor grate. Kader was transported to Henry County Hospital for treatment; from there, he was subsequently transported to Wishard Hospital in Indianapolis for treatment of symptoms related to a head injury. Physi-clans at Wishard Hospital recommended additional diagnostic and follow-up treatment for Kader's head injury; neither GEO nor the Department took action on this recommendation.

On September 29, 2009, Kader filed suit against the State, the Department, and GEO, alleging negligent supervision, negligent installation of the floor grates, and negligence in providing medical care after Kader's return to the facility from Wish-ard Hospital.

On June 18, 2012, after depositions had been conducted of Kader and Virgil Bal-lenger ("Ballenger"), a former correctional officer employed by GEO at the facility, the Defendants jointly filed a motion for summary judgment against Kader.

On July 23, 2012, Kader submitted his response to the Defendants' motion. In support of his response, Kader designated his deposition, Ballenger's deposition, and the affidavit of LaDarryl Holland ("Holland"), an inmate at the facility who was responsible for cleaning the hallway in which Kader fell. On August 9, 2012, the Defendants moved to strike Holland's affidavit.

On September 4, 2012, the trial court granted the motion to strike Holland's affidavit and entered summary judgment against Kader; the court's order included findings and conclusions setting forth its rationale.

On September 7, 2012, Kader filed a motion captioned as one seeking reconsideration of the entry of summary judgment. In it, Kader noted that when the trial court entered summary judgment, it erroneously disregarded from consideration portions of Kader's timely-filed responsive briefing. The Defendants' responsive briefing acknowledged the error, but nonetheless continued to argue that summary judgment against Kader was proper.

On January 14, 2013, the trial court again entered summary judgment against Kader.

This appeal followed.

Discussion and Decision

Holland's Affidavit

In his first designated issue on appeal, Kader contends that the trial court abused its discretion when it struck LaDarryl Holland's affidavit, which Kader had designated as evidentiary material in his opposition to the motion for summary judgment.

A trial court has broad discretion to rule upon evidentiary matters. Kroger Co. v. Plonski, 930 N.E.2d 1, 5 (Ind.2010). Such discretion "extends to rulings on motions to strike affidavits on the grounds that they fail to comply with the summary Judgment rules." Id. (citations and quotations omitted).

When submitting or defending against a motion for summary judgment, a party shall serve supporting affidavits and other designated evidentiary materials. Ind. Trial Rule 56(C). Such affidavits "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." TR. 56(E).

Mere assertions in an affidavit of conclusions of law or opinions will not suffice. City of Indianapolis v. Duffitt, 929 N.E.2d 231, 239 (Ind.Ct.App.2010). "An affidavit need not contain an explicit recital of personal knowledge when it can be reasonably inferred from its contents that the material parts thereof are within the affiant's personal knowledge." Decker v. Zengler, 883 N.E.2d 839, 844 (Ind.Ct.App.2008), trans. denied.

Delage Landen Fin. Servs., Inc. v. Cmty. Mental Health Ctr., Inc., 965 NE.2d 693, 701 (Ind.Ct.App.2012), trans. denied.

"[Aln affidavit that would be inadmissible at trial may be considered at the summary judgment stage of the proceedings if the substance of the affidavit would be admissible in another form at trial." Reeder v. Harper, 788 N.E.2d 1236, 1241-42 (Ind.2003). The substance of the affidavit controls, not the form. Cotton v. Auto-Owners Ins. Co., 937 N.E.2d 414, 418 (Ind.Ct.App.2010) (citing Reeder, 788 N.E.2d at 1240-41).

In Delage, this Court found no abuse of discretion where a trial court denied a defendant's motion to strike an affidavit submitted by a plaintiff in support of the plaintiff's motion for summary judgment in a contract case. DeLage, 965 N.E.2d at 701. In reaching that conclusion, we observed that the plaintiff's affidavit included "a specific recitation that [affiant had] personal knowledge of the facts related therein," and that other averments demonstrated familiarity with the contract at issue and its underlying accounts. Id. Thus, the defendant could not overcome summary judgment merely by seeking to discredit the averments on appeal. Id.

Here, GEO contended that Holland's affidavit failed to meet the requirements of Trial Rule 56(E). GEO argued that the affidavit was not credible because it included averments that were specifically contradicted by evidence and affidavits from employees of GEO and the Department. GEO further claimed that Holland's aver-ments failed to demonstrate personal knowledge of the facts of the case. The trial court agreed, and struck the affidavit.

After averring competence to testify, Holland's affidavit states:

2. I was an inmate at [the facility] operated by the GEO Group, Inc. in 2007, and at the time of Mr. Kader's fall, and have personal knowledge regarding some of the facts of this case.
3. At the time of Mr. Kader's fall ... I was the inmate clerk in charge of cleaning the hallway where the floor grate in question was located, and I was personally present when Mr. Kader fell.
4. The gratings in the hallway were aluminum and had become warped and could not be positioned to be level with one another and caused a tripping hazard. As installed there was not a level surface. Some edges were above floor level, and that created the hazard. Over a period of at least six months before Mr. Kader's injury, this hazard was well known to Staff in writing and by showing and telling. Being the clerk at the time, I personally contacted Caseworker Sloss, Caseworker Kim Lewis, Lt. Lucas, Major Thompson, and Superintendent Ritley. We discussed that it should either be filled in or at least the grating removed. The caseworkers told me they had put in several work-orders for maintenance. The others indicated that the problem would be fixed.
5. During my stay at [the facility] no steps were taken to correct or repair this problem even after Mr. Kader was injured.
6. On the day Mr. Kader fell I was working as the clerk and Ms. Clark was the officer in charge. Mr. Kader was crossing the grating at a walking pace when he tripped over the protruding edge of the grate and fell head first, striking his head on the corner of the lower windowsill.
7. Ms. Clark, who was at the outside door, immediately stepped in to examine Mr. Kader, who was bleeding from the head. She remained with him, cleaning the blood away, and comforting him until medical personnel arrived and took him away.

(Appellant's App'x at 94-95.)

In response to Holland's affidavit-and specifically the portions of paragraph four that discuss Holland's efforts to notify prison staff of the danger posed by the floor grates-GEO produced an affidavit indicating that members of the staff to whom Holland's averments referred were either not employed at the prison at the time or were never employed at the prison. In its motion to strike the affidavit, GEO further argued that much of what Holland stated concerning his interactions with prison staff amounted to hearsay that might be inadmissible at trial, and that the rest of the affidavit was inadmissible either because Holland's claims of personal knowledge were insufficient or because they amounted to legal conclusions to which Holland could not properly speak.

The trial court was correct to strike some portions of the affidavit; other portions, however, are not inadmissible and were not properly stricken. Portions of Holland's affidavit relate information of which he would reasonably be expected to have personal knowledge in his position as an inmate clerk present in the hallway when and where Kader fell. See DeLage, 965 N.E.2d at 701. Specifically, Holland's averments concerning the condition of the floor grates-that is, whether they were uneven and protruded upward-and where Kader was when he fell were admissible, and it was error to strike these portions of the affidavit. So, too, was it error to strike Holland's averment that he had submitted written requests and spoken with prison officials concerning the condition of the floor grates. But see Price v. Freeland, 882 N.E.2d 1036, 1041-42 (Ind.Ct.App.2005) (holding that the trial court erred when it did not strike from an affidavit statements concerning court filings, where copies of the claimed court filings were not attached in support of the affidavit).

Holland's averment that prison officials had assured him that the condition would be remedied was inadmissible and properly stricken. See Ind. Evidence Rule 801 (defining hearsay). Too, Holland's averment that the grates were a tripping hazard because their edges protruded, leading to Kader "tripp[ing] over the protruding edge of the grate," (Appellant's App'x at 95) is inadmissible because it asserts a personal opinion or legal conclusion that an unremedied tripping hazard existed, and that hazard was the cause of Kader's fall.

To the extent the trial court struck portions of the affidavit that were admissible, it abused its discretion, and we therefore reverse the order to the extent it strikes the admissible portions of the affidavit.

Summary Judgment

We turn now to Kader's second contention on appeal, namely, that the trial court erred when it granted the Defendants' motion for summary judgment.

A trial court's entry of summary judgment comes to this court "clothed with a presumption of validity." Bunch v. Tiwari, 711 N.E.2d 844, 848 (Ind.Ct.App.1999) (citations and quotations omitted). Nevertheless, "we carefully assess the trial court's decision to ensure that the nonmovant was not improperly denied its day in court." Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind.1997).

Thus, we review appeals from the entry of summary judgment de novo, and are bound by the same standard as the trial court. Wilson v. Isaacs, 929 N.E.2d 200, 202-03 (Ind.2010). Summary judgment "shall be rendered forthwith if the designated evidentiary matter shows that there is no issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." TR. 56(C). Any doubt as to the existence of a factual issue should be resolved against the party moving for summary judgment, and where designated evidentiary materials may give rise to reasonable conflicting inferences, such inferences shall be drawn in favor of the non-movant. Auto-Owners Ins. Co. v. Harvey, 842 N.E.2d 1279, 1289 (Ind.2006). "The court must accept as true those facts alleged by the nonmoving party and resolve all doubts against the moving party'" Id. (citations and quotations omitted).

In summary judgment proceedings, the initial burden is on the mov-ant to "designate sufficient evidence to foreclose the nonmovant's reasonable inferences and eliminate any genuine factual issues." Butler v. City of Peru, 733 N.E.2d 912, 915 (Ind.2000). It is only after the movant has met this burden that "the burden shifts to the nonmovant to make a showing sufficient to establish the existence of a genuine issue for trial on each challenged element of the cause of action." Id. This aspect of summary judgment procedure in Indiana differs significantly from the federal procedure.

The summary judgment order in this case was entered upon a claim of negligence. Summary judgment is rarely appropriate in negligence cases. Kennedy v. Guess, Inc., 806 N.E.2d 776, 783 (Ind.2004). This is because "(issues of negligence, contributory negligence, causation, and reasonable care are more appropriately left for the determination of a trier of fact." Florio v. Tilley, 875 N.E.2d 253, 256 (Ind.Ct.App.2007), trans. denied. Questions of law, like whether a defendant had a duty of care as to a plaintiff or whether certain facts constitute proximate cause, may be appropriate for summary judgment. See, e.g., Plonski, 930 N.E.2d at 9; Florio, 875 N.E.2d at 256. So, too, is the defense of contributory negligence (as applicable to government defendants) "generally a question of fact ... not appropriate for summary judgment 'if there are conflicting factual inferences?" Funston v. Schl. Town of Munster, 849 N.E.2d 595, 599 (Ind.2006). And while a trial court's annunciation of findings of fact and conclusions of law on such matters may aid our review and reveal the reasoning of the trial court, they are not required and are not binding upon appeal. New Albany Historic Pres. Comm'n v. Bradford Realty, Inc., 965 N.E.2d 79, 84 (Ind.Ct.App.2012).

Here, the trial court assessed the credibility of Kader's statements regarding the condition of the floor grates on which he fell, comparing Kader's statements to those of employees or former employees at the facility. The court also found that Kader's walking without a cane or wheelchair amounted to contributory negligence.

Yet the role of the trial court at summary judgment is not to act as a trier of fact, but rather to determine whether the movant established, prima fa-cie, either that there is insufficient evi-denee to proceed to trial, or that the mov-ant is otherwise entitled to judgment as a matter of law. Witness credibility and the relative apparent weight of evidence are not relevant considerations at summary judgment. Galligan v. Galligan, 741 N.E.2d 1217, 1227 (Ind.2001). Assessments of credibility and weight are the province of the fact-finder at trial, not the trial court at summary judgment. See Miller v. Bernard, 957 N.E.2d 685, 699 (Ind.Ct.App.2011) (noting that "[i]t is properly the role of a fact-finder to determine ... intentions and actions"). And as to contributory negligence, the trial court may enter summary judgment on such matters "only when the court can say that no reasonable person would have acted as the plaintiff did under the cireumstances," or, only if a plaintiff's (here, Kader's) negli-genee was "'so clear and palpable that no verdict could make it otherwise."" Templeton v. City of Hammond, 679 N.E.2d 1368, 1373 (Ind.Ct.App.1997).

Here, there was contradictory evidence in the form of Kader's and Ballenger's deposition testimony concerning the condition of the floor grates. There was also evidence in the form of Kader's testimony that though he had been provided a wheelchair and a cane, he was regularly able to navigate the prison environment without using those aids and that his need for them was unpredictable. The trial court's assessment of the credibility of the testimony and factual determination that Ka-der's conduct was contributorily negligent, despite evidence that gave rise to contrary inferences, were both in error.

Nature of GEO's Duty of Care

We turn next to the question of what duty of care GEO, a private contractor hired by the State to manage a Department prison, owed to Kader, a prisoner. GEO contends, and the trial court agreed, that Kader was simply an invitee.

"A plaintiff seeking damages for negligence must establish (1) a duty owed to the plaintiff by the defendant, (2) a breach of the duty, and (8) an injury proximately caused by the breach of duty." Pfenning v. Lineman, 947 N.E.2d 392, 398 (Ind.2011). "When there is no genuine issue of material fact and any one of these elements is clearly absent, summary judgment is appropriate." Id. at 403.

In assessing GEO's duty of care, the trial court determined that Kader was an invitee and that, because there had been no evidence presented of prior reporting or any other knowledge on the part of GEO regarding problems with the grating upon which Kader fell, GEO could not be Hable toward Kader. The court also found that Kader was contributorily negligent for his injuries for failure to use a cane and/or wheelchair with which he had been provided due to his medical conditions.

Our research has not revealed that Indiana courts have applied to cases of inmate injury the trespasser-licensee-invitee distinctions generally applicable in premises liability cases. As our supreme court has previously announced, the duty of a custodian of inmates is "to exercise reasonable care to preserve the life, health, and safety of the person in eusto-dy." Sauders v. Cnty. of Steuben, 693 N.E.2d 16, 18 (Ind.1998). The duty does not extend to taking action to prevent a particular act. Id. Rather, the custodian's duty "is to take reasonable steps under the civeumstances for the life, health, and safety of the detainee." Id. The steps to be taken "will vary according to the facts and cireumstances presented in each case." Id. (citations and quotations omitted).

In reaching this conclusion, our supreme court found the Restatement (Second) of Torts persuasive. Id. The Restatement recognizes that this distinction between the duty of a custodian and that of an ordinary landowner "arise[s] out of special relations between the parties, which create a special responsibility, and take the case out of the general rule." Restatement 2d of Torts § 314A cmt. B. The duty to protect the other against unreasonable risk of harm "extends to risks arising out of the actor's own conduct, or the condition of his land or chattels ... [and] to risks arising from pure accident, or from the negligence of the plaintiff himself." Restatement 2d of Torts § 314A cmt. D.

Kader was an inmate in the facility's care-not a social or business guest either invited or permitted onto the property. Thus, the trial court erred when it conelud-ed that GEO owed Kader the duty of care generally reserved for an invitee. Upon remand, we instruct the trial court to apply the duty of care applicable to individuals and entities acting as a custodian, rather than as an ordinary landowner.

Contributory Negligence

We now turn to the trial court's conclusion that Kader's walking through the facility without an aid was contributory negligence that afforded GEO a complete defense to liability.

Indiana has adopted, in most tort cases, a comparative negligence scheme whereby the negligence of a plaintiff, which contributed to the complained-of injury, does not of itself afford a complete defense to liability for a defendant. See Ind.Code § 34-51-2-1 et seq. Rather, the relative levels of fault among the parties are assessed, and a defendant may be found to be partly or entirely liable or not Hable for a plaintiff's injuries. I.C. § 34-51-2-6. However, where the plaintiff pursues a claim of negligence against an alleged tortfeasor under the Indiana Tort Claims Act, the comparative negligence scheme set forth by the Indiana Comparative Fault Act does not apply. I.C. § 34-51-2-2. In such cases, contributory negli-genee on the part of a plaintiff provides a complete defense to liability for the State and other government actors who fall within the seope of the Act. Shand Min., Inc. v. Clay Cnty. Bd. of Comm'rs, 671 N.E.2d 477, 479 (Ind.Ct.App.1996), trans. denied.

The Indiana Tort Claims Act specifies who is within the seope of the provisions of the Act. The Act applies to suits at tort against governmental entities, political subdivisions, and individual members or employees of government entities under certain cireumstances. I.C. §§ 34-13-3-1 & -5. Further, the Act provides that certain private parties working on behalf of a governmental body also fall within the seope of the provisions of the Act. I.C. § 34-13-3-22 (treating as political subdivisions statutorily created or defined community action agencies, individuals or corporations rendering public transportation services under certain circumstances, and members of volunteer fire departments under certain cireum-stances). Private prison operators like GEO and its employees do not fall within any of these categories.

That GEO falls outside the seope of the Indiana Tort Claims Act and the universe of claims that an individual may bring against the State finds support in several rulings by the United States Supreme Court. In a series of cases, and most recently in Minneci v. Pollard, - U.S. -, 132 S.Ct. 617, 181 L.Ed.2d 606 (2012), the Court considered lawsuits filed by prisoners alleging federal civil rights violations against private prison operators. In Minneci, the plaintiff was an inmate in a privately-operated, federal prison, and claimed that his Eighth Amendment rights had been violated when the private prison operator and its employees were negligent in their provision of medical care. Id. at 626. The Court held that in such cireum-stances, no claim under the Civil Rights Act may be pursued where other civil remedies-in Minnect, a negligence action at tort under state common law-are available to the inmate plaintiff. Id.

Taking together the provisions of the Tort Claims Act and the result of Minneci and its predecessor cases, we conclude that such private contractors as prison operators do not merely stand in the shoes of a government body for purposes of liability at tort. Rather, such private contractors are subject to liability in much the same manner as other private actors. GEO, a private business, is thus not entitled to relief from liability under a contributory negligence defense.

Moreover, whether a plaintiff has engaged in any form of negligent conduct that contributed to his injury-under either a comparative or a contributory negligence scheme-is ordinarily a question left to a finder of fact to decide. Here, the trial court concluded that Ka-der's failure to use a cane or wheelchair was contributory negligence that barred him from any recovery against GEO or the State. The testimony Kader offered during his deposition, portions of which were designated material submitted at summary judgment, indicates that despite his "drop foot" and a past history of occasional falls, he regularly navigated successfully in his prison environment without a cane or a wheelchair. And that testimony raises an additional question of fact concerning whether GEO, as Kader's custodian, breached its duty of care by not precluding him from moving through the prison without also using a cane or wheelchair.

That is, GEO has not established that there is no question of material fact concerning whether Kader's non-use of an ambulation aid on September 29, 2007, amounted to contributory negligence, or whether GEO in turn breached its duty of care in permitting Kader's unassisted movement through the facility,. This is therefore a question of fact for the jury to decide. The trial court erred when it determined otherwise. And upon remand, we instruct the trial court to treat Kader's claims against GEO as within the scope of comparative, not contributory negligence.

Causation

Next, we turn to Kader's contention that the trial court erred when it granted summary judgment on the question of whether his injuries were caused by his fall on September 29, 2007. Kader argues that the trial court improperly shifted onto him the burden of producing evidence that his injuries were caused, or at least aggravated, by his fall.

We agree.

At summary judgment, GEO argued, and the trial court agreed, that a plaintiff must, where the plaintiff suffered some prior medical condition, bear the burden of proving that additional injuries or complications to that prior condition suffered were the result of a tortfeasor's actions. In this, the court relied upon Topp v. Leffers, 838 N.E.2d 1027 (Ind.Ct.App.2005), trans. denied, and Armstrong v. Gordon, 871 N.E.2d 287 (Ind.Ct.App.2007), trams. denied. The proposition for which the trial court and the defendants relied upon these cases is generally correct-but it is operative at trial, where the burden of proof rests upon the plaintiff.

Here, Kader as the nonmovant plaintiff bore no burden of production until GEO as the movant defendant came forward with evidence establishing the absence of any issue of material fact as to the cause of Kader's injuries. See Butler, 733 N.E.2d at 915. Thus, both Topp and Armstrong are easily distinguished-they apply to the plaintiff's burden of proof at trial, not the nonmovant plaintiff's burden of production at summary judgment. And our review of the record does not reveal that GEO satisfied its burden of production. GEO designated the testimony or affidavits of Kader and GEO employees on the question of the design, condition, construction, and maintenance of the floor grates; there is no medical evidence from either party in the record.

Having failed to designate any evidentia-ry matter in support of its motion on the question of causation, GEO failed to carry its burden of production at the summary judgment stage. Where, as here, the mov-ant fails in its burden of production, the burden did not shift onto Kader as the nonmovant. See id. The trial court's assignment of the burden of production to Kader was erroneous, and so was entry of summary judgment on causation.

Medical Treatment

Finally, we turn to the question of whether summary judgment was proper on Kader's allegation that GEO was negligent in failing to procure follow-up medical treatment.

Here, GEO produced evidence in the form of contractual arrangements and testimony that questions of medical care were not within the scope of its role in the facility. Instead, the Department entered into an agreement with a contractor other than GEO to provide for inmate medical care. The Department also restricted GEO from providing such care itself. Ka-der's testimony also indicates that he was aware GEO did not address questions of medical care, and there is no evidence that GEO otherwise assumed a duty for Ka-der's medical care.

In light of the designated evidentiary materials, we cannot conclude that the trial court erred when it entered summary judgment as to GEO's duty of care for Kader's medical treatment after he was released from Wishard Hospital and returned to the facility. We therefore affirm the trial court's entry of summary judgment as to Kader's claim that GEO was negligent in failing to provide for his follow-up medical care.

We cannot, however, sustain summary judgment in favor of the State and the Department on this basis. For while there is no question of material fact as to GEO's position vis-a-vis medical care for Kader, there has been no evidentiary matter designated concerning any duty or lack thereof on the part of the State and the Department, as custodians of Kader and the ultimate authority over his medical treatment. We therefore reverse the trial court's entry of summary judgment as to these defendants on Kader's negligent medical treatment claim.

Conclusion

The trial court abused its discretion when it struck the entirety of Holland's affidavit, which Kader designated as evi-dentiary material in response to the motion for summary judgment. The trial court erred when it entered summary judgment against Kader regarding his claims against GEO, except as to Kader's claim that GEO was negligent in its procurement and supervision of his follow-up medical care. The trial court also erred when it entered summary judgment against Kader on his claim of negligent medical treatment as it pertained to the State and the Department.

Affirmed in part, reversed in part, and remanded with instructions.

FRIEDLANDER, J., and KIRSCH, J., concur.

      . None of the defendants contend that Ka-der's motion or this appeal were untimely filed.

      . Federal procedure requires only that the movant "inform the court of the basis of the motion and identify relevant portions of the record 'which it believes demonstrate the absence of a genuine issue of material fact.'" Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind.1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). The movant having met this burden, the nonmov-ant must bear the burden to show the existence of a genuine issue of material fact on each challenged element upon which the non-movant must bear the burden of proof at trial. Id.

      . This analysis is only strengthened by inclusion of the admissible portions of Holland's affidavit. See discussion, supra.


source: Caselaw Access Project

author: BROWN, Judge.

license: Public Domain

text:
    AVON TRAILS HOMEOWNERS ASSOCIATION, INC., Appellant, v. Kellie HOMEIER, Appellee.
    No. 32A01-1307-PL-312.
    Court of Appeals of Indiana.
    Dec. 16, 2013.

      Jeffrey M. Bellamy, Stephen R. Don-ham, Thrasher Buschmann & Voelkel, P.C., Indianapolis, IN, Attorneys for Appellant.
    A. Richard M. Blaiklock, Ryan J. Ver-shay, Lewis Wagner, LLP, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Avon Trails Homeowners Association, Inc. ("Avon Trails") appeals from the trial court's Order After Hearing denying its request for a preliminary injunction in favor of Kellie Homeier. Avon Trails raises one issue, which we revise and restate as whether the trial court erred in its interpretation of a restrictive covenant, thereby denying Avon Trails' request for a preliminary injunction. We reverse.

FACTS AND PROCEDURAL HISTORY

Avon Trails is an association which manages a subdivision (the "Subdivision") located in Hendricks County, Indiana. Avon Trails and the Subdivision are governed by the Declaration of Covenants, Conditions and Restrictions of Avon Trails (the "Declaration") recorded in the Hendricks County Recorder's Office on October 19, 1999. The Declaration contains a prohibition against the outdoor storage of trailers within the Subdivision. Specifically, Seetion 6.18 of the Declaration, located in Article VI which is titled "Use, Restrictions, and Architectural Control," states:

Section 6.18 Semi-tractor trucks, trailers, etc. No semi-tractor trucks, semi-trucks, semi-tractor trailers, boats, campers, mobile homes, disabled vehicles, and/or trailers shall be permitted to park on the Property or a Lot unless fully enclosed in a garage, or unless the same is necessary and incident to the Declarant's, builder's or Association's business on the Property.

Appellant's Appendix at 20, 22 (the "Covenant"). Also, the Declaration defines "Property" as all real estate contained within the Subdivision. Further, Article II, Section 2.11 of the Declaration defines "Lot," in pertinent part as "any parcel ... of land designated as such upon the Plat . or ... that parcel of land upon which there is constructed a Dwelling Unit that is conveyed to an Owner ... by the De-clarant." Id. at 10. The Declaration defines "Declarant" as the Tri-North Development, LLC, an Indiana limited Hability company and its successors and assigns. It defines "Builder" as "a person or entity engaged in and responsible for the original construction of a residence on a Lot" and defines "Association" as "Avon Trails Homeowners Association, Inc., a nonprofit corporation, its successors and assigns." Id. at 9.

Homeier is the owner of a lot within the Subdivision located at 9271 Stonewall Lane (the "Lot"). Since Homeier became the Lot's owner, members of Avon Trails observed her parking a trailer (the "Trailer") within the Subdivision, and on October 27, 2011, Avon Trails, by its property manager, sent a letter to her informing her that parking the Trailer within Avon Trails violated the Declaration and requesting her compliance. On December 9, 2011, Avon Trails sent a second letter to Homeiler again informing her that parking the Trailer within the Subdivision violated the Declaration and requested her compliance. However, the Trailer was observed parked at or adjacent to the Lot on December 20, 2011, December 28, 2011, January 3, 2012, January 11, 2012, and January 17, 2012, and Avon Trails photographed the trailer on each occasion.

On January 20, 2012, Avon Trails sent a third letter to Homeier informing her that parking the Trailer within the Subdivision violated the Declaration and again requested her compliance. The Trailer was subsequently observed by a member of Avon Trails parked at or adjacent to the Lot on January 26, 2012, and February 10, 2012, and photographs were taken of the Trailer. On February 21, 2012, Avon Trails by counsel sent a fourth letter to Homeier informing her of the Covenant violation and once again requested her compliance by February 26, 2012. The letter also contained a photocopied image of the Covenant. Again, the Trailer was observed parked at or adjacent to the Lot on May 3rd, May 4th, and May 25th of 2012, and photographs were taken.

On June 13, 2012, Avon Trails filed its complaint along with a motion for preliminary injunction. The court held a hearing on the motion on June 26, 2012, in which Avon Trails appeared and Homeier failed to appear. The court reset the matter for a later hearing and requested Avon Trails to tender a proposed order subject to verification of service on Homeier. It was determined that service was not effectuated on Homeier at the time of the June 26, 2012 hearing, and accordingly Avon Trails filed a second motion for preliminary injunction, again seeking to enjoin Homeier from parking the Trailer within the Subdivision.

On November 1, 2012, the court held a hearing on Avon Trails' second motion in which Avon Trails appeared by counsel and by representative and Homeier appeared pro se. During the hearing, the court sua sponte raised the question of whether the Covenant applied to lot owners within the Subdivision such as Homeier. Following the hearing, the court took the matter under advisement and requested that Avon Trails respond to its questions regarding the interpretation of the Covenant. On November 6, 2012, Avon Trails filed its Memorandum in Response to the Court's Questions from November 1, 2012 Hearing, and on November 8, 2012, the court issued its Order After Hearing (the "Order") denying Avon Trails' preliminary injunction request.

On December 6, 2012, Avon Trails filed its notice of appeal under Cause Number 32A05-1212-PL-612 (the "First Appeal"). On April 30, 2013, the parties filed with the trial court their Joint Motion to Vacate Findings and Submission of Agreed Entry of Judgment (the "Joint Motion"), seeking to vacate the Order and for the imposition of a permanent injunction against Homeier. Specifically, the Joint Motion stated in part:

After submission of [Avon Trails'] Brief in Support of its Appeal, the Parties, via counsel have discussed amicable resolution and final settlement of this matter in avoidance of further costs and uncertainty of continued litigation. The Parties Jointly Move and Agree as follows:
a. That the Court's November 8, 2012 Findings of Fact be vacated and substituted with this Agreed Entry;
b. That this Entry be accepted and enforceable by the Court as if it were its own Order;
c. That [Homeier] agrees that the Declaration is valid and enforceable as it applies to her Lot, particularly Article 6, Section 18, the covenant against outdoor trailer storage;
d. That [Homeier] agrees to a permanent injunction against violating Article 6, Section 18 so long as it is applicable to her as Lot Owner, Guest, Invitee, Tenant, ete. in the Avon Trails subdivision.
e. That the Parties have jointly dismissed the pending appeal in this cause under Appellate Cause No. 32A05-1212-PL-00612, and;
f. That [Avon Trails] will waive any claim it possesses to reimbursement of its court costs and legal fees pursuant to Article 10, Section 1 of the Declaration arising from this cause of action so long as the terms of this Agreement are faithfully kept.

Id. at 60.

On May 1, 2013, the trial court issued an order by entry on the chronological case summary ("CCS") stating:

Court reviews the motion to vacate and reviews the order for after hearing entered 8 Nov., 2012 and notes that this case is on appeal with the court of appeal ... giving the appellant opportunities to respond. The court declines the party's [sic] invitation to the trial court to vacate the judgment that the court entered on 8 Nov., 2012 because the court believe [sic] that the order after hearing of 8 Nov., 2012 correctly sets out the status of this case at the time the case was tried to the court.

Id. at 4.

The parties then filed their Joint Motion with this court in the First Appeal on May 23, 2013, asking this court to accept their proposed agreed entry of judgment and to have the matter remanded to the trial court with instructions to vacate the Order and to accept the parties' proposed agreed entry as if it were the trial court's own entry. On June 11, 2013, this court issued its order stating in relevant part:

1. Appellant and Appellee's Joint Motion ... is GRANTED IN PART, and pursuant to Appellate Rule 37, this appeal is DISMISSED WITHOUT PREJUDICE and remanded to the trial court for further proceedings.
2. On remand, if any part of the trial court's forthcoming ruling is adverse to Appellant, Appellant may, after filing a new notice of appeal, raise the issues it would have raised in this appeal along with any new issues created by the trial court's ruling on remand.

Id. at 70. On July 1, 2018, the trial court issued an order by entry on the CCS stating: "Court refers the parties to the Order of 3 May 2013 and takes no action on the motion. CAUSE DISPOSED bkm NOTICE." Id. at 5. On July 17, 2013, Avon Trails commenced the instant appeal.

ISSUE/STANDARD OF REVIEW

The issue is whether the trial court erred in its interpretation of a restrictive covenant and in doing so denied Avon Trails' request for a preliminary injunction. The grant or denial of a request for a preliminary injunction rests within the sound discretion of the trial court, and our review is limited to whether there was a clear abuse of that discretion. Gleeson v. Preferred Sourcing, LLC, 883 N.E.2d 164, 171-172 (Ind.Ct.App.2008) (citing Ind. Family & Soc. Servs. Admin. v. Walgreen Co., 769 N.E.2d 158, 161 (Ind.2002)). When determining whether to grant a preliminary injunction, the trial court is required to make special findings of fact and state its conclusions thereon. Id. at 172. When findings and conclusions thereon are made, we must determine if the trial court's findings support the judgment. Id. We will reverse the trial court's judgment only when it is clearly erroneous. Id. Findings of fact are clearly erroneous when the record lacks evidence or reasonable inferences from the evidence to support them. Id. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made. Id. We consider the evidence only in the light most favorable to the judgment and construe findings together liberally in favor of the judgment. Id. Also, the power to issue a preliminary injunction should be used sparingly, and such relief should not be granted except in rare instances in which the law and facts are clearly within the moving party's favor. Id.

To obtain a preliminary injunetion, the moving party has the burden of showing by a preponderance of the evidence the following: (1) a reasonable likelihood of success at trial; (2) the remedies at law are inadequate; (8) the threatened injury to the movant outweighs the potential harm to the nonmoving party from the granting of an injunction; and (4) the public interest would not be disserved by granting the requested injunction. Id. If the movant fails to prove any of these requirements, the trial court's grant of an injunction is an abuse of discretion. Id.

DISCUSSION

We begin our discussion by noting the peculiar procedural posture of this case. As highlighted above, it appears that the parties have come to an agreement about disposing of this case as expressed in their Joint Motion, but the trial court on multiple occasions refused the parties' overtures to enter an order on the Joint Motion. Instead of accepting the proposed settlement expressed in the Joint Motion to vacate its order, enter a permanent injunction, and end any proceedings at the appellate court level, the court in its CCS entries on May 3 and July 1, 2018, opted to leave in place its interpretation of the Covenant as expressed in its Order.

We also note that on appeal Hom-eler does not challenge the arguments of Avon Trails; her brief consists of two pages in which she does not dispute Avon Trails' statement of the issue, agrees with Avon Trails statement of the case and statement of facts, and her argument seetion simply states: "Because of a settlement, [Homeier] does not contest the arguments advanced by [Avon Trails]." Appellee's Brief at 1. We observe that Homeier's decision to not respond to Avon Trails arguments in her brief is akin to failing to file a brief, and under such cireamstances we may reverse based upon a prima facie error standard. See Nat'l Oil & Gas, Inc. v. Gingrich 716 N.E.2d 491, 496 (Ind.Ct.App.1999) (failure to respond to an issue raised by an appellant is akin to the failure to file a brief, and under such cireumstances we may reverse the unaddressed issue on a showing of prima facie error). Under such circumstances, questions of law are still reviewed de novo. McClure v. Cooper, 893 N.E.2d 337, 339 (Ind.Ct.App.2008).

Nevertheless, the merits of this case do not prove difficult to address. This court has defined restrictive covenants in the following manner:

Generally, a covenant is an agreement duly made to do, or not to do, a particular act. In modern usage, the term "covenant" generally describes promises relating to real property that are created in conveyances or other instruments. Covenants may be express or implied as a matter of law. Moreover, covenants are a species of express contract.
* # # * *
If the required performance limits the uses that can be made by the owner or occupier of land, the covenant is usually called a restrictive covenant. We have held that restrictive covenants are, in essence, a form of express contract between a grantor and a grantee in which the latter agrees to refrain from using his property in a particular manner.

Crawley v. Oak Bend Estates Homeowners Ass'n, Inc., 753 N.E.2d 740, 744 (Ind.Ct.App.2001) (quoting Columbia Club. Inc. v. Am. Fletcher Realty Corp., 720 N.E.2d 411, 417-418 (Ind.Ct.App.1999), trans. denied), reh'g denied, trans. denied. We also observed in Crawley regarding restrictive covenants that:

The covenanting parties' intent must be determined from the specific language used and from the situation of the parties when the covenant was made. Furthermore, specific words and phrases cannot be read exclusive of other contractual provisions. In addition, the parties' intentions must be determined from the contract read in its entirety. We attempt to construe contractual provisions so as to harmonize the agreement.

Id. at 745 (quoting Columbia Club, 720 N.E.2d at 419). Finally, the Indiana Supreme Court has noted that "[rlestrictions found in a declaration ... 'are clothed with a very strong presumption of validity which arises from the fact that each individual unit owner purchases his unit knowing of and accepting the restrictions to be imposed.'" Villas West II of Willowridge Homeowners Ass'n. Inc. v. McGlothin, 885 N.E.2d 1274, 1279 (Ind.2008) (quoting Hidden Harbour Estates, Inc. v. Basso, 393 So.2d 637, 639 (Fla.Dist.Ct.App.1981)) reh'g denied, cert. denied, 555 U.S. 1213, 129 S.Ct. 1527, 173 L.Ed.2d 657 (2009).

The court in its Order found that the Covenant "is intended to apply to the de-clarants, builders or association's businesses on the property" and that Homeier "in this case does not fall within [the Covenant] that can be applied to her." Appellant's Appendix at 6. The crux of Avon Trails argument is that this interpretation is clearly erroneous, specifically arguing that "[the Covenant is one sentence containing several conjunctions including 'and' and 'or; however the pertinent conjunctions are the two instances of 'unless.' The Covenant absolutely disallows the parking of any trailer within the 'Property," " which includes the lot owned by Homeier, and "two exceptions triggered by the respective uses of 'unless' only apply: 1. If the trailer is fully enclosed in a garage (Garage Exception'); or 2. If the trailer's use is necessary and incident to the Declarant's, Builder's or Association's business (Subdivision Development Exception')." Appellant's Brief at 12-18. We agree with this interpretation.

As noted, the Covenant appears in Article VI of the Declaration, titled "Use, Restrictions, and Architectural Control." Appellant's Appendix at 20. Article VI contains twenty-seven sections which restrict not only the Declarant, Builder, and Association, but also the lot owners. For instance, Section 6.3 is titled "Leasing" and states that "[alny Lot may be leased by its Owner." Id. at 21. Section 6.5, titled "Outside Storage," provides: "All clotheslines, equipment, garbage cans, service yards, woodpiles or storage piles shall be kept from view of neighboring homes and streets. All rubbish, trash or garbage shall be regularly removed from the premises, and shall not be allowed to accumulate thereon. Trash must be stored in enclosed containers." Id. Again, the Covenant states:

Section 6.18 Semi-tractor trucks, trailers, etc. No semi-tractor trucks, semi-trucks, semi-tractor trailers, boats, campers, mobile homes, disabled vehicles, and/or trailers shall be permitted to park on the Property or a Lot unless fully enclosed in a garage, or unless the same is necessary and incident to the Declarant's, builder's or Association's business on the Property.

Id. at 22 (emphases added).

It is apparent that the Covenant is intended to apply not only to the Declarant, Builder, and Association, but also to others bound by the Declaration including Owners of a Lot such as Homeier. Many of the named items in the Covenant, including boats, campers, mobile homes, and disabled vehicles, appear to be primarily directed to Owners rather than the De-clarant, Builder, and Avon Trails, for it is unlikely that one of those entities would place such an item on the Subdivision's premises. More importantly, however, Avon Trails' interpretation of the Covenant's construction is correct. The Covenant begins by suceinetly stating that "No semi-tractor trucks, semi-trucks, semi-tractor trailers, boats, campers, mobile homes, disabled vehicles, and/or trailers shall be permitted to park on the Property or a Lot...." Id. at 22. It then provides for two exceptions, identified by Avon Trails as the Garage Exception and the Subdivision Development Exception, each of which is preceded by the conjunction "unless." Id. Language contained following the word "unless" in the Subdivision Development Exception, including identifying the exception as applying to the De-clarant, Builder, and Avon Trails, does not limit the main portion of the provision from applying to other parties bound by the Declaration including Owners. Indeed, such logic is circular in that if this language was intended to limit the Covenant to those three entities, then the Covenant as a whole would have little meaning because it would apply only to the very same entities it exempts. This reasoning is also at odds with the Garage Exception, for not only is it unlikely that a semi-tractor truck or semi-tractor trailer would be fully enclosed in a garage located in the Subdivision, it is also unclear why those entities would be required to enclose such items in garages and where such garages would be located. The Covenant is applicable to Homeier, and the court's Order that it does not is clearly erroneous.

Having so determined, we would normally examine the elements of a preliminary injunction, determine whether Avon Trails was so entitled, and remand for further proceedings. However, the parties have agreed to a settlement, and indeed Homeier has relied on such agreement by opting to not challenge Avon Trails' arguments on appeal. Recognizing both this reliance by Homeier and our conclusion that the trial court's interpretation of the Covenant was clearly erroneous, and that, accordingly, it was error for the court to refuse to accept the parties' Joint Motion, we remand with instructions to the court to vacate its original order and enter an order substituting the applicable language of the Joint Motion, including that Homeier agrees that the Declaration is valid and enforceable as it applies to her, that she agrees to a permanent injunction against violating the Covenant so long as it is applicable to her, and that Avon Trails waives any claim it possesses to reimbursement of its court costs and legal fees pursuant to Article 10, Section 1 of the Declaration so long as the terms of the Joint Motion are faithfully adhered to by Homeier.

CONCLUSION

For the foregoing reasons, we reverse the court's Order After Hearing and remand for proceedings consistent with this opinion.

Reversed and remanded.

ROBB, C.J., and BARNES, J., concur.

      . Avon Trails also appeals orders entered by the court on May 3, 2013 and July 1, 2013, in which, as will be explained further below, the court effectively ruled that the Order After Hearing remained in effect and took no action.
      Also, we note that the appellant's brief refers to Homeier in its caption as "Kellie Hom-eier n/k/a Kellie Homeier-Brock," and the brief, as well as certain trial court filings, similarly refer to her as Homeier-Brock. However, the name of the appellee as it appears on our docket is Kellie Homeier, and accordingly we will refer to her simply as Homeier.

      . We note that the court's May 1, 2013 order was file stamped on May 1, 2013 and entered on the CCS on May 3, 2013.


author: PYLE, Judge.

text:
    DANA COMPANIES, LLC, Appellant-Respondent, v. CHAFFEE RENTALS, a/k/a, Chaffee Rentals and Storage, BRC Rubber Group, Inc., Charles V. Chaffee, Karen J. Chaffee and Clifford Chaffee, Appellee-Petitioner.
    No. 92A03-1208-CC-358.
    Court of Appeals of Indiana.
    Dec. 19, 2013.

      George M. Plews, Todd G. Relue, Plews Shadley Racher & Braun, Indianapolis, IN, Attorneys for Appellant.
    N. Reed Silliman, Karen 'T. Moses, Faegre Baker Daniels LLP, Fort Wayne, IN, Attorneys for Appellee.
   MEMORANDUM DECISION

PYLE, Judge.

STATEMENT OF THE CASE

Dana Companies, LLC, ("Dana") appeals their damages awarded in their lawsuit against Chaffee Rentals, Charles V. Chaffee, Karen J. Chaffee, Clifford Chaf-fee, and BRC Rubber Group, Inc., (collectively, "BRC"). On cross-appeal, BRC claims that the trial court's findings do not support its judgment and that Dana should not recover any damages.

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

ISSUES

1. Whether the trial court properly determined that the fortuity principle did not apply to Dana's claim.
2. Whether Dana is entitled to recover any damages from BRC in light of their negotiated settlement agreement.
3. Whether Dana is entitled to prejudgment interest.

FACTS

Dana is in the business of manufacturing and engineering parts for the automotive industry. From 1963 through 1983, Dana occupied a plant ("the Plant") located in Churubusco, Indiana. As a part of their manufacturing process and general plant operations, Dana generated hazardous waste. Thus, Dana was subject to regulations issued by the Environmental Protec tion Agency ("EPA") under the Hazardous Waste and Consolidated Permit Regulations of the Resource Conservation and Recovery Act ("RCRA"). In November 1980, Dana submitted an application to the EPA for a Part A permit that would allow them to treat and store hazardous waste at the Plant. Dana did not complete subsequent application requirements in a timely manner. As a result, the EPA brought an action against Dana. The EPA and Dana entered into a consent agreement that allowed Dana to operate as if it had acquired interim status. The EPA further required Dana to comply with all permitted and interim status regulations under RCRA. As Dana became more familiar with the requirements of compliance with RCRA, the company believed that RCRA did not apply to its activities at the Plant. In January of 1984, Dana notified the State of Indiana that it had ceased operations at the Plant. In April of 1985, the State of Indiana notified Dana that it had to submit a closure plan for the Plant. Instead, Dana sold the Plant to Chaffee Rentals in May of 1985, who in turn, rented the property to BRC. At the time of the sale, Dana did not tell BRC that the property was under EPA supervision.

BRC manufactures rubber seals and other rubber parts for automobiles. Shortly after BRC began operations at the facility, the local water treatment company discovered elevated levels of polychlorinat-ed biphenyls ("PCBs") that was traced back to BRC's facility. None of the manufacturing processes used by BRC included or produced PCBs. The Indiana Department of Environmental Management ("IDEM") conducted an investigation. IDEM collected sediment, soil, and water samples to identify the source of the PCBs. The results of IDEM's testing showed elevated PCB levels at the Plant.

Dana was notified of the findings, and its investigation confirmed the findings of IDEM. Dana also determined that the cause of the contamination was a heat transfer fluid used between 1964 and 1972 to heat rubber injection presses. Thereafter, with IDEM's knowledge, Dana conducted extensive remediation activities at the Plant and other affected areas from July 1986 to March of 1988. Having been responsible for the PCB contamination, Dana paid all of the costs of remediation. After Dana completed its work, IDEM prepared an agreement that would serve as a settlement of the PCB contamination. However, the agreement was never executed by Dana or IDEM.

On September 12, 1988, IDEM sent a violation letter to BRC directing it to submit a revised part A application or to comply with interim status requirements. BRC responded that the violation was improperly directed at them, as Dana was the original applicant on the Part A application. In March of 1990, the EPA issued a complaint and a compliance order to BRC directing them to cease all hazardous waste operations, comply with all permit application procedures, or submit an appropriate closure plan for those areas of the plant treating hazardous waste. In turn, BRC filed a lawsuit against Dana in October of 1991, seeking indemnity from the EPA action and possible sanctions. As a part of the EPA investigation, a visual site inspection ("VSI") began on May 6, 1992. Before the inspection was completed, Dana and BRC entered into a settlement agreement resolving BRC's lawsuit and the EPA administrative actions. The agreement, in relevant part, provided:

AGREEMENT
In exchange for good and valuable consideration recited herein, the receipt of which is acknowledged, it is hereby agreed:
1. Dana indemnifiese BRC Parties from all liability, incurred after the date of this agreement, that they may suffer as a result of judgments or settlements against them in the administrative or civil actions identified above and in any subsequent administrative, civil or criminal action brought against BRC Parties arising out of or relating solely to Dana's alleged treatment, storage or disposal of hazardous waste or hazardous substances at the Plant. Such indemnity shall include, without limitation, indemnity from penalties, closure, corrective action, disposal and cleanup activities, and shall continue in full foree and effect until June 1, 2007.
2. BRC Parties agree to notify Dana in writing, by certified mail, return receipt requested, at its address as stated in this Agreement, within 20 days of receipt of an action specified in paragraph 1 giving rise to an indemnity claim. BRC Parties agree to allow Dana full control over the defense, including without limitation the compromise or settlement of any matter in which BRC Parties may claim as covered by this Agreement. Dana agrees to keep BRC Parties fully informed about the defense, including but not limited to compromise and settlement.
3. Dana agrees to assume BRC Parties' defense in the pending EPA administrative proceeding, In the Matters of Dana Corporation-Victor Products and BRC Rubber Group, Docket Nos. V-W-90-R-14 and V-W-90-R-15 on the date of execution of this Agreement. For this pending claim and for any subsequent claim on which BRC Parties seeks indemnification, Dana shall have the right to defend BRC and to select counsel of its choice. Except for the pending EPA administrative proceeding specified above, Dana shall not have the obligation to defend BRC Parties on any claims in which the seope of indemnification is in dispute. BRC Parties agree to waive any conflict of interest which such counsel may have in accepting such representation, or to which such counsel may later become subject to by said representation.
4. BRC Parties shall hold Dana harmless for, and the extent of Dana's indemnification under this Agreement shall not extend to, any claims for violations, fines, pollution, remediation work, contaminations, natural resource damage, personal injury or property damage arising out of acts, conduct or omissions at the Plant since May 21, 1985, unless such claims arise out of Dana's alleged treatment, storage, or disposal of hazardous waste or hazardous substances activities at the Plant.
# * *t * * *
8. Dana and BRC Parties and their attorneys shall keep strictly confidential the existence and terms of this Agreement and shall not disclose the existence or terms of this Agreement, unless expressly required by law or required to fully enforce this Agreement. In addition, BRC parties may disclose the existence and terms of this Agreement to prospective purchasers of the Plant upon 48 hours advance notice to Dana and after execution by the prospective purchaser of a confidentiality agreement prohibiting the disclosure of the existence or terms of this Agreement.

(Ex. Index, Vol. III, Ex. 5). Dana and BRC executed the settlement agreement in early August 1992. The EPA concluded its VSI and issued its report in October of 1992. The report identified twenty-nine (29) solid waste management units ("SWMU") and six areas of concern ("AOC") which the EPA recommended for further investigation and possible remediation.

On June 22, 1994, the administrative law judge ("ALJ") in the original action brought by the EPA against Dana and BRC issued a ruling on Dana's and BRC's motions for summary judgment and the EPA's motion for an accelerated decision against Dana and BRC. As to BRC, the ALJ found that BRC had no knowledge of the Plant's interim status at the time it acquired the Plant and that "BRC has not conducted any operations at the facility in violation of RCRA." (Ex. Index, Vol. III, Ex. 7). As to Dana, the ALJ found Dana liable for violation of the applicable statutes and regulations. However, the civil penalty that Dana was required to pay was disputed and was not resolved under the accelerated decision.

In August of 1996, BRC contacted Dana and requested that Dana investigate the areas that the EPA recommended for further action in the VSI. Dana replied that while it intended to "abide by the terms of the Settlement Agreement ...," Dana had no obligation to indemnify BRC unless an administrative action was brought against it. (Ex. Index, Vol. III, Ex. 13). As a result, BRC decided to apply to IDEM's voluntary remediation program ("VRP"). BRC invited Dana to participate as well; Dana refused, stating it did not believe participation in the program would reduce the possibility of subsequent action by IDEM. IDEM accepted BRC into the remediation program. During the preliminary stages of the VRP, IDEM project manager Aundrea Robertson Habeck ("Ha-beck") learned from a contact at BRC that an agreement existed requiring Dana to indemnify BRC if an enforcement action arose. BRC hired a firm to take samples at the plant and develop an analysis plan. The cost to BRC was over $65,000. BRC failed to meet the additional requirements of the VRP and was withdrawn by IDEM in July of 1999.

In April of 2000, IDEM issued a Notice of Violation ("NOV") to BRC because of the level of PCB contamination at the site and the fact that BRC did not comply with the requirements of the VRP. Pursuant to the negotiated settlement agreement, BRC sought indemnification and submitted the NOV to Dana. Dana took over the resolution of the NOV and negotiated an agreement with IDEM. The Agreed Order required further investigation and, if necessary, remediation of the same areas identified by the EPA's 1992 VSI. The Agreed Order was signed by representatives of Dana and BRC; it was approved by IDEM on March 24, 2003. Dana retained RMT Inc. ("RMT") to perform the work required by the Agreed Order. Dana spent a total of $640,579.30 in performing the required work. Dana instructed RMT to allocate the costs of the work between Dana and BRC. Where PCB contamination was found, RMT allocated all of the costs to Dana. Where no contamination was found and both BRC and Dana used a particular area, the allocations of costs were equally split between the two. RMT allocated the cost of remediating the trash burning area and the underground storage tanks entirely to BRC. Dana claimed that it never used the trash burning area in its operations. It further claimed that the cost associated with the storage tanks should have been allocated to BRC because it assumed the ownership of the tanks when purchasing the property.

Dana finished the remediation work in 2005 and, on March 16, 2005, submitted a letter to BRC demanding reimbursement for a portion of the costs incurred. BRC did not pay any of the fees Dana demanded, claiming that the Settlement Agreement required Dana to indemnify BRC for the costs. In February 2006, Dana filed a complaint against BRC for breach of the Settlement Agreement. Dana filed an amended complaint in April of 2009 adding claims under the Environmental Legal Act (Ind.Code § 13-30-9-1) and for unjust enrichment. Dana filed a second amended complaint in October of 2010, modifying the amount of damages sought from $189,000 to $1,016,286.91.

The case was heard by bench trial on February 9, 10, and 11, 2011. Considering the facts and evidence submitted, the trial court made the following Conclusions of Law:

1. In August 1992, Dana and BRC executed a Settlement Agreement ("the Agreement") to resolve any disputes between them regarding the liability and damages associated with the EPA actions and BRC's purchase of the property on April 8, 1985. The Agreement is the sole basis for a recovery by Dana against BRC. The other theories propounded by Dana are inapplicable.
2. In the Agreement, Dana undertook an indemnity obligation in Section 1 for "subsequent administrative, civil{,] or criminal action."
3. Dana's failure to obtain a closure letter terminating RCRA oversight and its release of hazardous materials at the plant caused the application of Paragraph 1 of the Agreement to be effective.
4. BRC was fully aware that withdrawal from the VRP program would create a red flag causing corrective action and remediation activity to be required by IDEM.
5. While withdrawal from the VRP was a prudent business decision by BRC to accelerate the resolution of environmental issues affecting the plant, the decision also caused the application of Paragraph 4 of the Agreement to become effective to the extent that any remediation activity required by IDEM resulted from BRC's conduct subsequent to May 21, 1985, would be BRC's responsibility.
6. The allocation of 100% to BRC of the costs associated with SWMU 4 is reasonable and correct. As to SWMU 2, SWMU 14, SWMU 26, SWMU 27, AOC "C", AOC "E", and AOC "P"[,] the activities of the parties before and after May 21, 1985 are intertwined to the extent that a 50% allocation to BRC is reasonable and correct.
7. Based upon these allocations, Dana is entitled to recover from BRC $73,294.69 for investigation and remediation work performed at the plant.
8. In the terms of the indemnification provisions of the Agreement, the Court sees no distinction between the cost for investigation and remediation and the cost for administration incurred by Dana in connection with the NOV. $73,294.69 represents 17.73% of the total sum expended by Dana for investigation and remediation. Therefore, Dana is entitled to recover 17.73% of the administrative cost from BRC or $40,291.78.
9. Pursuant to Paragraph 4 of the Agreement, Dana is entitled to indemnification in the total sum of $113,586.47.
10. Dana made a demand for payment (of a greater sum) on March 16, 2005, nearly seven years ago. To date, BRC has maintained that nothing is owed to Dana. An award of prejudgment interest at 8.0% is appropriate. However, the period may not exceed 48 months.
11. Prejudgment interest is computed as follows:
Year one: $9,086.92 p
Year two: $9,818.87 5
Year three: $10,598.98
Year four: $11,466.90
Total: $40,946.67
12. There shall be no award of attorney fees.

{App. 41).

On February 29, 2012, BRC filed a motion to correct error alleging that the trial court's conclusions were not supported by its factual findings. The court denied BRC's motion but decided, sua sponte, that the award of prejudgment interest was in error. The trial court removed the added prejudgment interest from the award of damages.

DECISION

Dana and BRC, through its eross-ap-peal, essentially claim that the trial court's judgment is not supported by its findings. Specifically, Dana claims that the findings do not support the judgment because: (1) BRC breached the settlement agreement; (2) the trial court misinterpreted the settlement agreement; and (8) BRC's indemnification claim was not fortuitous. Dana also claims that the trial court erred in not awarding prejudgment interest.

BRC, on the other hand, argues that because the trial court found that Dana was responsible for the PCB contamination and failed to properly close the area as required by RCRA, the trial court cannot also find BRC responsible for any of the remediation work done by Dana. BRC claims that in apportioning liability to them, the trial court expanded the terms of the settlement agreement.

The trial court entered findings of fact and conclusions of law. The record shows that while there was a discussion between the court and parties regarding the submission of materials prior to its ruling, neither party made a written request for findings of fact or conclusions thereon. Accordingly, our standard of review is as follows:

Where the trial court enters specific findings sua sponte ... the specific findings control our review and the judgment only as to the issues those specific findings cover. Where there are no specific findings, a general judgment standard applies and we may affirm on any legal theory supported by the evidence adduced at trial.

Argonaut Ins. Co. v. Jones, 953 N.E.2d 608, 614 (Ind.Ct.App.2011), trans. denied.

We apply the following two-tier standard of review to sua sponte findings and conclusions: whether the evidence supports the findings, and whether the findings support the judgment. Findings and conclusions will be set aside only if they are clearly erroneous, that is, when the record contains no facts or inferences supporting them. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made. We consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will neither reweigh the evidence nor assess witness credibility.

Barkwill v. Cornelia H. Barkwill Revocable Trust, 902 N.E.2d 836, 839 (Ind.Ct.App.2009) (internal citations and quotation marks omitted), trans. denied. "[ we defer substantially to findings of fact, we do not do so to conclusions of law." McCauley v. Harris, 928 N.E.2d 309, 313 (Ind.Ct.App.2010) (internal citation omitted), trams. denied. "We evaluate questions of law de novo and owe no deference to a trial court's determination of such questions." Id.

A. Fortuity

Dana argues that the trial court erred by concluding that the doctrine of fortuity did not apply to its claim. Specifically, Dana claims that BRC, rather than an unexpected, unintended action or event, caused IDEM to issue its NOV, which triggered the settlement agreement's indemnity clause. We agree with the trial court; fortuity is not applicable in this case.

In relying on the doctrine of fortuity, Dana attempts to use the terms "insurance" and "indemnity" interchangeably. Indiana courts have generally defined "insurance" as a contract of indemnity. City of Gary v. Allstate Ins. Co., 612 N.E.2d 115 (Ind.1998); Motorists Mut. Ins. Co. v. Morris, 654 N.E.2d 861 (Ind.Ct.App.1995). Indiana Code § 27-1-2-3(a) defines "insurance" as:

a contract of insurance or an agreement by which one party, for consideration, promises to pay money or its equivalent or to do an act valuable to the insured upon the destruction, loss or injury of something in which the other party has a pecuniary interest, or in consideration of a price paid, adequate to the risk, becomes security to the other against loss by certain specified risks; to grant indemnity or security against loss for a consideration.

"Implicit in the concept of insurance is that the loss oceur as a result of an event that is fortuitous, rather than planned, intended, or anticipated." General Housewares Corp. v. National Surety Corp., 741 N.E.2d 408, 414-15 (Ind.Ct.App.2000) (quoting 7 Les R. Russ and Thomas F. Segalla, Couch On Insurance, § 102:7 at 17 (3d ed. 1997)). However, under the facts of this case, "indemnity" is appropriately defined as follows:

Indemnity in its most basic sense means reimbursement and may lie when one party discharges a liability which another rightfully should have assumed, and it is based on the principle that everyone is responsible for his or her own wrongdoing, and if another person has been compelled to pay a judgment which ought to have been paid by the wrongdoer, then the loss should be shifted to the party whose negligence or tortious act caused the loss.

41 Am.Jur.2d Indemnity § 1 (2013).

Though insurance is generally defined as a contract of indemnity, the facts of this case show that every contract which contains an indemnity clause is not a contract of insurance. BRC did not seek to "insure" its business activities through Dana. Instead, Dana failed to notify BRC that the Plant was under EPA supervision. Once the EPA cited BRC for violations which it was not responsible for, BRC sued Dana. Simply stated, the settlement agreement was born out of BRC's desire to seek reimbursement or to properly assign the cleanup costs to Dana for its use of PCBs and its subsequent omissions in complying with RCRA. BRC did not offer valuable consideration to Dana in exchange for payment for a future loss. Indemnity in this context is more geared toward the appropriate parties taking responsibility for the costs associated with conduct that has already occurred. Accordingly, the trial court properly concluded that the principle of fortuity did not apply.

B. Breach of Contract & Damages

Dana argues that the trial court erred by not awarding it the full amount of damages it sought. Specifically, Dana claims that because BRC disclosed the existence of the settlement agreement, presented a deceptive claim for indemnity, and refused to honor its "hold harmless" obligations under the settlement agreement, the trial court should have awarded the requested amount. In turn, BRC argues that Dana presented no evidence that any of its actions caused damage to Dana.

The measure of damages in a breach of contract case is the loss actually suffered by the breach. Sammons Communications of Indiana, Inc. v. Larco Cable Const., 691 N.E.2d 496, 498 (Ind.Ct.App.1998), trans. denied. To recover under a breach of contract claim, Dana must show that its damages flowed directly and naturally from the breach. Id. Although no particular degree of certainty is required in awarding damages, the award must be within the seope of the evidence. Id. Damages may not be awarded on guess or speculation, but must be ascertainable with reasonable certainty. Ind. & Mich. Elec. v. Terre Houte Indus., 507 N.E.2d 588, 601 (Ind.Ct.App.1987), trans. denied.

Regarding the breach of the confidentiality clause of the settlement agreement, Dana presented evidence of a possible breach but failed to show how any of the money spent on the remediation at the plant was a direct result of disclosing the existence of the settlement agreement. Mike Sickles from IDEM testified that the NOV was issued in response to the level of PCB contamination at the site and BRC's withdrawal from the VRP. Thus, it appears from the record that knowledge of the settlement agreement played no role in IDEM issuing the NOV.

As to the rest of its claims, Dana relies on the case of Fowler v. Campbell, 612 N.E.2d 596 (Ind.Ct.App.1993) to support its claim of full damages sought because BRC's actions were a substantial cause of the breach of the settlement agreement.

In Fowler, the Campbells hired Fowler to build a custom house, including a septic system. Before entering into a contract with Fowler, the Campbells consulted with their homeowner's association and the local department of health to ensure the septic system complied with association and department standards. Once both entities approved the plans, a contract was executed providing that Fowler would build the house, including the septic system, according to the approved plans. After the Campbells moved in, their septic system failed three times, with sewage backing up in their home. Each time Fowler performed repairs, he found debris in the septic system. Fowler told the Campbells that this debris prevented the septic system from functioning properly. During the third repair, Fowler installed a new septic tank and warning light on the system. It was then that the Campbells discovered that the septic system was not installed according to their contract. Fowler fixed the septic system and sewage no longer backed up in the Campbell's home, though sewage water continued to leak into the Campbell's driveway, yard, and lake behind their house. The Camp-bells sued Fowler for breach of contract. After a bench trial, the trial court entered judgment for the Campbells.

On appeal, Fowler claimed that the Campbell's misuse of the septic system, and not his failure to install it according to plan, caused the damages. In affirming the trial court's judgment, we stated that where there are multiple causes of injury arising from a breach of contract, Indiana follows the common law test of causation in contract actions; that is, we decide if a breach was a substantial factor in bringing about the harm, not whether other causes may have contributed. Fowler, 612 N.E.2d at 602.

Here, while BRC's entry into the VRP may have contributed to bringing any remaining contamination at the Plant to IDEM's attention, the evidence shows that it was the high levels of PCB and Dana's failure to fully comply with RCRA that were the substantial causes of IDEM issuing the NOV and the subsequent remediation costs. Accordingly, Dana's reliance on Fowler is misplaced.

C. The Settlement Agreement

Dana claims that the trial court erred in its allocation of damages by not properly interpreting the settlement agreement. Specifically, Dana claims that the trial court incorrectly interpreted the word "solely" in concluding that Dana's indemnity obligations had been triggered. In its cross appeal, BRC argues that it is not liable for any of the costs because the settlement agreement, which the trial court has concluded is the sole basis for recovery, provides no basis for the allocation of costs based on whether either BRC or Dana used an area of the plant.

We observe first that our courts strongly favor settlement agreements in resolving disputes and controversies. This is because settlements allow our courts to operate more efficiently and equally important, allow the parties to fashion the outcome of their disputes through mutual agreement.
Interpreting and construing contract provisions is a task often undertaken by our courts. When reviewing a trial court's ruling in that regard, our task is essentially the same as that employed by the trial court. We assign words and phrases employed in a contract their plain and ordinary meaning, unless we conclude the terms are ambiguous. Where the terms of a contract are clear and unambiguous, the terms are conclusive and we will not construe the contract or look at extrinsic evidence but will merely apply the contractual provisions. The terms of a contract are not ambiguous merely because controversy exists between the parties concerning the proper interpretation.

Travelers Indent. Co. v. P.R. Mallory & Co., 772 N.E.2d 479, 485 (Ind.Ct.App.2002) (internal citations and quotations omitted).

Here, the trial court determined in its conclusions of law that the settlement agreement was the only basis for recovery. Yet, the trial court concluded that splitting the allocation of costs between the parties was reasonable because Dana and BRC used certain areas of the plant during the time period in question. This conclusion would be appropriate if the settlement agreement was ambiguous as to which party was responsible for costs in the event a claim was brought. However, the terms of the settlement agreement, particularly the indemnity and hold harmless clauses, are clear and unambiguous as to these issues. Per our standard of review, we must simply apply the contract to the facts at hand.

The seope of Dana's indemnity to BRC if a claim arises is clearly stated: "Such indemnity shall include, without limitation, indemnity from penalties, closure, corrective action, disposal and clean-up activities, and shall continue in full force and effect until June 1, 2007." (Ex. Index, Vol. III, Ex. 5). The only thing limiting Dana's indemnification was the hold harmless clause in paragraph 4 of the settlement agreement. BRC was to hold Dana harmless:

for violations, fines, pollution, remediation work, contamination, natural resource damage, personal injury or property damage arising out of acts, conduct or omissions at the Plant since May 21, 1985, unless such claims arise out of Dana's alleged treatment, storage or disposal of hazardous waste or hazardous substances activities at the Plant.

(Ex. Index, Vol. III, Ex. 5). Of all the areas investigated and remediated, SWMU 4, the trash burning area, was the only area of the plant used solely by BRC; Dana never used this area during the time it operated the plant. Confining recovery of damages to the settlement agreement, and effecting the intent of the parties as stated therein, BRC should hold Dana harmless for these costs. We find that the trial court erred by not confining its allocation of costs to the four corners of the settlement agreement. Accordingly, we affirm the trial court's award of damages to Dana, but reverse the amount awarded. Dana is entitled to damages of $3,608.87 in investigative costs and administrative costs of $1,818.01, for a total damage award of $5,426.88.

D. Prejudgment Interest

Dana claims that the trial court erred in not awarding prejudgment interest to damages. BRC contends that the damages were not easily ascertainable, thus preventing the award of prejudgment interest.

We review a decision regarding the award of prejudgment interest for an abuse of discretion. Bopp v. Brames, 713 N.E.2d 866 (Ind.Ct.App.1999), trans. denied. "An award of prejudgment interest rests on a factual determination and this Court may only consider the evidence most favorable to the appellee." Board of Sch. Trustees of Baugo Community Schools v. Indiana Ed. Employment Relations Bd., 412 N.E.2d 807, 811 (Ind.Ct.App.1980).

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." Kummerer v. Marshall, 971 N.E.2d 198, 201 (Ind.Ct.App.2012) (quoting Olcott Int'l & Co. v. Micro Data Base Sys., Inc., 793 N.E.2d 1063, 1078 (Ind.Ct.App.2003), trans. denied), 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 mechanies' 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.

Here, where the trial court's allocation of liability was split between the parties based upon whether RMT'"s method was reasonable, prejudgment interest would normally not be appropriate. However, allocating costs according to the terms of the settlement agreement, BRC was to hold Dana harmless for conduct at the plant after May 12, 1985. Thus, BRC would be responsible for the cost of investigating and remediating the trash burning area. This amount was readily ascertainable at $5,426.88. "Once it appears that damages can be ascertained with reasonable precision, an award of prejudgment interest is mandatory." Hayes v. Chapman, 894 N.E.2d 1047, 1054-55 (Ind.Ct.App.2008), trans. denied. Per Ind.Code § 24-4.6-1-103, an interest rate of eight percent (8%) per year for forty-eight (48) months is allowed on the damages for a prejudgment interest award of $1,956.32.

Accordingly, we affirm the trial court's judgment in favor of Dana, but reverse and remand with instructions to award damages and prejudgment interest consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

KIRSCH, J., and VAIDIK, J., concur.

      . Passed on October 21, 1976, RCRA is the primary law used by the EPA to regulate the disposal of solid and hazardous waste.

      . [The] EPA recognized that it would be impossible for the Agency and authorized states to issue permits to all hazardous waste management facilities before the RCRA Subtitle C program became effective in November 1980. In RCRA § 3005(e), Congress established provisions to treat certain facilities as though they had been issued a permit until final administrative action was taken on their permit applications. This statutory grant of a permit is referred to as "interim status."
      Envtl. Prot. Agency, Intropuctron to PERMITS AND Interim Stratus (2005).

      . PCBs belong to a broad family of man-made organic chemicals known as chlorinated hydrocarbons. PCBs were domestically manufactured from 1929 until their manufacture was banned in 1979. They have a range of toxicity and vary in consistency from thin, light-colored liquids to yellow or black waxy solids. Due to their non-flammability, chemical stability, high boiling point, and electrical insulating properties, PCBs were used in hundreds of industrial and commercial applications including electrical, heat transfer, and hydraulic equipment; as plasticizers in paints, plastics, and rubber products; in pigments, dyes, and carbouless copy paper; and many other industrial applications.
      Polychlorinated Biphenyls (PCBs), http://www. epa.gov/epawaste/hazard/tsd/pebs/pubs/about. htm (last visited October 23, 2013).

      . The Voluntary Remediation Program was created by statute "to provide an alternative procedure to assure compliance with the law and to encourage the voluntary remediation of hazardous substances and petroleum." Ind.Code § 13-25-5-1.

      . At trial, Habeck testified that either Mr. Chaffee (not clarifying if it was Charles or Clifford Chaffee), Tom Maher, or Marty Gau-ghan, both employees of BRC, informed her of the existence of the agreement.

      . In the alternative, Dana claimed that it was entitled to reimbursement for the costs of removing underground storage tanks as a matter of law. Dana relies on sections of the Indiana Fire Code and Petroleum Facility Statute in making this claim. However, as we found with Dana's claim of lack of fortuity, and as the trial court stated in its conclusions of law, the settlement agreement is binding and is the sole basis for recovery in this case.


text:
    In the Matter of Jeremy S. BRENMAN, Respondent.
    No. 53S00-1212-DI-707.
    Supreme Court of Indiana.
    Jan. 23, 2014.
   PUBLISHED ORDER CONVERTING SUSPENSION FOR NONCOOPERATION WITH THE DISCIPLINARY PROCESS TO INDEFINITE SUSPENSION

On May 16, 2018, pursuant to Indiana Admission and Discipline Rule 23(10)(f), this Court suspended Respondent from the practice of law in this State for failing to cooperate with the Disciplinary Commission concerning a grievance, No. 13-0220, filed against Respondent. The Disciplinary Commission has now moved to convert Respondent's suspension to an indefinite suspension from the practice of law pursuant to Admission and Discipline Rule 23(10)(f)(4). Respondent has not responded to the Commission's motion to convert the current suspension.

The Court finds that more than six months have passed since Respondent was suspended due to noneooperation with the disciplinary process. Accordingly, the Court concludes that Respondent's suspension should be converted to an indefinite suspension from the practice of law pursuant to Admission and Discipline Rule 23(10)(f)(4).

IT IS THEREFORE ORDERED that Respondent's eurrent suspension from the practice of law for failure to cooperate with the disciplinary process is converted to an indefinite suspension, effective immediately. Respondent is ordered to fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26). To be readmitted to the practice ° of law in this State, Respondent must cure the causes of all suspensions in effect and successfully petition this Court for reinstatement pursuant to Admission and Discipline Rule 23(4) and (18).

The Clerk of this Court is directed to forward notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys; to the Disciplinary Commission; and to all other entities entitled to notice under Admission and Discipline Rule 23(8)(d). The Clerk is further directed to post this order to the Court's website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions.

All Justices concur.


text:
    In the Matter of Joshua R. PAYTON, Respondent.
    No. 71S00-1311-DI-771.
    Supreme Court of Indiana.
    Jan. 23, 2014.
   PUBLISHED ORDER OF INTERIM SUSPENSION UPON NOTICE OF GUILTY FINDING

The Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(11.1)(a), has filed a "Notice of Guilty Finding and Request for Suspension," asking that Respondent be suspended from the practice of law in this State, pending further order of this Court or final resolution of any resulting disciplinary action, due to Respondent being found guilty of a crime punishable as a felony.

The Court, being duly advised and upon consideration of all materials submitted, now finds that Respondent accepted a plea offer in the state of Michigan and was found guilty of Fleeing or Eluding a Police Officer in the Fourth Degree, a class G felony.

IT IS THEREFORE ORDERED that Respondent is suspended from the practice of law in this State, effective immediately. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26). The interim suspension shall continue until further order of this Court or final resolution of any resulting disciplinary action, provided no other suspension is in effect.

The Clerk of this Court is directed to send notice of this Order to Respondent or Respondent's attorney by certified or registered mail, to the Indiana Supreme Court Disciplinary Commission, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court's website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions.

All Justices concur.