source: Caselaw Access Project

author: RILEY, Judge.

license: Public Domain

text:
    In the Matter of the Termination of the Parent-Child Relationship of D.W., K.K., Ke.K., & L.W. (Minor Children) and J.K. (Father), Appellant-Respondent, v. The Indiana Department of Child Services, Appellee-Petitioner.
    No. 85A05-1109-JT-591.
    Court of Appeals of Indiana.
    June 6, 2012.

      M. Josh Petruniw, Tiede Metz & Downs, P.C., Wabash, IN, Attorney for Appellant.
    David E. Corey, Robert J. Henke, DCS Central Administration, Indianapolis, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Respondent, J.K. (Father), appeals the trial court’s termination of his parental rights to his minor children, D.W., K.K., Ke.K., and L.W.

We affirm.

ISSUE

Father raises one issue on appeal, which we restate as the following: Whether the trial court properly terminated his parental rights to his four children.

FACTS AND PROCEDURAL HISTORY

Father and H.W. (Mother) are the parents of four children, D.W., born June 6, 2004; K.K., born August 29, 2005; Ke.K., born July 17, 2008; and L.W., born May 28, 2010. On August 20, 2009, the Wabash County Department of Child Services (DCS) received a report that Mother had been sleeping in a car with her three eldest children, had been leaving her children with various people to care for them, did not have a home or a job, and had a substance abuse problem. The report also stated that Mother’s oldest child, D.W., was of school age and was not enrolled in school. At the time, Father was incarcerated. He had been incarcerated since April 1, 2009, and his earliest possible release date was September 2009.

On August 21, 2009, after investigating the report, DCS filed a petition alleging that the children were children in need of services (CHINS). On October 30, 2009, after the parents admitted to the allegations in the CHINS petition, the trial court found the children to be CHINS and placed them into foster care. Subsequently, on December 4, 2009, the trial court held a dispositional hearing whereby it maintained the children’s placement in foster care and ordered the parents to complete services and programs. Specifically, the trial court ordered Father to: (1) participate in a parenting and family functioning assessment and follow all recommendations; (2) submit to random drug and alcohol screens as requested with negative results for all substances; (3) participate in home-based services; and (4) receive individual counseling, among other requirements.

On May 28, 2010, during the course of the CHINS proceedings for the eldest three children, Mother gave birth to L.W. Mother’s drug screen at the hospital was positive for opiates, and L.W. exhibited signs of withdrawal. As a result, L.W. was transferred to the Neonatal Intensive Care Unit at Lutheran’s Children’s Hospital. On June 1, 2010, DCS filed a petition alleging that L.W. was a CHINS and placed him in foster care upon his release from the hospital. On July 22, 2010, the trial court conducted a hearing on the CHINS petition and found L.W. to be a CHINS after Mother and Father admitted to the allegations. In its dispositional order, the trial court ordered Father to participate in substantially the same services and programs in which it had ordered him to participate with respect to the CHINS proceedings relating to the elder three children.

Upon his release from incarceration, Father began participating in the programs and services as ordered by the trial court. He completed a substance abuse assessment at the Wabash Bowen Center (Bowen Center), a community mental health center. Based on the results of the assessment, Father was recommended to participate in intensive outpatient group sessions twice a week. Father never completed the program because he did not show up for any of the sessions.

Under the terms of the dispositional order, Father was required to submit to random drug screens. To fulfill this requirement, Father was instructed to call DCS daily to find out whether he needed to take a drug screen that day. If so, he was required to timely submit the screen. In the course of two years of CHINS proceedings, Father only complied with calling in, submitting to drug screens, and testing negative for drugs during three months: December 2009, July, 2010, and March 2010. During the remaining months, Father either did not call in or tested positive for drugs, including heroin, marijuana, alcohol, and opiates. At the termination hearing, Father admitted to using illegal drugs sporadically throughout the CHINS proceedings up to the first day of the trial court’s hearing to terminate his parental rights. Father also testified that his drug use caused him to be frequently tardy for work, which led to his dismissal and subsequent unemployment. DCS offered Father therapy for substance abuse, but Father did not participate in the offered therapy.

During the CHINS proceedings, Allison Esch (Esch), a rehabilitation service provider at the Bowen Center, provided Father with home-based services and supervised visits with the children. Father never completed the home-based services due to missed appointments. According to Esch, Father did not show a lot of motivation to follow through with the discussions in the appointments he did attend or to schedule further appointments. Similarly, Father’s attendance for court-ordered counseling at the Bowen Center was sporadic. Sometimes he would “hit four sessions in a row and then there [were] a couple of times where he hit two and then he missed several.” (Transcript p. 87).

In addition, there was a period of time where Father “disappeared” and did not have any contact or participation in visitation or any other court-ordered services. In January of 2011, the parents were evicted from their apartment due to their inability to pay the rent. They were required to contact family case manager, Sara Cole (FCM Cole), regarding any updates in their address or contact information, but they did not do so. Instead, FCM Cole did not hear from the parents from January 6, 2011, until the end of March, when she was able to locate them through relatives. During this period, Father did not visit the children or participate in any court-ordered services. When FCM Cole finally talked to Father, he explained that he had felt like the termination had already occurred and that he had been in “a very dark place” during those three months; he had been depressed, living in different places, and using drugs. (Tr. p. 54).

On March 21, 2011, DCS filed petitions requesting the termination of the parents’ parental rights towards all four minor children. On August 4 and September 13, 2011, the trial court held an evidentiary hearing. On September 13, Father testified that he was sober, although he admitted that he had still been using drugs around August 4-the first day of the hearing. Father also testified that he had separated from Mother, was living with his father, and was unemployed. At the conclusion of the hearing, the trial court terminated Mother and Father’s parental rights to the children.

Father now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Father argues that the trial court erred in terminating his parental rights because the trial court concluded that the conditions that resulted in the children’s removal from his custody would not be remedied. In support of his argument, Father claims that he did not cause the conditions that resulted in the children’s removal — the three older children were removed from Mother’s custody while Father was incarcerated, and L.W. was removed as a result of Mother’s use of narcotics during the pregnancy. Thus, according to Father, he cannot be held responsible for a failure to remedy those conditions.

We recognize that the Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children. In re J.S.O., 938 N.E.2d 271, 274 (Ind.Ct.App.2010). A parent’s interest in the care, custody, and control of his or her children is arguably one of the oldest of our fundamental liberty interests. Id. However, the trial court must subordinate the interests of the parents to those of the children when evaluating the circumstances surrounding a termination of a parent-child relationship. In re J.H., 911 N.E.2d 69, 73 (Ind.Ct.App.2009), trans. denied. Parental rights may therefore be terminated when the parents are unable or unwilling to meet their parental responsibilities. Id.

In reviewing termination proceedings on appeal, this court must not reweigh the evidence nor assess the credibility of the witnesses. Id. We consider only the evidence that supports the trial court’s decision and the reasonable inferences drawn therefrom. Id. Where, as here, the trial court has entered findings of fact and conclusions of law, we apply a two-tiered standard of review. Id. First, we determine whether the evidence supports the findings, and second, whether the findings support the conclusions of law. Id. In deference to the trial court’s position to assess the evidence, we set aside the trial court’s findings and judgment terminating the parent-child relationship only if they are clearly erroneous. Id.

In order to terminate Father’s parental rights, DCS was required to prove by clear and convincing evidence:

(B) that one of the following [was] true:
(i) There [was] a reasonable probability that the conditions that resulted in the child[ren]’s removal or the reasons for placement outside the home of the parents [would] not be remedied.
(ii) There [was] a reasonable probability that the continuation of the parent-child relationship [posed] a threat to the well-being of the child[ren],
(iii) The childfren] [had], on two (2) separate occasions, been adjudicated [ ] in need of services[.]
(C) that termination [was] in the best interests of the children].

Ind.Code § 31-S5-2-4(b)(2)(B), -(C). Clear and convincing evidence as a standard of proof requires the existence of a fact to “be highly probable.” Hardy v. Hardy, 910 N.E.2d 851, 859 (Ind.Ct.App.2009). It need not reveal that “the continued custody of the parent[ ] is wholly inadequate for the children’s very survival.” Bester, 839 N.E.2d at 148 (quoting Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1233 (Ind.1992)). Rather, it is sufficient to show that the children’s emotional and physical development are threatened by the parent’s custody. Id.

In essence, Father argues that the requirements of I.C. § 31-35-2-4(b)(2)(B)(i) (emphasis added) are disjunctive; a trial court may find that either “[t]here [was] a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents [would] not be remedied,” and a finding of one is independent of a finding of the other. Because the trial court here found that the conditions that resulted in the children’s removal would not be remedied but did not find that the reasons for placement outside the home of the parents would not be remedied, Father asserts that the trial court erred in terminating his parental rights because he is not at fault for the children’s removal from the home.

First, we note that although it was Mother’s actions that caused DCS to file petitions to adjudicate the children as CHINS, DCS also cited Father as a reason for the children’s removal. In the CHINS petition regarding the elder three children, DCS listed Father’s incarceration in support of a CHINS finding. In the CHINS petition for L.W., DCS noted that Father had tested positive for heroin on May 18, 2010 and May 19, 2010. In both CHINS hearings, Father admitted to the allegations, and his admissions were proper bases for the CHINS adjudications.

However, we do agree with the Father that the trial court did not provide sufficient findings that the cause for the removal of the older three children — Father’s incarceration — would not be remedied, as Father was released from incarceration shortly after the start of the CHINS proceedings and has remained free from incarceration since. Accordingly, we will address Father’s argument that I.C. § 31-35-2-4(b)(2)(B)(i) can be read in the disjunctive and that the trial court therefore did not conclude that the conditions that led to the children’s continued removal from Father’s home would not be remedied. Because this is an issue of first impression, we will rely on statutory interpretation of I.C. § 31-35-2-4.

The interpretation of a statute is a question of law reserved for the courts. In re J.Q., 836 N.E.2d 961, 964 (Ind.Ct.App.2005), reh’g denied. If a statute is unambiguous, ie., susceptible to only one meaning, we must give the statute its clear and plain meaning. In re S.B., 896 N.E.2d 1243, 1247 (Ind.Ct.App.2008). However, if a statute is susceptible to multiple interpretations, we must try to ascertain the legislature’s intent and interpret the statute so as to accomplish that intent. Stewart v. Randolph Cnty. Office of Family and Children, 804 N.E.2d 1207, 1211 (Ind.Ct.App.2004), trans. denied. In ascertaining the legislature’s intent, we consider the phraseology, nature, and design of the statute, and the consequences that flow from the reasonable alternative interpretations of the statute. In re K.B., 793 N.E.2d 1191, 1197 (Ind.Ct.App.2003). We presume that our legislature intended the statutory language to be applied in a logical manner consistent with the underlying goals and policy of the statute. In re S.B., 896 N.E.2d at 1247.

Pursuant to I.C. § 31-35-2-4(b)(2)(B),

DCS was required to prove by clear and convincing evidence:
(B) that one of the following [was] true:
(i) There [was] a reasonable probability that the conditions that resulted in the child[ren]’s removal or the reasons for placement outside the home of the parents [would] not be remedied.
(ii) There [was] a reasonable probability that the continuation of the parent-child relationship [posed] a threat to the well-being of the child[ren].
(iii) The children] [had], on two (2) separate occasions, been adjudicated [] in need of services[.]

Due to the “or” in § 31-35-2-4(b)(2)(B)(i), Father argues that § 31-35-2-4(b)(2)(B)(i) can be read as two independent statutory elements. In other words, the trial court may find that either there was a reasonable probability that the conditions that resulted in the children’s removal would not be remedied or the reasons for placement outside the home of the parents would not be remedied, and a finding of one will preclude a finding of the other absent an independent trial court conclusion. However, our interpretation of the legislature’s intent in drafting § 31-35-2-4(b)(2)(B) is that a finding that one part of subsection (i) has been fulfilled is equivalent to a finding that subsection (i) as a whole has been fulfilled.

In support of this interpretation, § 31-35-2-4(b)(2)(B) states that DCS must show that one of the following is true: subsection (i), subsection (ii), or subsection (iii). Although subsection (i) has two parts, the legislature does not refer to the two parts individually as being sufficient to fulfill § 31 — 35—2—4(b)(2)(B). The legislature refers to subsection (i) as a complete entity. If the legislature had intended the contents of subsection (i) to constitute two independent elements, it would have separated § 31 — 35—2^4 (b) (2) (B) into four separate subsections rather than three. Thus, we conclude that a finding as to one part of subsection (i) is a finding as to subsection (i) as a whole.

When we apply this interpretation to the facts of the instant case, we cannot agree with Father’s assertion that the trial court found that the conditions for removal would not be remedied but did not find that the conditions resulting in the continued placement outside of the home would not be remedied. Because the trial court’s determination that the conditions that led to the children’s removal would not be remedied was a conclusion that subsection (i) as a whole had been met, and the trial court did not need to independently state that the conditions that led to the children’s continued placement outside of the home would not be remedied. However, we still must address whether the trial court’s findings support the conclusion that the conditions that led to the children’s continued placement outside of the home would not be remedied.

When determining whether there is a reasonable probability that a parent will not remedy the conditions justifying a child’s removal from the home or continued placement outside of the home, the trial court must judge a parent’s fitness to care for his or her child at the time of the termination hearing. Rowlett v. Vanderburgh Cnty. Office of Family and Children, 841 N.E.2d 615, 621 (Ind.Ct.App.2006). The trial court must evaluate the parent’s habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation of the child. C T. v. Marion Cnty. Dept. of Child Services, 896 N.E.2d 571, 578 (Ind.Ct.App.2008), trans. denied. DCS is not required to rule out all possibilities of change; rather, it need only establish “that there is a reasonable probability that the parent’s behavior will not change.” Id. (quoting In re Kay L., 867 N.E.2d 236, 242 (Ind.Ct.App.2007)).

Here, the trial court found that:

Throughout these proceedings, Mother and Father have had a rocky relationship, however, for the most part, they remained together. They are or at least as of the August 4, 2011, hearing, were living in separate residences on the same street in Wabash. The future of their relationship is uncertain though Father has testified that he does not intend to get back together with Mother. The [c]ourt does not believe they will not get back together.
Both Mother and Father have substance abuse issues. Since the children were removed, each has tested positive, on numerous occasions, for a myriad of different substances including: Heroin, Methamphetamine, Hydrocodone, Methadone, and Marijuana. The record is replete with failed drug tests, missed appointments and failures to follow through with services ordered. Father further admitted to continued use of marijuana after the August 4, 2011, TPR hearing. He reports he is now clean, on his own, but acknowledges his addictions. While he has been repeatedly offered substance abuse services by the DCS, he has not followed through and is not participating in any. His “sobriety” is tenuous at best, particularly without any formal assistance and while he says he is now receptive to such assistance, his history indicates otherwise.
During the course of the CHINS proceedings, monthly progress reports were prepared either by DCS and/or service providers. Those monthly reports documented substantial non-compliance by both parents throughout these proceedings. ... Father, upon his release from jail, was likewise fairly compliant. Beginning in the latter part of 2010 and the early part of 2011, neither of the parties participated in any services. Father described this period as a dark time in his life. Drug use continued and the parties’ instability escalated. Fortunately, during this “dark time” when Mother and Father again resorted to behaviors that led to the removal of their children, the children were safely in foster care. While Father expresses his desire for one more chance, he has not availed himself of the numerous chances previously offered. Simply stated, his testimony that he now gets it and wants to take advantage of all services is too little too late. Father is not engaged in services, he does not have a home of his own, and he remains unemployed. Tellingly, at a review hearing for the three (3) oldest children on or about August 15, 2011, neither Mother [n]or Father attended that hearing, though they were provided with notice.

(Appellant’s App. pp. 8-9). Father disputes the trial court’s finding that he and Mother may get back together, but we conclude that the trial court had sufficient findings to support its conclusion even if we do not consider that finding. Father consistently failed to take advantage of services provided and ordered by the trial court and consistently failed to stay clean of drugs. Although Father testified that he has not used drugs in a month, this sobriety is, as the trial court stated, “tenuous” in light of his history. (Appellant’s App. p. 9). Accordingly, we determine that the trial court’s findings supported its conclusion that the conditions causing the children’s continued removal from Father’s home will not be remedied. As Father does not dispute any of the trial court’s other conclusions of law, we also find that the trial court did not err in terminating Father’s parental rights to his four minor children.

CONCLUSION

Based on the foregoing, we conclude that the trial court properly terminated Father’s parental rights to his four minor children.

Affirmed.

NAJAM, J. and DARDEN, J. concur.

      . Although the trial court also terminated Mother’s parental rights to the four minor children, she is not a party to this appeal.

      . I.C. § 31-15-2-4 was amended by 2012 Ind. Legis. Serv. P.L. 48-2012 (S.E.A. 286) (WEST), but the amendments are not relevant here and do not apply as the termination of Father’s parental rights occurred prior to the amendments.


author: NAJAM, Judge.

text:
    TDM FARMS, INC. OF NORTH CAROLINA and Dale Johnson, Appellants-Defendants, v. WILHOITE FAMILY FARM, LLC, Appellee-Plaintiff.
    No. 79A02-1101-PL-33.
    Court of Appeals of Indiana.
    June 7, 2012.

      Philip A. Whistler, Adam Arceneaux, Brian J. Paul, Ice Miller LLP, Indianapolis, IN, Scott P. Sullivan, Flynn & Sullivan, P.C., Indianapolis, IN, Attorneys for Appellants.
    Miriam E. Robeson, Flora, IN, Attorney for Amicus Curiae.
    Gary P. Price, Joseph P. Rómpala, Lewis & Kappes, P.C., Indianapolis, IN, Carol Sparks Drake, Lewis & Kappes, P.C., Zionsville, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

TDM Farms, Inc. of North Carolina and Dale Johnson (collectively, “TDM”) bring this interlocutory appeal from the trial court’s denial of their motion for summary judgment against Wilhoite Family Farm, LLC (“Wilhoite”). Wilhoite had filed suit against TDM alleging nuisance, negligence, and trespass after TDM intentionally introduced a highly contagious virus— the Porcine Reproductive and Respiratory Syndrome (“PRRS”) — to its hog farm, which then spread to Wilhoite’s neighboring hog farm and caused significant loss. On appeal, TDM contends that summary judgment is appropriate because Wilhoite’s claims are either preempted by the federal Virus-Serum Toxin Act (“the VSTA”), 21 U.S.C. §§ 151-159, or they are barred by Indiana’s Right to Farm Act, Ind.Code § 32-30-6-9.

We hold that Wilhoite’s claims are outside the scope of the VSTA and corresponding federal regulations. We also hold that the Right to Farm Act does not apply on these facts. Thus, we affirm the trial court’s denial of summary judgment.

FACTS AND PROCEDURAL HISTORY

TDM is a North Carolina-based commercial hog farming operation. Its primary breeding facilities and sow herds are in North Carolina. But once a pig is weaned from its mother, TDM ships the pig to a “finishing farm” where the pig is grown to market weight: TDM currently has about forty finishing farm contracts in Indiana, which, before 2008, included a contract with Dale Johnson for use of his farm in Tippecanoe County (“the Johnson farm”).

In January of 2008, one of TDM’s North Carolina farms (“TDM #5”) broke out with PRRS. PRRS is a highly contagious porcine virus believed to have hundreds, if not thousands, of different genetic strains. The virus can be spread in a number of ways: by contact with an infected pig; in útero from an infected mother to her fetus; or by contact with an area, such as a barn, shipping truck, or farmer, that was recently contacted by an infected pig. It is believed that insects and birds are capable of spreading the virus and, while “difficult to document,” a leading theory suggests that PRRS is an airborne virus. See Appellant’s App. at 515-16. Once a herd is infected, the virus tends to remain for an extended period of time. Along with respiratory symptoms, a pregnant sow infected with PRRS can have a spontaneous abortion, a still birth, weak piglets, and decreased future reproductivity. This, of course, results in serious financial harm to farmers.

There is no consensus among veterinarians on how to control, treat, and eradicate PRRS. One recognized method is to establish a “gilt acclimation facility” in which immature female swine (gilts) are segregated from the herd, immunized against a particular PRRS strain via inoculation, and then grown to market weight. See id. at 529-30. Once mature and immunized, the sows are reunited with the herd at a breeding facility, and piglets born to those immunized sows inherit the immunization.

In response to the outbreak at TDM #5, TDM renegotiated its contract with Dale Johnson to use the Johnson farm as a gilt acclimation facility. TDM chose the Johnson farm based on numerous favorable circumstances, including the farm’s design and size, but also because of its proximity to other breeding stocks owned by TDM and its proximity to feed mills and other finishing farms. TDM prepared a serum based on the PRRS strain at TDM # 5, shipped gilts from Illinois to the Johnson farm, and inoculated the gilts. The gilts then became immunized to that strain of PRRS and were eventually shipped to the breeding farms in North Carolina.

In July of 2009, Wilhoite’s farm broke out with a strain of PRRS that is more than 99% genetically identical to TDM’s strain. Wilhoite’s farm is about three-quarters of a mile from the Johnson farm, and Wilhoite was never notified by TDM that it had introduced the highly contagious virus to the Johnson farm. As a result of the PRRS outbreak, Wilhoite suffered an estimated loss of $275,000.

On August 11, 2009, Wilhoite filed suit against TDM alleging nuisance, negligence, and trespass. In relevant part, Wilhoite’s complaint alleged as follows:

6. ... [W]hen a herd contracts PRRS “biosecurity” measures must be undertaken, and, in the worst case, a herd can be lost and a facility shut down for decontamination and protection against further contagion.
7. It is the custom and practice in the hog industry, for both operators and their veterinary consultants, to alert neighboring or potentially affected operations of the outbreak of PRRS.... Prompt notice and containment procedures minimize loss from PRRS or its spread.
* * ⅝
Count I Nuisance
* ⅜ *
15. The conduct of the hog farming operations of TDM at [the Johnson farm] constitutes a nuisance, as defined by Indiana law.
Count II Negligence
sfc ⅜ ⅜
19. TDM had and has a duty to conduct it[s] use and control of the property [the Johnson farm] in a reasonably safe and responsible fashion, as would similarly situated individuals, and in accord with accepted custom and practice of the relevant agricultural community.
20. TDM breached that duty owed to Wilhoite.
* * *
Count III
Trespass
24. Through its reckless or negligent conduct TDM has caused a dangerous pathogen to enter the property of Wil-hoite.
25. This trespass has caused economic and other losses to Wilhoite which are continuing....

Id. at 21-24.

At his ensuing deposition, Alan Wilhoite, the owner of Wilhoite, testified that the purpose for his lawsuit was “[t]o ensure that [TDM] no longer continue[s] ... this blood serum vaccine from North Carolina, and to help ensure that I have a relatively reasonable chance that I won’t be reinfected with the PRRS virus.” Id. at 225. Likewise, Wilhoite’s veterinary expert, Dr. Jeffrey Harker, testified that “[t]he only unreasonable conduct I see is that ... the virus was brought in a vial and not on a pig.” Id. at 279. Wilhoite’s second veterinary expert, Dr. John Baker, agreed that the “[d]eliberate infection of animals at an otherwise healthy site with blood serum known to be carrying the PRRS virus poses a substantial and unnecessary risk that the infections will spread to other sites.” Id. at 262.

Dr. Baker further testified, however, that there were real differences between inoculation through a serum and simply allowing an infected pig to roam through an unexposed herd:

What you are doing [with serum inoculation] is getting all of the pigs infected at the same time. That doesn’t typically happen in a PRRS herd. And so it poses a larger risk than a positive PRRS finisher. A positive PRRS finisher is one that has pigs becoming positive to the PRRS virus over a staggered period of time, maybe a few weeks, maybe a month or two.
But with serum inoculation, on one day you give the animal live virus and everybody gets viremic at 7, 14 days, so there’s a lot of virus. But again the real risk was that in normal production, [each pig] has equal risk to get PRRS. It’s always out there, it could happen. That’s sort of not really what’s happening when you initially introduce a virus to a herd and then, rather than try to control it, you intentionally try to keep the -virus burning. That’s a different situation.

Id. at 253.

Dr. Harker opined that “the Johnson farm is the source of the PRRS contagion” at Wilhoite’s farm based on the genetic similarity of the viruses. Id. at 435-36. Dr. Harker also opined that a third party did not cause Wilhoite’s outbreak because the genetic “RFLP patterns” between TDM’s virus and other nearby strains of the PRRS virus were different, while the pattern between TDM’s virus and the virus at Wilhoite’s farm was substantially identical. Id. at 436-37.

In September of 2010, TDM moved for summary judgment, which Wilhoite opposed. In its motion TDM asserted that Wilhoite’s claims were either preempted by the VSTA or barred by Indiana’s Right to Farm Act. On October 27, the trial court entered its order denying TDM’s motion. In relevant part, the court concluded as follows:

[Wilhoite’s] claims are not preempted by VSTA. To the extent the case is about the injection of animals with a serum, the case pertains to “the distribution and use of such products” and is “based on local disease conditions.” It therefore falls within the category of activities which the State may restrict. However, the case is not really about the serum at all. It is about starting an infection of a disease in an area free from that particular strain of the disease and then maintaining a herd of infected animals in that area ....
* *
[Regarding the Right to Farm Act, b]oth the Johnson and Wilhoite sites have been operated as hog farms for many years, so both [locations] are continuing agricultural operations.... Neither one has a superior right to farm under [the Act], Additionally, nuisances which result from the negligent operation of an agricultural operation are not protected by [the Act]. Here, there is evidence of negligent operation which would, if found to be true, take the case out of the protection of the [Act],

Id. at 15, 18 (emphasis added; citation omitted). The trial court certified its order for interlocutory appeal, which we accepted.

DISCUSSION AND DECISION Standard of Review

TDM appeals the trial court’s denial of its motion for summary judgment. Our standard of review for summary judgment appeals is well established:

When reviewing a grant of summary judgment, our standard of review is the same as that of the trial court. Considering only those facts that the parties designated to the trial court, we must determine whether there is a “genuine issue as to any material fact” and whether “the moving party is entitled to a judgment a matter of law.” In answering these questions, the reviewing court construes all factual inferences in the non-moving party’s favor and resolves all doubts as to the existence of a material issue against the moving party. The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law; and once the movant satisfies the burden, the burden then shifts to the non-moving party to designate and produce evidence of facts showing the existence of a genuine issue of material fact.

Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind.2009) (citations omitted). The party appealing a summary judgment decision has the burden of persuading this court that the grant or denial of summary judgment was erroneous. Knoebel v. Clark County Superior Court No. 1, 901 N.E.2d 529, 531-32 (Ind.Ct.App.2009). Where the facts are undisputed and the issue presented is a pure question of law, we review the matter de novo. Crum v. City of Terre Haute ex rel. Dep’t of Redev., 812 N.E.2d 164, 166 (Ind.Ct.App.2004).

Issue One: Federal Preemption

Overview

TDM first contends that Wilhoite’s claims are preempted by the VSTA. As this court recently stated:

Because federal law is the supreme law of the land under the Supremacy Clause of the United States Constitution, state laws that interfere with or are contrary to federal law are invalidated under the preemption doctrine. A cardinal rule of preemption analysis is the starting presumption that Congress did not intend to supplant state law. This presumption against preemption takes on added significance where federal law is claimed to bar state action in fields of traditional state regulation. Accordingly the historic police powers of the States are not to be superseded by a Federal Act unless that was the clear and manifest purpose of Congress.
There are three variations of the federal preemption doctrine: (1) express preemption, which occurs when a federal statute expressly defines the scope of its preemptive effect; (2) field preemption, which occurs when a pervasive scheme of federal regulations makes it reasonable to infer that Congress intended exclusive federal regulation of the area; and (3) conflict preemption, which occurs when it is either impossible to comply with both federal and state or local law, or where state law stands as an obstacle to the accomplishment and execution of federal purposes and objectives.
The question, at bottom, is one of statutory intent, and we accordingly begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose. Determining statutory intent is a question of law we review de novo.

In re Beck’s Superior Hybrids, Inc., 940 N.E.2d 352, 356-57 (Ind.Ct.App.2011) (citations, quotations, and alterations omitted).

The VSTA states:

It shall be unlawful for any person, firm, or corporation to prepare, sell, barter, or exchange in ... the United States, any worthless, contaminated, dangerous, or harmful virus, serum, toxin, or analogous product ... intended for use in the treatment of domestic animals, unless and until the said virus, serum, toxin, or analogous product shall have been prepared, under and in compliance with regulations prescribed by the Secretary of Agriculture, at an establishment holding an unsuspended and unrevoked license issued by the Secretary of Agriculture as hereinafter authorized.

21 U.S.C. § 151. The VSTA confers on the Secretary of Agriculture, as the head of the United States Department of Agriculture (“USDA”), authority

to make and promulgate from time to time such rules and regulations as may be necessary to prevent the preparation, sale, barter, exchange, or shipment as aforesaid of any worthless, contaminated, dangerous, or harmful virus, serum, toxin, or analogous product for use in the treatment of domestic animals, or otherwise to carry out this chapter....

21 U.S.C. § 154. The USDA, in turn, has delegated its authority under the VSTA to the Animal and Plant Health Inspection Service (“APHIS”). 9 C.F.R. § 101.2. And APHIS has declared that

States are not free to impose requirements which are different from, or in addition to, those imposed by USDA regarding the safety, efficacy, potency, or purity of a product. Similarly, labeling requirements which are different from or in addition to those in the regulations under the Act may not be imposed by the States. Such additional or different requirements would thwart the Congressional intent regarding uniform national standards, and would usurp USDA’s authority to determine which biologies are pure, safe, potent, and efficacious. However, it has been APHIS’ consistent position that individual States may impose certain restrictions on the distribution and use of biological products licensed by the TJSDA based on local disease conditions when such restrictions are made on a product-byproduct basis. For example, a State is permitted to restrict distribution of a biological product where a particular disease does not exist in the State and where use of the biological product would make it difficult to distinguish between exposed and vaccinated animals.
# * *
... This rule does not preempt any State or local laws, regulations, or policies, where they are necessary to address local disease conditions or eradication programs. However, where safety, efficacy, purity, and potency of biological products are concerned, it is the agency’s intent to occupy the field

57 Fed. Reg. 38758, 38759 (Aug. 27, 1992) (emphases added).

Thus, we are concerned here with field preemption, and APHIS has defined the scope of its field as “where [the] safety, efficacy, purity, and potency of biological products are concerned.” Id. The Seventh Circuit Court of Appeals has further considered the “scope of APHIS’ preemption statement” with respect to a common law claim that the manufacturer of an animal vaccine had committed a state tort when its vaccines failed to be effective. Lynnbrook Farms v. Smithkline Beecham Corp., 79 F.3d 620, 623 (1996). The Seventh Circuit held: “all other courts that have addressed the issue, including the district court below, have reached a conclusion similar to that which we reach today, i.e., that state common law claims of the type asserted in this case are preempted by the APHIS regulation.” Id. (citing Lynnbrook Farms v. Smithkline Beecham Corp., 887 F.Supp. 1100 (C.D.Ill.1995); Murphy v. SmithKline Beecham Animal Health Group, 898 F.Supp. 811 (D.Kan.1995); Brandt v. The Marshall Animal Clinic, 540 N.W.2d 870 (Minn.Ct.App.1995)).

In reaching that conclusion, the Seventh Circuit compared the preemption language used by APHIS with preemption language in federal statutes that the Supreme Court had held to preempt state common law actions. Specifically, the Seventh Circuit stated:

APHIS chose language that mirrors preemption language in federal statutes that has been held by the Supreme Court, this court, and many other courts, to preempt both state regulations and common law damages actions. In Cipollone v. Liggett Group, 505 U.S. 504 [112 S.Ct. 2608, 120 L.Ed.2d 407] (1992), the Supreme Court interpreted the preemption provision in the Public Health Cigarette Smoking Act of 1969, which amended the earlier Federal Cigarette Labeling and Advertising Act of 1965. The 1969 provision provided:
No requirement or prohibition based on smoking and health shall be imposed under state law with respect to the advertising and promotion of any cigarettes the packages of which are labeled in conformity with the provision of this Act.
Id. at 515 [112 S.Ct. 2608], The petitioners in Cipollone made the same argument that Lynnbrook advances here, maintaining that the provision was not intended to preempt state common law causes of action. The Court disagreed, finding “such an analysis [ ] at odds with the plain words of the 1969 Act and with the general understanding of common law damages actions.” Id. at 521 [112 S.Ct. 2608], The Court continued: “The phrase ‘no requirement or prohibition’ sweeps broadly and suggests no distinction between positive enactments and common law; to the contrary, those words easily encompass obligations that take the form of common law rules.” The Court thus rejected the petitioner’s argument and held that the provision preempted common law actions. Id. at 523-24 [112 S.Ct. 2608], The Court warned, however, that the clause should not be taken as a blanket preemption of all common law claims. Id. The Court continued its analysis to determine which claims fell under the specific language of the clause. Id.
Following the Supreme Court’s lead, we and other circuit courts (as well as many district courts) have held that language similar to that in Cipollone, and substantially the same as the APHIS preemption provision, encompasses common law actions. For instance, in Shaw v. Dow Brands, Inc., 994 F.2d 364 (7th Cir.1993), we were called upon to determine the scope of the preemption language in the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136v(b). The act stated that “[s]uch State shall not impose ... any requirements for labeling or packaging in addition to or different from those required under this subchapter.” Id. at 370. With Cipollone as our touchstone, we found that the Cipollone language of “[n]o requirements or prohibitions” was “just another way of saying a [s]tate shall not impose ... any requirements,” and we therefore held that plaintiffs strict liability and negligence failure to warn claims were preempted by FIFRA. Id. at 371. Six other circuits have reached similar conclusions. More recently, we have held that language in the Medical Device Amendments (“MDA”) to the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 360k(a), proscribing “any requirement ... different from, or in addition to,” those established pursuant to the MDA extended to preempt certain common law actions. Many circuits agree. Lynnbrook has not distinguished the language used by APHIS in any meaningful way from the language used in FIFRA or the MDA. In the face of this strong and consistent authority, we are compelled to reach the same conclusion we reached in Shaw. If common law actions cannot survive under the 1969 cigarette law, FIFRA or the MDA, then common law actions imposing additional requirements on animal vaccines cannot survive the reach of the APHIS provision. See Shaw, 994 F.2d at 371.
* * *
... Thus, if [the plaintiffs] claims relate to these qualities [of safety, purity, potency, or efficacy], seeking to impose additional or different requirements in these areas, they are preempted.

Id. at 627-30 (emphasis, alterations, and ellipses original; footnotes and some citations omitted).

The Seventh Circuit’s analysis in Lynnbrook Fatms was ultimately derived from the Supreme Court’s analysis in Ci-pollone. In that case, a plurality of the Court held that the statutory language “ ‘[n]o requirement or prohibition’ sweeps broadly and suggests no distinction between positive enactments and common law.” Cipollone, 505 U.S. at 521, 112 S.Ct. 2608 (quoting 15 U.S.C. § 1334(b)); see also Nat’l Meat Ass’n v. Harris, — U.S. —, 132 S.Ct. 965, 970, 181 L.Ed.2d 950 (2012) (holding that “[t]he [Federal Meat Inspection Act’s] preemption clause sweeps widely.... The clause prevents a State from imposing any additional or different — even if non-conflicting — requirements that fall within the scope of the Act....”) (discussing 21 U.S.C. § 678). But the Cipollone Court then clarified that common law actions were not necessarily preempted. Rather, in such actions “[t]he central inquiry in each case is straightforward: we ask whether the legal duty that is the predicate of the common-law damages action constitutes” a requirement or prohibition, even if non-conflicting, under the federal statute in question. Cipollone, 505 U.S. at 523-24, 112 S.Ct. 2608. That is, where the common law action is a tort based on the failure to fulfill an underlying duty, we must consider whether the duty that would be imposed by a judgment for the plaintiff against the alleged tortfeasor would be a state-imposed obligation in conflict with the scope of the federal authority-

Accordingly, following Cipollone and Lynnbrook Farms, we proceed by considering whether each of Wilhoite’s three claims invade APHIS’ authority over the safety, efficacy, purity, or potency of TDM’s serum. In general, TDM asserts that each of the three claims “concern and relate to the serum TDM used to inoculate its pigs.” Appellant’s Br. at 19. Wilhoite, on the other hand, contends that each of its claims merely has “an incidental connection to [the] blood serum.” Appellee’s Br. at 13. Instead of concerning or relating to TDM’s serum, Wilhoite continues, each of its claims amounts only to a restriction on the distribution and use of the serum based on local disease conditions. We agree with Wilhoite that each of its three claims survives.

Nuisance and Negligence

We first consider Wilhoite’s nuisance and negligence claims. Wilhoite alleges that the “conduct of the hog farming operations of TDM” at the Johnson farm “constitutes a nuisance, as defined by Indiana law.” Appellant’s App. at 22. Indiana law defines a nuisance as “[w]hat-ever is: (1) injurious to health; (2) indecent; (3) offensive to the senses; or (4) an obstruction to the free use of property; so as essentially to interfere with the comfortable enjoyment of life or property....” I.C. § 32-30-6-6. On the designated facts, it is clear that Wilhoite’s claim is that TDM’s “conduct of the hog farming operations” at the Johnson farm was “an obstruction to the free use” of Wilhoite’s property so as to essentially interfere with Wilhoite’s comfortable enjoyment of its property. See id.; Appellant’s App. at 22.

Likewise, Wilhoite alleges that “TDM had and has a duty to conduct it[s] use and control of the [Johnson farm] in a reasonably safe and reasonable fashion, as would similarly situated individuals, and in accord with accepted custom and practice of the relevant agricultural community.” Appellant’s App. at 23. “To prevail on a claim of negligence a plaintiff is required to prove: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff proximately caused by the breach.” Humphery v. Duke Energy Ind., Inc., 916 N.E.2d 287, 290-91 (Ind.Ct.App.2009).

In relevant part, Wilhoite alleges that TDM acted negligently when it breached the following duties TDM owed to Wilhoite:

6. [W]hen a herd contracts PRRS “biosecurity” measures must be undertaken, and, in the worst case, a herd can be lost and a facility shut down for decontamination and protection against further contagion.
7. It is the custom and practice in the hog industry, for both operators and their veterinary consultants, to alert neighboring or potentially affected operations of the outbreak of PRRS.... Prompt notice and containment procedures minimize loss from PRRS or its spread.

Appellant’s App. at 21. The designated evidence supports Wilhoite’s allegations regarding TDM’s lack of notice, precautionary measures, and containment of the virus.

Neither Wilhoite’s nuisance claim nor its negligence claim “coneern[]” or “relatef] to” the safety, efficacy, potency, or purity of TDM’s serum. See 57 Fed. Reg. at 88759; Lynnbrook Farms, 79 F.3d at 630. Rather, Wilhoite’s nuisance claim is focused exclusively on the general manner in which TDM conducted its operations at the Johnson farm vis-a-vis Wilhoite’s farm, and Wilhoite’s negligence claim is based solely on TDM’s failure to take reasonable precautions at the Johnson farm in implementing its inoculation program. In other words, these two claims focus not on the serum itself but on TDM’s misuse of its otherwise lawful serum.

In the language of APHIS’ regulations, these two claims are centered on the manner in which TDM’s use of the biological product affected local disease conditions, namely, the conditions on Wilhoite’s farm. For such claims “it has been APHIS’ consistent position that individual States may impose certain restrictions on the distribution and use of biological products licensed by the USDA[] based on local disease conditions when such restrictions are made on a product-by-product basis.” 57 Fed. Reg. at 38759.

TDM asserts that this express exception to APHIS’ jurisdiction only applies to “positive law enactments ... and not ad hoc, case-specific tort judgments.” Appellant’s Br. at 23. We cannot agree. APHIS’ own language says that the exception applies when “States ... impose ... restrictions ... on a product-by-product basis.” 57 Fed. Reg. at 38759. And the Cipollone Court expressly concluded that the plain meaning of “imposed under State law” was not limited to positive law. 505 U.S. at 522-23, 112 S.Ct. 2608. TDM’s assertion that the exception to APHIS’ jurisdiction does not include any common law claims is contrary to the rationale of Cipollone and the express language of APHIS. See 57 Fed. Reg. at 38759; Cipollone, 505 U.S. at 523-24, 112 S.Ct. 2608.

A judgment for Wilhoite on these two claims would not impose a duty within the scope of the VSTA or APHIS’ regulations. Again, we must consider “whether the legal duty that is the predicate of the common-law damages action” amounts to an “additional or different[,] even if non-conflicting,” requirement within the scope of the VSTA and corresponding regulations. Harris, 132 S.Ct. at 970; Cipollone, 505 U.S. at 523-24, 112 S.Ct. 2608. Here, a judgment for Wilhoite on either or both of these claims would mean only that TDM has no legal right to use the Johnson farm in a manner that interferes with the property rights of its neighbors — that is, TDM’s use of the Johnson farm may not interfere with the peaceful use, possession, and quite enjoyment of Wilhoite’s property — and that TDM take reasonable and customary precautions against an adverse off-site impact before implementing an inoculation program. Those responsibilities do not concern the safety, efficacy, potency, or purity of TDM’s serum and, therefore, they survive TDM’s preemption argument.

Much of TDM’s arguments to the contrary are based on the testimonies of Alan Wilhoite and Wilhoite’s veterinary experts, Drs. Harker and Baker. Although Alan Wilhoite and his two veterinarians expressed concern about the danger posed by TDM’s virus, that concern was expressed relative to Wilhoite’s property, not to the serum itself. Thus, we do not see how this testimony is helpful to TDM. Neither are we persuaded by TDM’s assertions that it must comply with APHIS’ requests, if any were to be issued, regarding the safety of the serum. Wilhoite’s claims do not touch upon APHIS’ authority, and so there is no redundant burden imposed on TDM here.

We also agree with Wilhoite that “TDM’s [preemption] analysis overstates the scope of APHIS preemption.” Appel-lee’s Br. at 17 (capitalization removed). As Wilhoite states, “[t]he consistent refrain in preemption cases is that the lawsuit raises claims either in the nature of a products liability action[], i.e., where the claim is predicated on the preparation of a defective product, or a mislabeling claim.” Id.; see, e.g., Lynnbrook Farms, 79 F.3d at 623 (considering a common law claim that the manufacturer of an animal vaccine had committed a state tort when its vaccines failed to be effective). And during oral argument, both sides acknowledged that no court has ever held that claims analogous to Wilhoite’s nuisance and negligence claims are within the scope of the VSTA or APHIS’ regulations, even though the VSTA has existed in its current form since 1985 and was first enacted in 1913.

The parties do not dispute that, had TDM brought the virus to the Johnson farm on a pig rather than in a serum, Wilhoite’s lawsuit would raise claims outside the federal government’s jurisdiction. We recognize that TDM may have had good reason to choose to inoculate its herd through a serum rather than through happenstance, but we do not see how that choice is relevant to Wilhoite’s claims. Again, Wilhoite’s claims challenge TDM’s interference with Wilhoite’s property as well as TDM’s failure to take reasonable and customary precautions against an adverse off-site impact before implementing the inoculation program. Those claims are independent of the medium through which TDM inoculated its herd.

We decline TDM’s request to apply federal authority to territory otherwise customarily reserved to the States absent an explicit congressional mandate. To interpret federal law and regulations in the manner TDM requests would require this court to say, in effect, that no matter the facts and circumstances, there is no state law cause of action or remedy when one misuses an otherwise lawful serum, regardless of the harm that use causes and the collateral damage that results. TDM requests an absolute bar on all state causes of action, which is an absurd conclusion unsupported by the law. The VSTA and APHIS’ regulations do not preempt any and all state law claims, and Congress did not intend to preclude claims arising from the misuse of an otherwise lawful serum. See, e.g., 57 Fed. Reg. at 38759.

Trespass

We next address whether Wil-hoite’s claim that TDM trespassed onto Wilhoite’s property is preempted. According to Wilhoite’s complaint, TDM trespassed when, “[tjhrough its reckless or negligent conduct!,] TDM ... caused a dangerous pathogen to enter the property of Wilhoite.” Appellant’s App. at 24. In Indiana, “[t]respass is defined as ⅞⅛ unlawful interference with one’s person, property, or rights.... Any unauthorized intrusion or invasion of private premises or land of another.’” Travelers Indem. Co. v. Summit Corp. of Am., 715 N.E.2d 926, 937 n. 15 (Ind.Ct.App.1999) (omission original) (quoting Black’s Law Dictionary at 1502 (6th ed. 1990)).

The thrust of Wilhoite’s trespass claim alleges an invasion onto its property by TDM’s virus due to “[TDM’s] reckless or negligent conduct.” Appellant’s App. at 24. This claim is not artfully drafted and appears to conflate negligence and trespass law. Insofar as Wilhoite’s claim is based on TDM’s reckless or negligent conduct, the claim is duplicitous of Wilhoite’s nuisance and negligence claims, which are addressed above. Thus, for our purposes we read this claim to allege a trespass based only on the invasion of TDM’s virus onto Wilhoite’s property.

While the trespass claim states that TDM permitted a “dangerous pathogen” to enter onto Wilhoite’s property, the claim is based on the invasion of the pathogen and not its virulence. See Travelers Indem. Co., 715 N.E.2d at 937 n. 15; Appellant’s App. at 24. Thus, the trespass claim does not concern the safety, efficacy, purity, or potency of TDM’s serum, and it is a valid state law claim. Nonetheless, it would not be inappropriate for the trial court to give a limiting instruction to the jury that it may not consider the safety, efficacy, purity, or potency of TDM’s serum but only whether the manner in which TDM used the serum unlawfully interfered with Wil-hoite’s rights to the peaceful use, possession, and quiet enjoyment of its property.

Issue Two: Indiana’s Right to Farm Act

In the alternative to its preemption argument, TDM contends that Wil-hoite’s claims are barred by Indiana’s Right to Farm Act (hereinafter, “the Act”). The Act “was adopted by the General Assembly in an attempt to limit the circumstances under which agricultural operations could become subject to nuisance suits.” Lindsey v. DeGroot, 898 N.E.2d 1251, 1257 (Ind.Ct.App.2009). According to the Act:

(a) This section does not apply if a nuisance results from the negligent operation of an agricultural or industrial operation or its appurtenances.
(b) The general assembly declares that it is the policy of the state to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products. The general assembly finds that when nonagricul-tural land uses extend into agricultural areas, agricultural operations often become the subject of nuisance suits. As a result, agricultural operations are sometimes forced to cease operations, and many persons may be discouraged from making investments in farm improvements. It is the purpose of this section to reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance.
(c) For purposes of this section, the continuity of an agricultural or industrial operation shall be considered to have been interrupted when the operation has been discontinued for more than one (1) year.
(d) An agricultural or industrial operation or any of its appurtenances is not and does not become a nuisance, private or public, by any changed conditions in the vicinity of the locality after the agricultural or industrial operation, as the case may be, has been in operation continuously on the locality for more than one (1) year if the following conditions exist:
(1) There is no significant change in the type of operation. A significant change in the type of agricultural operation does not include the following:
(A) The conversion from one type of agricultural operation to another type of agricultural operation.
(B) A change in the ownership or size of the agricultural operation.
(C) The:
(i) enrollment; or
(ii) reduction or cessation of participation;
of the agricultural operation in a government program.
(D) Adoption of new technology by the agricultural operation.
(2) The operation would not have been a nuisance at the time the agricultural or industrial operation began on that locality.

I.C. § 32-30-6-9 (emphasis added).

In Wendt v. Kerkhof 594 N.E.2d 795, 798 (Ind.Ct.App.1992), trans. denied, this court reviewed the legislative intent underlying the Act. We stated as follows: “The doctrine of ‘coming to the nuisance,’ as codified in [the Act], applies when an agricultural operation has been in existence for more than one year and then someone becomes an adjacent landowner and claims nuisance. In such cases, a nuisance action is precluded by statute.” Id. (citations omitted). The statute’s policy has also led this court to conclude that, “when examining the statutory provisions and the policy behind the Right to Farm Act, it is our view that it has no applicability to the manner in which two farmers ... conduct their operations.” Stickdorn v. Zook, 957 N.E.2d 1014, 1024 n. 5 (Ind.Ct.App.2011).

We agree with Wilhoite and the trial court that the Act does not apply in this action between two established farming operations. See id.; Wendt, 594 N.E.2d at 798. TDM’s only response to this conclusion is to assert that the text of the Act does not support the case law, but we cannot agree. The Act, by its plain terms, was intended to prohibit nonagricultural land uses from being the basis of a nuisance suit against an established agricultural operation. I.C. § 32-30-6-9(b). Our case law has consistently applied the law according to the General Assembly’s plainly stated intent, and we will not reconsider those conclusions for TDM’s sake. We affirm the trial court’s denial of TDM’s motion for summary judgment on this issue.

Conclusion

In sum, we hold that Wilhoite’s three claims are directed only against TDM’s alleged misuse of an otherwise lawful serum. As the trial court stated, those claims are “not really about the serum at all.” Appellant’s App. at 15. As such, those claims are outside the scope of the federal jurisdiction and are properly before the trial court. We also hold that Indiana’s Right to Farm Act does not apply on these facts between farming operations. Thus, we affirm the trial court’s denial of summary judgment.

Affirmed.

VAIDIK, J., and BRADFORD, J., concur.

      . Although Dale Johnson has separately filed a brief, in it he "adopts by reference the brief of appellant TDM.” Johnson Br. at 1. Johnson adds no other arguments or facts, and he has not filed a separate appendix.

      . We held oral argument on April 23, 2012.

      . Amicus Carroll County Agriculture Association has filed a brief in support of TDM.

      . It is not disputed that a party may file suit to enforce the VSTA's provisions, but Wilhoite does not suggest that such enforcement is the basis of its action against TDM.

      . TDM avers that Wilhoite has failed to designate evidence to show a genuine issue of material fact as to whether TDM caused Wil-hoite’s damages. This is not so. Wilhoite’s veterinary experts testified that the virus on Wilhoite's farm was more than 99% genetically identical to TDM’s virus and that no other strain of the PRRS virus on nearby farms matched Wilhoite’s. This is sufficient for Wil-hoite to at least get to trial.
      TDM also argues that the testimony of Wil-hoite's experts is inadmissible because "there are no generally accepted or scientifically validated standards for determining how close is too close when it comes to establishing a gilt development site....” Appellant's Br. at 33. But TDM does not cite to the record to show where it raised this objection to the trial court, and TDM may not raise an objection for the first time on appeal. Ind. Appellate Rule 46(A)(8)(a); Rudnick v. N. Ind. Commuter Transp. Dist., 892 N.E.2d 204, 207 (Ind.Ct.App.2008), trans. denied. TDM's waiver notwithstanding, the connection of the virus on Wilhoite’s farm to TDM’s vims is mainly based on Wilhoite’s DNA evidence, and TDM does not dispute that Wilhoite’s experts based their DNA analyses on reliable scientific principles. See Ind. Evidence Rule 702(b). We also note that Wilhoite has submitted a scientific article on PRRS — again, without objection from TDM — in which the authors acknowledge the "apparent long-distance transmission” capabilities of PRRS. Appellant's App. at 515.

      . There is no dispute that TDM was exempt from APHIS’ licensure requirements since it created the serum for its own use. See 21 U.S.C. § 154a. TDM contends that this exemption means that the "local disease exception” does not apply to it. Appellant's Br. at 23-26. We cannot agree. While the relevant regulation does refer to licensed products at one point, later the regulation clarifies that it "does not preempt any State or local laws, regulations, or policies, where they are necessary to address local disease or eradication programs” so long as the State rule does not concern the safety, efficacy, purity, or potency of the biological product. 57 Fed. Reg. at 38759 (emphasis added). And TDM's assertion here would lead to the dubious conclusion that unlicensed products are subject to greater federal regulation than licensed products. That conclusion is not supported with citations to authority.


author: VAIDIK, Judge.

text:
    Dennis Jack HORNER, Appellant-Petitioner, v. Marcia (Horner) CARTER, Appellee-Respondent.
    No. 34A02-1111-DR-1029.
    Court of Appeals of Indiana.
    June 13, 2012.

      David W. Stone, IV, Stone Law Office & Legal Research, Anderson, IN, Attorney for Appellant.
    Brent R. Dechert, Kokomo, IN, Attorney for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Seven years after Dennis Jack Horner (“Husband”) and Marcia (Horner) Carter (“Wife”) reached a mediated settlement agreement during dissolution proceedings, Husband sought to modify the terms of that agreement on the basis of mistake. The trial court denied his request. Husband now appeals, contending that the trial court should have allowed him to offer extrinsic evidence — specifically, communications that occurred during mediation — to show that there was a mistake in the drafting of the agreement. We conclude that Alternative Dispute Resolution Rule 2.11 and Indiana Evidence Rule 408 allow the introduction of mediation communications to establish traditional contract defenses. We also find that the trial court correctly determined that the agreement in this case provided for a property settlement that survived Wife’s remarriage. We affirm.

Facts and Procedural History

Husband and Wife were divorced in 2005 after thirty-eight years of marriage. During dissolution proceedings, the parties reached a mediated settlement agreement, which the trial court incorporated into the decree of dissolution. The five-page settlement agreement contains four sections, entitled “Real Estate,” “Other Property Distribution,” “Maintenance/Support,” and “Further Agreements.”

In the section entitled “Real Estate,” the parties agreed that they would sell the marital residence, and Husband would use the proceeds to purchase a new residence for Wife. Specifically, the section provided that Husband

will purchase, lease, purchase with lease option or in some other form acquire new residence upon the sale of the marital residence of the parties. [Husband] agrees to pay the sum of $550.00 per month (taxes and insurance included) towards the purchase of new residence. New residence shall be titled in [Husband’s] name alone but [Wife] shall have exclusive possession of the new residence. [Husband] agrees to grant to [Wife] a life estate in the new residence ....
Until such time as the marital residence is sold, [Husband] shall be responsible for the mortgage/utility payments....

Appellant’s App. p. 20-21. The “Maintenance/Support” section of the agreement provided, in relevant part:

Upon the entry of the Decree of Dissolution, [Husband] agrees to pay to [Wife] as permanent maintenance:
(a) The sum of $500.00 per pay period for twelve (12) consecutive months[.]
(b) The sum of $600.00 per pay period for the thirteenth (13th) month forward until and unless otherwise modified by the Court or the death of the [Wife],

Id. at 22. The parties also agreed that the permanent maintenance order was subject to modification and listed circumstances where modification might be necessary, such as job loss, retirement, “or the remarriage of [Wife].” Id. The agreement also disposed of other marital property, including Husband’s employee savings account and pension through Chrysler, where he had been employed for nearly forty years. The parties agreed to divide the employee savings account equally between them, but Wife disclaimed her interest in Husband’s pension.

The parties were unable to sell the former marital residence, and Husband entered into a contract with Wife’s boyfriend, Billy Carter, to sell the residence to Carter. The contract required Carter to pay Husband $660 per month. When Wife married Carter in 2007, the parties filed an agreed-upon entry that terminated Husband’s monthly maintenance obligation to Wife. Husband did not seek modification of his obligation to make monthly housing payments to Wife at that time.

Carter and Wife lived in the former marital residence and Carter continued to pay Husband $660 each month until sometime in 2010. Meanwhile, Husband paid the mortgages, taxes, and other financial obligations on the property in excess of $800 each month. By early 2011, Carter had fallen many months behind in his monthly payment, and Husband evicted Carter and Wife. In April 2011, Wife filed a motion for rule to show cause alleging that Husband had failed to make the $550 monthly housing payments to Wife. In his answer, Husband claimed he had fulfilled his obligation to Wife by selling the former marital residence to Carter and by paying the mortgage, taxes, and other bills associated with the property. Husband also filed a motion to modify the settlement agreement and terminate his monthly housing payments to Wife. The trial court held a hearing on the parties’ motions in August 2011.

At the hearing, Husband argued that there was a mistake in the settlement agreement because his obligation to make housing payments to Wife was actually maintenance, which terminated upon Wife’s remarriage. Husband stated, “[I]t says in the divorce decree once she’s married everything stops; everything, and that’s the way I put it to the mediator.” Tr. p. 12. Twice more he stated that there was a mistake in the agreement: “My understanding was that it was all maintenance,” and “Actually I thought everything was supposed to stop when she got married.” Id. at 19, 23. When Husband again attempted to testify as to what he told the mediator, Wife’s counsel objected. The trial court sustained the objection, “[cjlearly anything that was said in mediation is clearly inadmissible.” Id. at 23. Nonetheless, Husband later elaborated:

Well, my understanding was that when [Wife] got married everything stopped. I mean why wouldn’t it. That’s common sense. I don’t know. That was my understanding. That’s the way I made it clear to the mediator. If it didn’t get in the agreement properly then we need to talk to my two attorneys at the time, or the three attorneys at the time. I had an attorney, she had an attorney. ...

Id. at 29. Wife, however, explained that she had agreed to relinquish her interest in Husband’s pension because Husband had agreed to pay her housing expenses, and for this reason, she believed the monthly housing payments were not affected by her remarriage. Id. at 34, 39.

In October 2011, the trial court entered an order, in which it framed the issue as “whether the Settlement Agreement terms that required [Husband] to purchase and maintain a life-estate residence for [Wife] was a division of property or an award of maintenance[.]” Appellant’s App. p. 14. The court then described the provisions in dispute:

14. Here, the property settlement agreement clearly provided for two distinct sections that obligated [Husband] to provide funds to [Wife] after the dissolution. ...
15. The agreement’s provision for [Husband] to make periodic payments of $500 then $600 “per pay period” was clearly denominated as permanent maintenance in which the parties specifically agreed was subject to modification. By agreement in July 2007, due to [Wife’s] remarriage and [Husband’s] plan to retire, [Husband’s] obligation to pay monthly maintenance terminated in August 2007.
17. In the court’s judgment, the provisions requiring [Husband] to provide funds for [Wife’s] housing during her lifetime were in the nature of a property settlement, specifically to offset [Wife’s] release of her right to a portion of [Husband’s] pension.
18. At the time of the dissolution, the parties owned three significant marital assets: the marital residence, [Husband’s] Chrysler pension, and [Husband’s] Chrysler savings plan account. The property settlement agreement divided the savings plan account equally, and [Husband] retained all interest in his Chrysler pension. In return for releasing all interest in [Husband’s] pension, the equity from the sale of the marital residence was to apply to purchase of a new residence for [Wife], and [Husband] would pay $550.00 per month to maintain the home during her lifetime.

Id. at 14-15 (emphasis added). Having concluded that the housing payments were for a property settlement, rather than maintenance, the court determined that Husband had a continuing obligation to provide the $550 monthly housing payment to Wife. Id. at 16.

Husband now appeals.

Discussion and Decision

On appeal, Husband contends that there was a mistake in the drafting of the mediated settlement agreement because the monthly housing payments to Wife were intended to be maintenance, which terminated upon Wife’s remarriage. Husband argues that the trial court should have allowed him to introduce extrinsic evidence — specifically, communications that occurred during mediation — to show that there was a mistake in the drafting of the agreement. Husband also argues that the trial court erred in determining that the housing payments were for a property settlement, rather than maintenance.

It is well settled that we apply the general rules of contract construction when interpreting settlement agreements. Bernel v. Bernel, 930 N.E.2d 673, 681 (Ind.App.2010), trans. denied. Where contract language is unambiguous and the intent of the parties is discernible from the written contract, the court is to give effect to the contract’s terms. Fackler v. Powell, 891 N.E.2d 1091, 1096 (Ind.Ct.App.2008), trans. denied. A contract is ambiguous if a reasonable person would find the contract subject to more than one interpretation. By contrast, the terms of a contract are not ambiguous simply because the parties disagree as to their interpretation. Id. If contract language is ambiguous, extrinsic evidence may be considered. Bernel, 930 N.E.2d at 682.

Interpretation of a settlement agreement, as with any contract, presents a question of law, which we review de novo. Deel v. Deel, 909 N.E.2d 1028, 1033 (Ind.Ct.App.2009). When asked to determine whether payments are for maintenance or property settlement, we consider various factors. The factors indicating that a payment is for maintenance are: (1) the designation as maintenance; (2) provision terminating the payments upon death of either party; (3) payments made from future income; (4) provisions for termination upon remarriage; (5) provisions calling for the modification based upon future events; and (6) payments for an indefinite period of time. Id. at 1034. Property settlements are indicated when: (1) the payments are for a sum certain payable over a definite period of time; (2) there are no provisions for modification based on future events; (3) the obligation to make payments survives the death of the parties; (4) the provisions call for interest; and (5) the award does not exceed the value of the marital assets at the time of dissolution. Id.

I. Extrinsic Evidence

Husband first contends that there was a mistake in the drafting of the agreement and that the trial court erred when it excluded extrinsic evidence of this mistake. Wife contends that Husband has waived this argument by failing to raise it when the parties terminated Wife’s maintenance in 2007 and by now failing to present a cogent argument on the issue. However, given our preference for resolving issues on their merits, we address Husband’s claims as raised on appeal.

According to the agreement, Husband must make monthly housing payments to Wife according to the terms of the section entitled “Real Estate.” Wife contends, and the trial court agreed, that this was a property settlement. However, the agreement provides that this obligation terminates upon the death of either party, which is a characteristic typical of maintenance. Deel, 909 N.E.2d at 1034. Further, although the trial court did not expressly state whether it believed the agreement to be ambiguous, it relied on testimony from the parties to interpret its terms, particularly, Wife’s testimony about why she disclaimed Husband’s pension. We conclude that the agreement here was ambiguous. We may therefore consider extrinsic evidence, and our standard of review is de novo. Bernel, 930 N.E.2d at 682. The precise issue before us, however, is not whether Husband may offer extrinsic evidence, but rather, whether that evidence may be communications that occurred in mediation. This Court has yet to answer this particular question.

Alternative Dispute Resolution Rule 2.11 (“Rule 2.11”), which concerns the confidentiality of mediation, states that “mediation shall be regarded as settlement negotiations as governed by Indiana Evidence Rule 408.” Indiana Evidence Rule 408 provides:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise a claim, which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. Compromise negotiations encompass alternative dispute resolution.

The rule does not require exclusion when the evidence is offered for a purpose other than “to prove liability for or invalidity of the claim or its amount.” Ind. Alternative Dispute Resolution Rule 2.11; see also Gast v. Hall, 858 N.E.2d 154, 161 (Ind.Ct.App.2006) (mediation communications offered to show lack of testamentary capacity were admissible under Rule 2.11 as evidence offered for another purpose), trans. denied. Here, Husband sought to offer evidence of mediation communications to establish that a mistake occurred in the drafting of the agreement and to modify the agreement based upon that mistake. Thus, this evidence was not offered “to prove liability for or invalidity of the claim or its amount” regarding the housing payments to Wife. Because Husband sought to offer this evidence for a purpose other than those prohibited by Rule 2.11, the trial court erred in excluding it.

In reaching this decision, we note that public policy favors the use of mediation and other amicable settlement techniques that allow parties to resolve their disputes without resorting to litigation, and promote party autonomy and decrease the strain on our courts. Although confidentiality is an important part of mediation, strict adherence to confidentiality would produce an undesirable result in this context — parties would be denied the opportunity to challenge issues relating to the integrity of the mediation process, such as mistake, fraud, and duress. Allowing the use of mediation communications to establish these traditional contract defenses provides parties their day in court and encourages, rather than deters, participation in mediation.

Our holding is consistent with Section 6(b)(2) of the Uniform Mediation Act (“the UMA”), which provides an exception for testimony of parties to mediation that is similar to Rule 2.11, although more expansive:

(b) There is no privilege ... if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in:
(2) [A] proceeding to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of mediation.

The comment to Section 6(b)(2) explains that the exception “is designed to preserve traditional contract defenses to the enforcement of the mediated settlement agreement that relate to the integrity of the mediation process, which otherwise would be unavailable if based on mediation communications.” Unif. Mediation Act § 6, cmt. 11.

Our holding does not change the outcome in this case, however. Husband did testify to communications that occurred during mediation; his statements about his understanding of the settlement agreement and communications to the mediator fall far short of establishing any mistake that might entitle him to relief. He offered no evidence of a scrivener’s error. He offered no evidence of mutual or unilateral mistake — that is, no evidence that both he and Wife were mistaken about an essential fact or that Wife induced any mistake. We therefore conclude that although the trial court erred in excluding this extrinsic evidence, this error was harmless.

II. Property Settlement

Husband also argues that the trial court erred in concluding that the housing payment provision is for a property settlement. He argues that certain facts, particularly that the payments terminate upon death of either party and that the payments come from his future income, indicate that the payments are maintenance. We disagree.

The provision at issue indeed has characteristics that resemble maintenance: Husband’s obligation to make housing payments to Wife terminates upon the death of either party and the monthly payments appear to come from Husband’s future earnings. There is also no provision for interest. Further, the amount was not for a sum certain payable over a definite period of time, and it is not clear whether the payments will eventually exceed the value of the marital assets at the time of dissolution. However, the remaining factors favor a conclusion that the payments are for a property settlement. The parties placed this provision under the “Real Estate” portion of the settlement agreement, not under the section clearly entitled “Maintenance/Support.” The parties also expressly provided that other provisions in the agreement were subject to modification, but did not do so for the housing-payment provision. These facts strongly suggest that the parties intended that the payments be for a property settlement, not maintenance. This conclusion is bolstered by Husband’s actions. When Wife remarried in 2007, she and Husband filed an agreed-upon entry that terminated Husband’s monthly maintenance obligation to Wife. Tellingly, Husband did not also seek to modify what he claims he always believed to be maintenance, the monthly housing payment. In fact, he did not do so until five years later, in 2011. Finally, Husband received the full value of his Chrysler pension in exchange for making a monthly housing payment to Wife. See Appellant’s App. p. 15. This, too, strongly indicates that the housing payments are for a property settlement.

A dissolution court is in the best position to resolve questions of contract interpretation and enforcement. Bemel, 930 N.E.2d at 682. Based on the forgoing, we cannot say that the trial court erred in determining that the monthly housing payments are for a property settlement, rather than maintenance.

Affirmed.

FRIEDLANDER, J., and BARNES, J., concur.

      . At one point, Husband was paying two mortgages on the former marital residence in the amount of $1280 per month. After refinancing, the mortgage payment was $825 per month.

      . See Peter Robinson, Centuries of Contract Common Law Can't Be All Wrong: Why the UMA's Exception to Mediation Confidentiality in Enforcement Proceedings Should be Embraced and Broadened, 2003 J. Disp. Resol. 135, 143-48 (2003).

      . Eleven jurisdictions have adopted the UMA, including the District of Columbia, Idaho, Illinois, Iowa, Nebraska, New Jersey, Ohio, South Dakota, Utah, Vermont, and Washington. See Sarah R. Cole et al., Mediation: Law, Policy & Practice § 8:14 (2d ed.).

      . To the extent Husband argues that he offered no additional evidence of mistake because of the court’s ruling excluding this evidence, Husband made no offer of proof to create an appellate record as to what additional evidence he wished to present.

      . This fact distinguishes the Florida case on which Husband relies. See Appellant’s Br. p. 6.

      .The parties dispute whether the trial court considered Husband’s testimony. We need not resolve this issue because even assuming it did not, this error would be harmless. Husband’s testimony did not establish that any mistake occurred.

      . Because we resolve this issue as we do, we need not address the parties’ arguments regarding the dissolution court’s authority to modify the agreement.


author: BAILEY, Judge.

text:
    Don MORRIS and Randy Coakes, Appellants-Plaintiffs, v. Brad CRAIN, Richard Redpath, BioSafe Engineering, LLC, Steve Biesecker, Tyler Johnson, Brandon Ross and Chris Sollars, Appellees-Defendants.
    No. 32A01-1109-PL-414.
    Court of Appeals of Indiana.
    June 18, 2012.

      James E. Ayers, Wernle, Ristine & Ayers, Crawfordsville, IN, Attorney for Appellants.
    Brad Crain and Richard Redpath, Bruce D. Laconi, Sean M. Clapp, Clapp Ferrucci, Fishers, IN, BioSafe Engineering, LLC, Thomas G. Burroughs, Michael W. Hile, Ronald G. Sentman, Katz & Korin, PC, Indianapolis, IN, Attorneys for Appellees.
   OPINION

BAILEY, Judge.

Case Summary

Appellants-Plaintiffs Donald Morris (“Morris”) and Randy Coakes (“Coakes”) appeal the grant of summary judgment in favor of Appellees-Defendants Brad Crain (“Crain”), Richard Redpath (“Redpath”), and BioSafe Engineering, LLC (“Bio-Safe”) upon breach of contract and equitable claims. They present a single, consolidated issue: whether the defendants demonstrated their entitlement to summary judgment. We reverse.

Facts and Procedural History

The facts most favorable to Morris and Coakes, the non-movants for summary judgment, are as follows. In 2006, Morris was employed by Waste Recovery, which provided biological effluent destruction systems products. When it became apparent that the company was insolvent, Morris approached Redpath in regard to forming a new company to “take control of the niche industry.” (App. 78.) On November 15, 2006, Waste Recovery ceased doing business; Morris paid a rent installment and agreed to execute a five-year lease for the premises previously occupied by Waste Recovery. He initiated remodeling of the premises and began to investigate financing.

Later in November, Crain, Coakes, Red-path, and Morris conducted a conference call regarding the new business. Morris and Coakes drafted a spreadsheet of proposed ownership shares (45% to Morris, as President, 25% and 20% to Crain and Red-path, respectively, as Vice-Presidents, and 2% each to Coakes, Biesecker, Johnson, Ross, and Sollars). After negotiation, the shares allocation was changed to 40% for Morris, 30% for Crain, and 20% for Red-path (with the others retaining 2% each).

Marketing materials were distributed indicating that Redpath, Morris, and Crain were “principals” of BioSafe. (App. 103.) Nonetheless, in January of 2007, Articles of Organization for BioSafe were filed with the Indiana Secretary of State, indicating that Crain and Redpath were the sole members, each having 50% ownership.

In August of 2007, Crain advised Morris that a building in Brownsburg had been leased in anticipation of acquiring Waste Recovery assets. The following month, Morris asked Crain about signing to purchase Waste Recovery assets, and was told that Crain and Redpath had been representing that they were each 50/50 owners. Later that month, BioSafe successfully bid for the assets of Waste Recovery. Red-path advised Morris that new investors now owned 50% of BioSafe.

The new owners of record were Justin Bisland (“Bisland”) and LPM Investments, LLC. In October of 2007, Bisland came into the BioSafe offices and fired Morris. Morris was unable to locate the electronic document he had drafted with regard to shared ownership; he reached the conclusion that it had been deleted from the company files.

On March 5, 2010, Morris and Coakes filed their complaint. An amended complaint asserted that Morris and Coakes had equitable interests and contractual rights in BioSafe and that they had standing to bring a shareholder derivative action. They sought the appointment of a receiver, an accounting and disgorgement of funds, and BioSafe’s dissolution. The defendants answered, denying that Red-path and Crain had created a false document, made false representations, brought about the plaintiffs ouster, diverted funds, or met with Morris to discuss ownership participation. The defendants also denied that Morris and Coakes held an equitable interest, or that they had standing to bring a shareholder derivative claim.

On February 8, 2011, the majority of the defendants moved for summary judgment; Crain and Redpath subsequently joined in the motion. The parties made their respective designations of materials. The trial court conducted a hearing on July 26, 2011, at which argument of counsel was heard. BioSafe’s counsel argued that the shareholder derivative claims were unfounded or, at a minimum, were premature, and that the case distilled to “a case of an oral contract at best between Mr, Crain and Mr. Redpath and Mr. Morris and Mr. Coakes ... of dubious merit.” (Tr. 17.) Counsel for Crain and Redpath argued that there had, at most, been discussion about a business yet to be formed, “an offer that was never accepted.” (Tr. 18-19.)

On the following day, the trial court issued an order dismissing defendants Bie-secker, Johnson, Ross, and Sollars and ordering the remaining parties to submit documents:

1. Plaintiffs, within ten (10) days, must file with the Court a document stating with specificity the legal theories the Plaintiffs assert against the Defendants.
2. Within ten (10) days thereafter, the Defendants must file a document stating with specificity the legal elements of the Plaintiffs theories that the Defendants assert have not been met.

(App. 170.) On August 8, 2011, Morris and Coakes submitted a document indicating that their theories of recovery were breach of contract, unjust enrichment, and estop-pel. Crain and Redpath jointly, and Bio-Safe separately, submitted “statements of elements not met by plaintiffs.” (App. 174,177.)

On August 19, 2011, the trial court granted summary judgment to all defendants in an order providing in pertinent part:

Plaintiffs theory is in contract. The Defendant’s Statement of Elements Not Met of Defendants BioSafe Engineering LLC, Steve Biesecker, Tyler Johnson, Brandon Ross and Chris Sollars correctly sets out the current state in the law regarding Plaintiffs!’] complaint.
Based upon application of the law to the facts of this case at this pleading stage, the court must GRANT the Defendant’s Motion for Summary Judgment for the reasons set out in the Statement of Elements Not Met filed 8-16-11 and enters Summary Judgment on behalf of the Defendants and against the Plaintiffs. There is no reason for any delay in this Order.

(App. 180-81.) This appeal ensued.

Discussion and Decision

Indiana Trial Rule 56 provides that summary judgment shall be rendered “if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” A genuine issue of material fact exists where facts concerning an issue that would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue. Huntington v. Riggs, 862 N.E.2d 1263, 1266 (Ind.Ct.App.2007), trans. denied.

The party moving for summary judgment bears the burden of establishing the lack of a material factual issue and, once the movant has met this burden, an opposing party is obliged to disgorge sufficient evidence to show the existence of a genuine triable issue. Cowe by Cowe v. Forum Group, Inc., 575 N.E.2d 630, 633 (Ind.1991). The opposing party’s obligation does not arise until after the movant has shown entitlement to summary judgment. Id.

“In ruling upon a motion for summary judgment, facts alleged in a complaint must be taken as true except to the extent that they are negated by depositions, answers to interrogatories, affidavits, and admissions on trial or by testimony presented at the hearing on a motion for summary judgment.” Id. The trial court may consider only properly designated evidence when deciding a motion for summary judgment. Kronmiller v. Wangberg, 665 N.E.2d 624, 627 (Ind.Ct.App.1996), trans. denied.

In reviewing a trial court’s ruling on summary judgment, we stand in the shoes of the trial court, and apply the same standards in deciding whether to affirm or reverse summary judgment. Warren v. Warren, 952 N.E.2d 269, 272 (Ind.Ct.App.2011). We consider all of the designated evidence in the light most favorable to the non-moving party. Indiana Regional Recycling, Inc. v. Belmont Indus., Inc., 957 N.E.2d 1279, 1282 (Ind.Ct.App.2011). The party appealing the grant of summary judgment bears the burden of persuading us that the trial court’s ruling was improper. Id.

The theories of recovery before the trial court were those of breach of contract, unjust enrichment and equitable estoppel. According to Morris and Coakes, an oral contract. was formed when the parties agreed to form a limited liability organization to meet the market opportunity presented by Waste Recovery’s demise. It is claimed that Crain and Redpath took benefits conferred by Morris but excluded Morris (and Coakes) from participation in BioSafe’s formation and revenue.

The existence of a contract is a question of law. Batchelor v. Batchelor, 853 N.E.2d 162, 165 (Ind.Ct.App.2006). The basic requirements are offer, acceptance, consideration, and “a meeting of the minds of the contracting parties.” Id. However, the intention of the parties to a contract is a factual matter which must be determined from all the circumstances. Zimmerman v. McColley, 826 N.E.2d 71, 76 (Ind.Ct.App.2005).

Unjust enrichment occurs when a measurable benefit has been conferred on the defendant under such circumstances that the defendant’s retention of the benefit without payment would be unjust. Bayh v. Sonnenburg, 573 N.E.2d 398, 408 (Ind.1991). The benefit must be one that the defendant impliedly or expressly requested. Coleman v. Coleman, 949 N.E.2d 860, 867 (Ind.Ct.App.2011).

Equitable estoppel is grounded on the underlying principle that one who by deed or conduct induces another to act in a particular manner will not be permitted to adopt an inconsistent position, attitude, or course of conduct that causes injury to such other. Brown v. Branch, 758 N.E.2d 48, 52 (Ind.2001). The basis for equitable estoppel is actual or constructive fraud by the person estopped. Paramo v. Edwards, 563 N.E.2d 595, 598 (Ind.1990). Constructive fraud arises by operation of law from conduct which, if sanctioned by law, would secure an unconscionable advantage. Id.

The trial court ordered the defendants to identify how the plaintiffs had failed to meet the elements of the plaintiffs’ specified claims. This effectively challenged the plaintiffs to establish each of their claims in order to withstand summary judgment. Indeed, as there had been no trial of issues, the documents purporting to “state elements not met” necessarily assumed that all factual disputes had been resolved in the defendants’ favor. The focus upon the plaintiffs purported failure to establish a claim is not consistent with our summary judgment standard.

As we have previously observed, a party seeking summary judgment bears the burden to make a prima facie showing that there are no genuine issues of material fact and that the party is entitled to judgment as a matter of law. Jackson v. Wrigley, 921 N.E.2d 508, 512 (Ind.Ct.App.2010). It is only when the moving party satisfies this burden that the nonmoving party may not rest on its pleadings, but must designate specific facts demonstrating the existence of a genuine issue for trial. Id. Of course, a defendant may sometimes, through properly designated materials, negate an element of a plaintiffs claim at the summary judgment stage. However, the non-movant has no obligation to disgorge evidence in support of his claim until after the movant has met his burden. Cowe, 575 N.E.2d at 633.

Here, the trial court ordered the parties to implement a procedure inconsistent with summary judgment proceedings. Summary judgment was improvidently granted.

Reversed.

ROBB, C.J., and MATHIAS, J., concur.

      . On July 28, 2011, consistent with the agreement reached by the parties at the summary judgment hearing, the trial court dismissed defendants Steve Biesecker, Tyler Johnson, Brandon Ross, and Chris Sollars. (App. 8.)

      . The Amended Complaint sought a declaratory judgment regarding ownership of Bio-Safe as well as the appointment of a receiver and an accounting of funds. The averments of the Amended Complaint included allegations of fraud; additionally, the Plaintiffs contended "this case is also brought as a derivative action to establish, fix, and determine the rights of the LLC for recoupment from Brad Crain and Richard Redpath and disgorgement by Defendants to the LLC of any benefits, property, or funds received improperly.” (App. 15.) However, after the summary judgment hearing, the trial court ordered the plaintiffs to clarify, in writing, the causes of action upon which they were proceeding. The plaintiffs responded that their theories of recovery were breach of contract, unjust enrichment, and estoppel. (App. 171.)

      . Morris and Coakes have also strenuously argued that the BioSafe operating agreement should be stricken as a “false document.” Appellants' Brief at 6. However, Morris and Coakes have abandoned any shareholder derivative claim and do not contend that they are actually members holding shares of record. Rather, they claim an equitable, as opposed to legal, interest. They contend an oral contract was breached and the defendants were unjustly enriched precisely because Crain and Redpath formed an LLC without regard to the plaintiffs' contract rights and contributions. The operating agreement, naming only Crain and Redpath, is support for the proposition that Morris and Coakes were excluded. It is accordingly unclear how admission of the document is prejudicial to them. Nonetheless, Morris and Coakes concede that the operating agreement was admissible evidence, if only for a limited purpose. Appellants' Brief at 6. Essentially, Morris and Coakes concede the authenticity of the document (but challenge the date of signature), as the plaintiffs have alleged that Crain and Red-path in fact established themselves as 50/50 members of BioSafe, albeit wrongfully.

      . Apparently, the products were used in management of animal carcasses.

      . There is no indication of record that Morris and Coakes sought e-discovery (discovery of electronically stored information).

      . See Ind.Code § 23-18-8-1 providing that an action on behalf of a limited liability company may be brought only by a member or manager of such company (where the organizational document so provides).

      . Arguably, the post-hearing order also did not give the defendants a fair opportunity to establish their entitlement to summary judgment through properly designated materials. The order did not limit the causes of action to those of the complaint or those addressed at the summary judgment hearing. In other words, it allowed the plaintiffs to clear up any perceived misunderstandings as to their legal theories after the time for summaiy judgment designations had passed. Regardless, the defendants did not interpose an objection to the opportunity afforded the plaintiffs.

      . For example, BioSafe contended that Morris had provided no measurable benefit except for his labor as an employee (for which he had been paid) despite the designated evidence that Morris had conceptualized a new company to satisfy a niche market, paid back rent, signed a lease, and remodeled premises. Similarly, Crain and Redpath contended that Morris had been fully “and handsomely” paid for all his contributions. (App. 178.) There is also designated evidence that BioSafe marketed its services and products based upon the reputation, credentials, and involvement of three principals, including Morris. This would tend to show that a jpailnership had been formed.