author: Bailey, Judge.

text:
    In the Matter of the Involuntary Termination of the Parent-Child Relationship of Z.B., D.B., L.B., Me.B., Ma.B. (Minor Children) and A.B. (Mother), Appellant-Respondent, v. The INDIANA DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner, and Delaware County, Indiana CASA, Appellee-Petitioner.
    Court of Appeals Case No. 18A-JT-318
    Court of Appeals of Indiana.
    FILED July 31, 2018
    Attorney for Appellant: Ana M. Quirk, Muncie, Indiana
    Attorneys for Appellee the Indiana Department of Child Services: Curtis T. Hill, Jr., Attorney General of Indiana, Robert J. Henke, Deputy Attorney General, Indianapolis, Indiana
    Attorney for Appellee Delaware County, Indiana Casa: Jon L. Orlosky, Muncie, Indiana
   Bailey, Judge.

Case Summary

[1] A.B. ("Mother") challenges the juvenile court's decision to terminate her parental rights as to her five children who had previously been adjudicated Children in Need of Services ("CHINS"): Z.B., D.B., L.B., Me.B., (the "Siblings") and Ma.B (collectively, the "Children"). Notably, the Delaware County Department of Child Services ("DCS") opposed terminating Mother's parental rights with respect to Ma.B., but Ma.B's court-appointed special advocates (the "CASAs") pursued termination through counsel. Mother now presents the following consolidated and restated issues:

I. Whether a CASA has the statutory authority to prosecute a petition to terminate parental rights when DCS opposes termination; and
II. Whether there is sufficient evidence supporting the termination of Mother's parental rights.

[2] We affirm, but remand for correction of certain scrivener's errors.

Facts and Procedural History

[3] At some point, DCS alleged that the Children were CHINS, and, in May of 2015, Diana Robertson and Mary Fitzgerald became the Children's CASAs. In June of 2015, Ma.B. was adjudicated a CHINS, and Mother admitted certain CHINS allegations as to the Siblings, including:

a. On or about April 10, 2015, [Mother] entered into an Informal Adjustment with [DCS] due to educational neglect, substance abuse, home conditions, and lack of supervision.
b. [Mother] was positive on April 16, 2015 for methamphetamines and uses other illicit substances such as, but not limited to, heroin, methamphetamines and prescription narcotics.
c. Home conditions barely meet minimal standards and [M]other is struggling to maintain appropriate living conditions.
d. Mother struggles to control [Z.B.'s] behaviors as he is destructive, violent and injures the other children.

Ex. Vol. I at 26, 167; Ex. Vol. II at 58, 201.

[4] The Siblings were at one point placed with family. As to Ma.B., Mother consented to a modification of custody so that C.B. ("Father") became Ma.B.'s custodian, and Ma.B. began living with Father and his wife ("Stepmother").

[5] On September 30, 2016, DCS filed a petition to terminate Mother's parental rights as to the Siblings. On November 21, 2016, the CASAs filed a petition to terminate Mother's parental rights as to Ma.B. DCS and Mother then moved to dismiss the petition concerning Ma.B., arguing-among other things-that the CASAs could not prosecute a petition to terminate parental rights where DCS did not support the petition. The court denied the motions to dismiss and consolidated the proceedings concerning the Children. The court then held a fact-finding hearing on June 15, August 23, and October 18, 2017. The court took the matter under advisement, and later entered an order terminating Mother's parental rights to the Children.

[6] Mother now appeals.

Discussion and Decision

Statutory Authority

[7] Mother and DCS present what appears to be an issue of first impression: whether a CASA has the statutory authority to prosecute a petition to terminate parental rights when DCS opposes termination. We interpret statutes de novo . In re Bi.B. , 69 N.E.3d 464, 466 (Ind. 2017).

[B]efore interpreting a statute, we consider "whether the Legislature has spoken clearly and unambiguously on the point in question." Basileh v. Alghusain , 912 N.E.2d 814, 821 (Ind. 2009). If a statute is clear and unambiguous, we put aside various canons of statutory construction and simply "require that words and phrases be taken in their plain, ordinary, and usual sense." Id. Indeed, "[c]lear and unambiguous statutes leave no room for judicial construction." Id. We will find a statute ambiguous and open to judicial construction only if it is subject to more than one reasonable interpretation.

KS & E Sports v. Runnels , 72 N.E.3d 892, 898-99 (Ind. 2017).

[8] When a child is alleged to be a CHINS under certain statutory sections, the court must "appoint a guardian ad litem, court appointed special advocate, or both, for the child." Ind. Code § 31-34-10-3. The court is also obligated to do so if a parent opposes a petition to terminate parental rights. I.C. § 31-35-2-7(a). In the termination context, the CASA's role is "to represent and protect the best interests of the child in the termination proceedings." I.C. § 31-35-2-7(b).

[9] It is clear that a CASA may sign and file a petition to terminate parental rights when a child has been adjudicated a CHINS. Indeed, Indiana Code Section 31-35-2-4(a) provides as follows:

A petition to terminate the parent-child relationship involving a ... child in need of services may be signed and filed ... by any of the following:
(1) The attorney for the department.
(2) The child's court appointed special advocate.
(3) The child's guardian ad litem.

Moreover, it is equally clear that DCS represents the State's interests in termination proceedings: "Upon the filing of a petition under section 4 of this chapter, the attorney for the department shall represent the interests of the state in all subsequent proceedings on the petition." I.C. § 31-35-2-5.

[10] Mother and DCS read these statutes as prohibiting proceedings on a petition to terminate parental rights whenever DCS opposes the petition. They argue that DCS should not be burdened with involvement in termination proceedings that the State does not support. DCS further argues that letting a "CASA prosecute a termination petition is tantamount to letting a child prosecute a termination case against his or her parents." DCS Br. at 29. DCS also directs us to caselaw in the adoption context where we have strictly construed statutes to preserve the parent-child relationship in light of the fundamental importance of the parent-child relationship. See In re K.F. , 935 N.E.2d 282, 289 (Ind. Ct. App. 2010), trans. denied . The CASAs respond that because the legislature specifically authorized them to independently initiate termination proceedings, it follows that they can also independently prosecute these matters.

[11] We agree with the CASAs. An authorization to file a petition cannot be reasonably read to prohibit prosecuting that petition, and this plain reading in no way affects the elements or burden of proof for termination. Moreover, our legislature specifically created a mechanism for DCS-or a guardian ad litem or a CASA-to express opposition to a petition to terminate parental rights. That is, any "person described in section 4(a)" may-as DCS did here-file a motion to dismiss the petition, asserting "a compelling reason, based on facts and circumstances stated in the petition or motion, for concluding that filing, or proceeding to a final determination of, a petition to terminate the parent-child relationship is not in the best interests of the child." I.C. § 31-35-2-4.5(d)(1). That motion may be successful, but when it is not, we discern no impediment to proceeding with the petition to terminate parental rights. Thus, there was no error based upon DCS's opposition to the petition concerning Ma.B.

Sufficiency of the Evidence

[12] "A parent's interest in the care, custody, and control of his or her children is 'perhaps the oldest of the fundamental liberty interests.' " Bester v. Lake Cty. Office of Family & Children , 839 N.E.2d 143, 147 (Ind. 2005) (quoting Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ). Indeed, "the parent-child relationship is one of the most valued relationships in our culture." Id. at 147 (quotation marks removed). "Our General Assembly has thus set a high bar for terminating parental rights." In re Bi.B. , 69 N.E.3d at 465.

[13] Under Indiana Code Section 31-35-2-4(b)(2), a petition seeking to terminate the parent-child relationship must allege, in pertinent part:

(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six (6) months under a dispositional decree....
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child....
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the child.

The petitioner must prove each element by clear and convincing evidence. I.C. § 31-37-14-2. If the court finds that the allegations are true, "the court shall terminate the parent-child relationship." I.C. § 31-35-2-8(a). In doing so, the court must enter findings and conclusions, irrespective of whether the parties have made a Trial Rule 52 request. See I.C. § 31-35-2-8(c) ; Ind. Trial Rule 52. We will not "set aside the findings or judgment unless clearly erroneous," T.R. 52(A); clear error is "that which leaves us with a definite and firm conviction that a mistake has been made," Egly v. Blackford Cty. Dept. of Pub. Welfare , 592 N.E.2d 1232, 1235 (Ind. 1992). In reviewing for clear error, we look to "whether the evidence supports the findings, and whether the findings support the judgment." Steele-Giri v. Steele , 51 N.E.3d 119, 123 (Ind. 2016). Moreover, we neither reweigh the evidence nor judge the credibility of witnesses, In re R.S. , 56 N.E.3d 625, 628 (Ind. 2016), and we give "due regard ... to the opportunity of the trial court to judge the credibility of the witnesses," T.R. 52(A).

[14] Here, the juvenile court found that although Mother's substance abuse was an initial concern, substance abuse "was no longer a primary concern of DCS" by the time of the fact-finding hearing. App. Vol. II at 173. Indeed, much of that hearing-and the ensuing findings and conclusions-focused on issues related to Mother's ability to supervise the Children to ensure their safety. We note that at the time of the fact-finding hearing, Ma.B. was eleven years old and the Siblings were between three years old and ten years old.

[15] The court found that Mother began working with a therapist in the summer of 2015. The initial focus for therapy "was substance abuse based on the referral" from DCS, but that focus "quickly transitioned to mother's mental health and cognitive concerns based on the therapist's experience and observations." Id. at 175. Mother's therapist recommended a psychological evaluation, which revealed that Mother has cognitive disabilities that impact "her day-to-day living, including increased difficulty with problem-solving, lack of [judgment], difficulty interacting with peers in her environment, and difficulty with problem-solving on behalf of children." Id. at 176. The evaluation "revealed a full-scale I.Q. of 64" for Mother, and Mother received "a provisional diagnosis of a neurocognitive disorder due to a traumatic brain injury." Id. In view of Mother's "extremely low cognitive functioning, low academic functioning, and issues with memory and clear thinking," the psychologist recommended that Mother "receive supportive services to assist in her day-to-day tasks," and receive parenting education "based on indications of [Mother's] lack of empathy toward children and expectations of children." Id.

[16] Mother agreed to have a service provider act as payee for her disability benefits so she could receive assistance "with finding stable housing and managing her money." Id. at 174. With that support in place, Mother also began working with a child and family therapist who started therapeutically supervising Mother's visits in July of 2016; prior to that point, the visits were supervised but without therapeutic elements. The therapist was aware of the results of the psychological evaluation and "relied on those results in her therapeutic approach" with Mother. Id. at 176. During those therapeutically supervised visits, the therapist "observed significant conflict, arguing, [and] physical aggression" among the Children, and that Mother displayed a "lack of supervision." Id. at 177. Mother "was unable to focus on more than one child" and "failed to notice and intervene during physical aggression and fights." Id.

[17] In November 2016, a second therapist began helping to supervise visits, as the first therapist believed she "could not effectively work with [Mother] while at the same time keeping track of the children and ensuring their safety." Id. The court found that adding a therapist "was necessary both to ensure the safety" of the Children and "to effectively address parenting issues" with Mother. Id. Around this time-in October 2016-Ma.B.'s visitation with Mother was suspended. Ma.B. had exhibited instances of self-harm prior to October 2016, and failed to make any improvement in therapy sessions between February 2016 and October 2016. After suspending visitation, Ma.B. made "significant improvement, including being happier and more optimistic, reducing negative behavior, and progressing academically" to the point where she no longer requires an individualized education program at school. Id. at 100. There were also no instances of self-harm after suspending visitation.

[18] Over the course of Mother's therapeutically supervised visits, Mother made progress in some areas, including her ability to provide time-outs, but she "did not make progress in her ability to monitor and supervise." Id. Mother often "lost track" of the Children and was unaware of their whereabouts. Id. Although Mother asked what she could do to improve, and a therapist responsively set up extra meetings to help with Mother's parenting, Mother "did not attend th[ose] appointments."

Id. Moreover, at some point, Mother moved to Anderson, and her family case manager made efforts to transfer Mother's services there; when Mother subsequently moved back to Muncie, she "informed the service providers that she did not need their assistance and involvement." Id. at 178. Mother also registered for certain parenting classes in March of 2017 "but failed to attend any of the classes." Id. at 174.

[19] We note that mental or cognitive disabilities, standing alone, are not a proper basis for termination of parental rights. See In re V.A. , 51 N.E.3d 1140, 1147 (Ind. 2016). However, a court may consider these issues where "parents are incapable of or unwilling to fulfill their legal obligations in caring for their children." Egly , 592 N.E.2d at 1234. This is because "the purpose of terminating parental rights is not to punish parents, but to protect the children." Id. (citing Lassiter v. Dept. of Social Services , 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) ).

[20] The court ultimately found that Mother "is not capable of safely or effectively parenting" the Children, id. at 178, and the evidence favorable to the court's decision supports this finding. Moreover, this parenting issue-encompassing a lack of supervision and a struggle to control violent behaviors-was among the admitted CHINS allegations, and was an ongoing issue that led to continued placement outside Mother's home. We note also that there was no indication that Mother's cognitive functioning would improve; rather, Mother's therapist opined that Mother should continue to have a payee and, for the rest of her life, Mother would likely struggle with managing aspects of day-to-day life.

[21] Under statutory subsection (b)(2)(B), the juvenile court determined that there was a reasonable probability both that the continuation of the parent-child relationship posed a threat to the well-being of the Children and that the reasons for placement outside the home would not be remedied. The court also made the requisite determinations with respect to the other subsections, observing that the plan was for Ma.B. to remain in Father's care and also be adopted by Stepmother, and that the plan for the Siblings was to be adopted.

[22] Mother does not dispute whether the Children were out of her care for the statutory period or whether there was a satisfactory plan for the care and treatment of the Children. Instead, Mother appears to focus on the other elements, specifically asserting that the evidence does not indicate that the Children's "survival was threatened or that termination was in their best interests." Appellant's Br. at 32. With respect to Ma.B., Mother focuses on whether the "conditions that caused the removal ... have been remedied with the change of placement and custody to [Father]." Appellant's Br. at 29. DCS also argues that the evidence was insufficient with respect to Ma.B.

[23] In her brief, Mother directs us to evidence indicating that she participated in a variety of services, and made progress during the more than two years that the Children were placed outside her home.

However, we may not reweigh the evidence, which supports a conclusion that there is a reasonable probability that continuation of the parent-child relationship poses a threat to the well-being of the Children. See 31-35-2-4(b)(2)(B)(ii). Indeed, the lack of supervision and the attendant prospect of uncontrolled violence poses a threat to their safety.

[24] Mother and DCS argue that there was no threat to at least Ma.B. because Father had physical custody. To the extent Mother and DCS are arguing that termination of one parent's rights is inappropriate when a child can live with the other parent, it is true that termination is intended as a last resort, available only when all other reasonable efforts have failed. In re V.A. , 51 N.E.3d at 1151-52. However, our legislature has not articulated different termination standards for children placed with a parent and for children placed in foster care-and the evidence indicates that Mother remained unable to safely care for Ma.B., even after participating in extensive services aimed toward reunification. This inability persisted whether or not DCS's ultimate plan was for Ma.B. to remain in Father's custody and be adopted by Stepmother. Moreover, the court found that it would be very traumatic for Ma.B. to return to Mother's care. Finally, we are not persuaded by Mother's assertion that, in light of the custody arrangement with Father, the potential for harm to Ma.B. was too speculative to support terminating parental rights.

[25] As to the best interests of the Children, in determining whether termination of parental rights is in the best interests of a child, the court is required to look at the totality of the evidence. In re D.D. , 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans. denied . In doing so, the court must subordinate the interests of the parents to those of the children involved. Id. The court need not wait until a child is irreversibly harmed before terminating the parent-child relationship. McBride v. Monroe Cty. Office of Family & Children , 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Moreover, the testimony of service providers may support a finding that termination is in the child's best interests. Id.

[26] Here, the evidence favorable to the court's decision indicates that the Children would not be safe in Mother's care. Moreover, Diana Robertson-the CASA called to testify at the fact-hearing-testified that terminating Mother's parental rights would serve the best interests of the Children. In rendering her opinion, the CASA expressed particular concern about Ma.B.-and Ma.B.'s therapist also opined that termination was in Ma.B.'s best interests. Thus, we conclude that there is sufficient evidence concerning the best interests of the Children.

[27] There is clear and convincing evidence supporting the court's decision to terminate Mother's parental rights as to the Children, and we therefore affirm the decision of the juvenile court. However, we observe-and DCS has pointed out-that the court made scrivener's errors in entering orders pertaining to D.B., L.B., and Me.B. That is, although each order contains a caption for the cause specific to each child, and each order identifies the captioned child in its findings, the concluding language refers to Z.B. when ultimately ordering the termination of parental rights. We remand for correction of these three orders.

Conclusion

[28] Because a CASA has the statutory authority to independently prosecute a petition to terminate parental rights, it was not improper for the CASAs to prosecute the petition concerning Ma.B. while DCS opposed termination. Moreover, there was sufficient evidence supporting the termination of Mother's parental rights as to the Children. However, we are remanding for correction of scrivener's errors in the orders pertaining to D.B., L.B., and Me.B.

[29] Affirmed and remanded.

Crone, J., and Brown, J., concur.

      The order also terminated the parental rights of S.B., who was the father of the Siblings; S.B. testified in favor of adoption, and does not actively participate in this appeal. Moreover, we note that there was no petition to terminate the parental rights of Ma.B.'s father, C.B.; he participated in the proceedings as an interested party, but also does not actively participate in this appeal.

      DCS did not support the petition because Ma.B. was already placed with a parent. DCS and Mother asserted that Ma.B. was safe with Father as her physical custodian and that "[s]evering the parental rights of the mother is extreme and unnecessary where the child can be protected by a parent." App. Vol. II at 55, 66.

      To the extent that DCS relies upon In re S.G. , 67 N.E.3d 1138 (Ind. Ct. App. 2017), that case involved a due process challenge to the constitutionality of a statute-and there is no constitutional challenge here.

      For each child, the court entered separate findings and conclusions. Where these findings and conclusions are identical, we cite only to the order concerning Z.B.

      There were other identified issues, such as Mother's struggles with maintaining a stable residence. However, as we need only identify sufficient evidence to support the court's decision, we elect not to discuss every issue identified in the findings or addressed in the parties' briefs.

      In one way or another, much of DCS's argument focuses on the plan for stepparent adoption. At one point, DCS argues that "the court's satisfactory plan conclusion is ... clearly erroneous" because the plan did not require terminating Mother's parental rights through a termination proceeding. DCS Br. at 26. DCS argues thusly: "[w]hile it may be a satisfactory plan if rights are terminated, it is also a proper and statutor[ily] valid permanency plan that does not require the termination of Mother's parental rights to achieve it." Id. DCS has not persuaded us that the court clearly erred in determining that there was a satisfactory plan.

      As we have concluded that there is sufficient evidence supporting at least one of the elements under subsection (b)(2)(B), we do not address arguments related to whether Ma.B.'s custodial arrangement with Father adequately remedied the conditions that led to her removal from Mother's home.

      Mother briefly suggests that the filing of the petition as to Ma.B. "appears to be vindictive" because the relationship between Diana Robertson and Mother had deteriorated in the wake of an allegation that Ms. Robertson battered Z.B. Appellant's Br. at 29. Mother also directs our attention to the number of CASA-related individuals that attended the hearing. Nonetheless, we reiterate that we cannot reweigh the evidence.

      DCS argues that termination was not in Ma.B.'s best interests in part because the plan was for Stepmother to adopt Ma.B., and termination would affect Ma.B.'s "ability to benefit from Mother's social security disability payments as well as to inherit from Mother." Appellee's Br. at 26. We note, however, that for a biological parent not married to the adoptive stepparent, the effect of adoption is to relieve the biological parent "of all legal duties" and divest the parent "of all rights with respect to the child"-and the act of adoption also affects intestate succession. See I.C. §§ 31-19-15-1, -2; I.C. § 29-1-2-8.


source: Caselaw Access Project

author: Friedlander, Senior Judge.

license: Public Domain

text:
    David PFLUGH, Appellant-Petitioner, v. INDIANAPOLIS HISTORIC PRESERVATION COMMISSION sitting as the Indianapolis Historic Preservation Commission and as the Board of Zoning Appeals Division of Marion County, Indiana, Neighborhood/Downtown Zoning Assistance, Inc., 855 North East Street, LLC, and Paul Vezolles, Appellees-Respondents.
    Court of Appeals Case No. 18A-PL-351
    Court of Appeals of Indiana.
    FILED August 1, 2018
    Appellant Pro Se: David L. Pflugh, Indianapolis, Indiana
    Attorney for Appellees: 855 North East Street, LLC and Paul Vezolles: Jeffrey D. Stemerick, Taft Stettinius & Hollister LLP, Indianapolis, Indiana
    Attorney for Appellee Indianapolis Historic Preservation Commission: Thomas J.O. Moore, Office of Corporation Counsel, Indianapolis, Indiana
   Friedlander, Senior Judge.

[1] Paul Vezolles is a member of 855 North East Street, LLC (collectively "Vezolles"), which owns property at that address in Indianapolis ("the Site"). Prior to the Indianapolis Historical Preservation Commission ("IHPC") proceedings at issue, the Site was zoned SU-7, which only allows charitable, philanthropic, and not-for-profit use. The Site sits between north East Street and Park Avenue just south of 9th Street and is in the Chatham-Arch and Massachusetts Avenue Historic Preservation District. David Pflugh is an attorney who lives at 847 North Park Avenue, directly across Park Avenue from the northeast corner of the Site.

[2] The Site currently is occupied by a vacant nursery school building constructed in the 1970s and a single house at 812 North Park Avenue that was built in 1894. Across Park Avenue to the east are historic homes, across 9th Street to the north is the Chatham Center (which includes apartments and retail space, including a pet groomer, a hair salon, and a doctor's office), and across East Street to the west are the fifteen-story Lugar Towers apartments. The Chatham-Arch and Massachusetts Avenue Historic Area Preservation Plan ("the CAMA Plan"), adopted in 2006, designates the nursery school building as "Non-Contributing Non-Historic[.]" Appellees' App. Vol. 2, p. 142. The CAMA Plan has a site-specific recommendation for the Site that calls for D-8 zoning with "higher density residential, such as town houses, along East St." and "lower density, single-family and two-family houses, along Park [Ave.]." Id. at 167.

[3] On September 1, 2016, Vezolles petitioned the IHPC to rezone the Site from SU-7 to what was ultimately changed to D-8 to allow for a new development called Chatham Park (the "Project") to replace the vacant nursery school building. Vezolles proposed building seven single-family homes and two duplexes on the east side of the Site and two condominium buildings with a total of fifty-five units on the west side. Following is a site plan which provides an overview of the area and depicts how the Site would look once the Project is completed:

Appellees' Br. p. 11.

[4] The IHPC held four public hearings on December 7, 2016; February 1, 2017; April 5, 2017; and May 3, 2017, at which concerned citizens, including Pflugh, testified. On May 3, 2017, the IHPC entered written findings approving the Project. Specifically, the IHPC rezoned the entire Site to D-8, granted a use variance permitting a small commercial use in one corner of the Site, granted four development-standard variances, and issued a certificate of appropriateness ("COA"). The retail space is directly across 9th Street from similar retail space in Chatham Center and is 2400 square feet, and the use variance specifically excludes twenty-nine categories of commercial use that could be detrimental to the neighborhood. The zoning commitments include other restrictions, including hours restrictions and noise restrictions.

[5] In addition to the use variance for retail, the IHPC granted Vezolles four development-standard variances, allowing for less open space at the Site and reducing the livability-space ratio and floor-area ratio for the buildings to be built along East Street. Both variances are typically needed for residential development in downtown urban areas. Without the livability-ratio variance, the Site could not be developed with higher-density residential structures along East Street as called for in the CAMA Plan, and high-density residential development would likely be required along Park Avenue (directly across from Pflugh's house) where the CAMA Plan calls for single- and two-family dwellings.

[6] On June 2, 2017, Pflugh petitioned for judicial review of the grant of variances and the COA. Pflugh challenged the use variance, the development standard variance for less open space than required, the development standard variance for livability ratio, and the COA. On January 22, 2018, the trial court denied Pflugh's petition. The trial court concluded that Pflugh lacked standing to seek judicial review because Pflugh is not aggrieved by the IHPC's decision. The trial court also concluded that even if Pflugh had standing, the IHPC's decision was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; without observance of procedure required by law; or unsupported by substantial evidence." Appellees' App. Vol. 2, p. 30.

1. Whether Pflugh Has Standing to Challenge the IHPC's Decision

[7] A trial court's decision dismissing a case for lack of standing is reviewed de novo. Reed v. Plan Comm'n of Town of Munster , 810 N.E.2d 1126 (Ind. Ct. App. 2004), trans denied . "Standing is a judicial doctrine that focuses on whether the complaining party is the proper party to invoke the trial court's jurisdiction." Liberty Landowners Assoc., Inc. v. Porter Cty. Comm'rs , 913 N.E.2d 1245, 1250 (Ind. Ct. App. 2009), trans. denied . Standing must thus be analyzed before the merits of the case because if a person has no standing, then the Court has no jurisdiction to determine the merits. See id.

[8] Indiana Code section 36-7-4-1603(a) (2011) provides as follows:

(a) The following have standing to obtain judicial review of a zoning decision:
(1) A person to whom the zoning decision is specifically directed.
(2) A person aggrieved by the zoning decision who participated in the board hearing that led to the decision, either:
(A) by appearing at the hearing in person, by agent, or by attorney and presenting relevant evidence; or
(B) by filing with the board a written statement setting forth any facts or opinions relating to the decision.
(3) A person otherwise aggrieved or adversely affected by the zoning decision.

The IHPC's decision was not specifically directed at Pflugh, but he attended at least one hearing and presented evidence. Pflugh therefore falls under subsection (2), which requires that he be "aggrieved" to have standing to challenge the IHPC's decision.

[9] In Bagnall v. Town of Beverly Shores , 726 N.E.2d 782 (Ind. 2000), the Indiana Supreme Court concluded that "[t]o be aggrieved, the petitioner must experience a 'substantial grievance, a denial of some personal or property right or the imposition ... of a burden or obligation.' " Id. at 786 (quoting Union Twp. Residents Ass'n, Inc. v. Whitley Cty. Redev. Comm'n , 536 N.E.2d 1044, 1045 (Ind. Ct. App. 1989) ). "The board of zoning appeals's decision must infringe upon a legal right of the petitioner that will be 'enlarged or diminished by the result of the appeal' and the petitioner's resulting injury must be pecuniary in nature." Id. (quoting Union Twp. Residents Ass'n , 536 N.E.2d at 1045 ). A petitioner must also demonstrate a special injury not common to the community as a whole. Id. (citing Robertson v. Bd. of Zoning Appeals , 699 N.E.2d 310, 315 (Ind. Ct. App. 1998) ).

[10] Pflugh seems to argue that his status as an adjoining property owner automatically renders him "aggrieved." While it is true that "[a]djoining or surrounding landowners may ... be persons 'aggrieved[,]' " Stout v. Mercer , 160 Ind. App. 454, 462, 312 N.E.2d 515, 520 (1974) (emphasis added), "proximity of the [petitioners'] properties to the alleged harm is not dispositive in determining whether they have standing." Sexton v. Jackson Cty. Bd. of Zoning Appeals , 884 N.E.2d 889, 894 (Ind. Ct. App. 2008). Pflugh apparently interprets the Indiana Supreme Court's opinion in Bagnall as setting forth the proposition that adjacent property owners are automatically aggrieved. A close reading of Bagnall indicates otherwise.

[11] Far from holding that adjacent property owners are automatically aggrieved, the Bagnall Court merely noted that the appellee conceded "that a sufficient legal interest is present in zoning cases if the petitioner owns property that is 'adjacent' to or 'surrounding' the subject property[,]" Bagnall , 726 N.E.2d at 786, which is not the same thing as explicitly adopting the proposition. Moreover, the Court did not reach the question of the aggrieved status of adjacent landowners such as Pflugh, as the property at issue in that case was not, in fact, adjacent to the rezoned property. Finally, after mentioning the concession, the Court reiterated that an aggrieved person must present evidence that the "zoning variance would result in infringement of a legal right resulting in pecuniary injury as required by [ Williams-Woodland Park Neighborhood Ass'n v. Bd. of Zoning Appeals of the City of Ft. Wayne , 638 N.E.2d 1295, 1299 (Ind. Ct. App. 1994) ], or a special injury beyond that sustained by the entire community as required by Robertson , 699 N.E.2d at 315." Id. (emphases added).

[12] In short, Pflugh is not "aggrieved" simply because he lives next to the Site. Pursuant to Bagnall , Pflugh must show pecuniary or special injury, and the trial court specifically found that he had failed to do so:

Even given the proximity of Pflugh's property to the Site on which the variances have been granted, Pflugh has not demonstrated the type of substantial grievance or pecuniary harm required to show he has been "aggrieved." With regard to the use variance, Pflugh complains there will be additional noise and traffic near his home, but does not direct this Court to any other harms. Our Indiana Court of Appeals has held that increased noise and traffic do not qualify as a "special injury" and thus additional noise and traffic is insufficient to confer standing as a matter of law. Reed v. Plan Comm'n , 810 N.E.2d 1126, 1128 (Ind. Ct. App. 2004). With regard to the development standard variances, Pflugh argues that "[i]t is foreseeable that [the variance] will put children in the street batting baseballs into Pflugh's yard because there is so little open space[.]" (Pflugh Reply Br. at 16.) Finally, with regard to the COA, Pflugh makes no argument that he is harmed by its issuance.

Appellees' App. Vol. 2, p. 21. The trial court further found that "[e]ach of the arguments Pflugh makes regarding harm are harms that would be common to the community as a whole. As Pflugh has failed to show the variances cause a special injury to him, he has failed to meet his burden of showing he has been aggrieved." Id. at 21-22.

[13] The trial court found that Pflugh failed to establish that he was particularly harmed, and it is well-settled that we will not set aside a trial court's findings unless they are clearly erroneous. Bagnall , 726 N.E.2d at 786 (citing Ind. Trial Rule 52(A) and Ind. State Highway Comm'n v. Curtis , 704 N.E.2d 1015, 1017 (Ind. 1998) ). Pflugh does not claim, much less establish, that the trial court's findings are clearly erroneous. In the end, none of Pflugh's specific complaints allege any fiduciary harm or a harm that would not be common to the community as a whole.

[14] This is consistent with our decision in MacFadyen v. City of Angola , 51 N.E.3d 322 (Ind. Ct. App. 2016), in which we concluded that an adjoining landowner did not have standing to challenge a zoning board decision. Even though the petitioner's land adjoined the parcel at issue, this Court held that the petitioners lacked standing because they could not show that they were prejudiced or aggrieved by the decision. Id. The fact that Pflugh's property adjoins the Site does not automatically make Pflugh "aggrieved," and he has failed to allege or establish the necessary pecuniary or special injury to grant him standing to challenge IHPC's rezoning decision on appeal.

2. Public Standing

[15] Pflugh contends that he has public standing to challenge the IHPC's decision. "The public standing doctrine applies in cases where public, rather than private, rights are at issue and in cases that involve the enforcement of a public rather than a private right." Graphic Packaging Int'l, Inc. v. City of Indpls. , 51 N.E.3d 423, 428 (Ind. Ct. App. 2016) (citing State ex rel. Cittadine v. Ind. Dep't. of Transp. , 790 N.E.2d 978, 980 (Ind. 2003) ). Pflugh, however, did not raise this public standing argument in the trial court and has therefore waived it for appellate review. See, e.g. , Liberty Landowners , 913 N.E.2d at 1251 ("[T]he Commissioners point out that Liberty Landowners did not raise the issue of public standing in the trial court. [...] Thus, Liberty Landowners has waived the issue.").

3. Appellate Fees

[16] Indiana Rule of Appellate Procedure 66(E) provides, in part, "The Court may assess damages if an appeal, petition, or motion, or response is frivolous or in bad faith. Damages shall be in the Court's discretion and may include attorney's fees."

Our discretion to award attorney fees under Indiana Appellate Rule 66(E) is limited, however, to instances when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay. Orr v. Turco Mfg. Co., Inc. , 512 N.E.2d 151, 152 (Ind. 1987). Additionally, while Indiana Appellate Rule 66(E) provides this Court with discretionary authority to award damages on appeal, we must use extreme restraint when exercising this power because of the potential chilling effect upon the exercise of the right to appeal. Tioga Pines Living Ctr., Inc. v. Indiana Family and Social Svcs. Admin. , 760 N.E.2d 1080, 1087 (Ind. Ct. App. 2001), trans. denied.
Indiana appellate courts have formally categorized claims for appellate attorney fees into "substantive" and "procedural"
bad faith claims. Boczar v. Meridian Street Found. , 749 N.E.2d 87, 95 (Ind. Ct. App. 2001). To prevail on a substantive bad faith claim, the party must show that the appellant's contentions and arguments are utterly devoid of all plausibility. Id.

Thacker v. Wentzel , 797 N.E.2d 342, 346 (Ind. Ct. App. 2003).

[17] We conclude that Appellees have failed to establish that all of Pflugh's contentions are utterly devoid of plausibility. As we do not reach the merits of Pflugh's challenges to the IHPC's decision, we express no opinion on their frivolity or bad faith. At the very least, however, despite ultimately deciding that Pflugh lacks standing to challenge the IHPC's rezoning decision, we acknowledge that he made at least a colorable argument that he would qualify as an "aggrieved" person by living across the street from the Site. Appellees have failed to establish that Pflugh's entire appeal is so frivolous or in bad faith as to warrant the award of appellate attorney's fees.

[18] We affirm.

Riley, J., and May, J., concur.

      D-8 zoning allows for single-family, two-family, and multifamily residential development.


author: Vaidik, Chief Judge.

text:
    Beverly K. OSWALD, Appellant-Plaintiff, v. Tarek SHEHADEH and Falon Vela, Appellees-Defendants
    Court of Appeals Case No. 29A02-1711-PL-2627
    Court of Appeals of Indiana.
    FILED August 6, 2018
    Attorney for Appellant: Charles E. Oswald, Harrison & Moberly, LLP, Indianapolis, Indiana
    Attorneys for Appellee: Tarek Shehadeh: Christopher J. Evans, Shana D. Tesnar, Adler Tesnar & Whalin, Noblesville, Indiana
   Vaidik, Chief Judge.

Case Summary

[1] Beverly Oswald, an Indiana resident, sued Tarek Shehadeh and Falon Vela, Arkansas residents, in Indiana for breach of contract. Shehadeh and Vela moved to have the suit dismissed for lack of personal jurisdiction. The trial court agreed that Indiana lacked personal jurisdiction over the defendants and dismissed the suit.

[2] On appeal, Oswald contends that Shehadeh and Vela had sufficient minimum contacts in Indiana to give Indiana specific personal jurisdiction over the defendants and that exercise of personal jurisdiction over the defendants is reasonable. Shehadeh argues that personal jurisdiction does not exist in Indiana, and, even if he and Vela are subject to personal jurisdiction in Indiana, the contract at issue contains a forum-selection clause requiring Oswald's claim to be heard in Arkansas. We agree with Oswald that Indiana can exercise personal jurisdiction over Shehadeh and Vela and that it is reasonable for Shehadeh and Vela to defend this matter in Indiana. Furthermore, the language of the contract is not a forum-selection clause but rather a choice-of-law provision requiring the trial court to apply Arkansas law. We reverse the trial court's order and remand for further proceedings.

Facts and Procedural History

[3] Oswald is the sole owner of Eville Louie, LLC, which owns and operates Bar Louie restaurants and is headquartered in Indiana. In January 2010, Eville Louie owned and operated two Bar Louie Restaurants in the Little Rock, Arkansas area-Little Rock Louie, LLC, and North Rock Louie, LLC. One month later, Oswald interviewed candidates for the general-manager position of the Little Rock Louie restaurant. The interviews took place in Indiana, and Shehadeh was one of the applicants interviewed. During his interview, he expressed an interest in buying an ownership stake in Little Rock Louie and North Rock Louie. At the time, Oswald declined his offer but hired Shehadeh as the Little Rock Louie general manager. Shehadeh returned to Indiana in April 2010 to participate in a mandatory two-week Bar Louie training program. As part of his duties as general manager, Shehadeh repeatedly contacted Oswald and other Indiana residents, and he traveled to Indiana to attend Bar Louie management meetings.

[4] In 2015, Shehadeh and Vela contacted Oswald in Indiana and expressed their interest in buying Little Rock Louie and North Rock Louie. Oswald agreed to sell the Arkansas restaurants to the pair. The sales contract was signed and executed in September 2015. As part of the terms of the sale, Shehadeh and Vela "assume[d] and agree[d] to pay all lender obligations relative to both businesses." Appellant's App. Vol. II p. 13. These obligations included twelve promissory notes-eight of which were held by Indiana residents or Indiana corporations. Shehadeh and Vela also agreed to pay Oswald annual installments for the cost of the restaurants. At all relevant times, Oswald lived in Indiana.

[5] After Shehadeh and Vela began operating the Arkansas restaurants, they continued to use an Indiana payroll company, an Indiana insurance agent, and Indiana accountants. Shehadeh also "received corporate mail in Indiana" and continued to receive mail there as of October 2017. Id. at 51.

[6] In January 2017, Oswald sued Shehadeh and Vela in Hamilton County, Indiana, for breach of contract. Shehadeh and Vela separately moved for the case to be dismissed for lack of personal jurisdiction. Oswald responded and filed an affidavit in support of her position. Shehadeh replied and filed his own affidavit in support of his motion. After the hearing on the motions, the trial court concluded that Indiana lacked personal jurisdiction over Shehadeh and Vela and dismissed the case.

[7] Oswald now appeals.

Discussion and Decision

[8] Oswald contends that the trial court erred when it granted the motions to dismiss because (1) there are sufficient minimum contacts to establish personal jurisdiction over Shehadeh and Vela and (2) Shehadeh and Vela have failed to prove that exercise of personal jurisdiction over them is unreasonable.

[9] Before we address Oswald's personal-jurisdiction argument, we first discuss Shehadeh's argument that paragraph 5.2 of the contract is a forum-selection clause that requires Oswald to bring her claim in Arkansas. We disagree. Paragraph 5.2 reads, "This agreement shall be interpreted and enforced in accordance with the laws of the State of Arkansas." Appellant's App. Vol. II p. 13. We have long held that language requiring only that an agreement shall be interpreted and enforced under the laws of a specific state is a choice-of-law provision and not a forum-selection clause. See Dexter Axle Co. v. Baan USA, Inc. , 833 N.E.2d 43, 46 (Ind. Ct. App. 2005) (concluding that the software agreement contained only a choice-of-law provision because it required that the agreement "be interpreted and construed in accordance with the laws of Virginia"); Albright v. Edward D. Jones & Co. , 571 N.E.2d 1329, 1332 (Ind. Ct. App. 1991) (concluding that the clause, "This agreement and its enforcement shall be governed by the law of the State of Missouri," was a choice-of-law provision), trans. denied . To be a forum-selection clause, the provision must include language indicating that the parties have consented to have a particular jurisdiction hear a legal dispute arising under the contract. See Dexter Axle Co. , 833 N.E.2d at 47 (finding that the consulting agreement contained both choice-of-law and forum-selection clauses because the agreement stated, "This Agreement will be construed and controlled by the laws of the State of California, U.S.A.... and the parties mutually consent to exclusive jurisdiction and venue in the state and federal courts sitting in Santa Clara County, California." (emphasis added) );

Bowlers Country Club v. Royal Links USA, Inc. , 846 N.E.2d 732, 734 n.2 (Ind. Ct. App. 2006) ("The RLU forum selection clause provides: 'Any action related to this Agreement may be brought only in the courts of Lucas County, Ohio, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of Ohio, Western Division. Each party consents to the exclusive jurisdiction of such courts[.]' " (emphasis added) ), trans. denied. Paragraph 5.2 does not state that Oswald, Shehadeh, and Vela consent to the exclusive jurisdiction of Arkansas or any similar language. Rather, the paragraph only requires that Arkansas law be applied by whatever court hears a dispute arising under the contract. This is a choice-of-law provision, not a forum-selection clause.

[10] We turn now to Oswald's personal-jurisdiction argument. Personal jurisdiction is a question of law, which we review de novo. LinkAmerica Corp. v. Cox , 857 N.E.2d 961, 965 (Ind. 2006). We do not defer to the trial court's legal conclusion on whether personal jurisdiction exists. Id. Personal jurisdiction turns on the facts, "namely the extent of a defendant's contacts with the forum, and ordinarily a trial court's factual findings on that point would be reviewed for clear error." Wolf's Marine, Inc. v. Brar , 3 N.E.3d 12, 15 (Ind. Ct. App. 2014). However, the trial court did not issue any findings of fact and made its ruling based on the paper records submitted by the parties and the arguments of counsel. "In such a case, we are in as good a position as the trial court to determine the existence of jurisdictional facts and will employ de novo review as to those facts." Id. (quotations omitted).

[11] Indiana Trial Rule 4.4(A) -Indiana's "long-arm" rule for exercising personal jurisdiction over out-of-state defendants-permits exercising personal jurisdiction in any manner that is consistent with the Due Process Clause of the Fourteenth Amendment to the United States Constitution. LinkAmerica , 857 N.E.2d at 965. The Due Process Clause "requires that before a state may exercise jurisdiction over a defendant, the defendant must have 'certain minimum contacts with [the state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.' " Id. at 967 (quoting Int'l Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ). Indiana trial courts are courts of general jurisdiction, and jurisdiction is presumed. Keesling v. Winstead , 858 N.E.2d 996, 1000 (Ind. Ct. App. 2006). "Therefore, the plaintiff need not allege jurisdiction in its complaint." Id. (citations omitted). Once personal jurisdiction is challenged, usually by the defendant, "the plaintiff must present evidence to show that there is personal jurisdiction over the defendant." Id. Once the plaintiff satisfies her burden, the defendant must then present "a compelling case that the presence of some other considerations would render jurisdiction unreasonable." Burger King Corp. v. Rudzewicz , 471 U.S. 462, 477, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).

[12] Personal jurisdiction may be established in one of two ways. First, if the defendant's contacts with the forum state were so "continuous and systematic" that the defendant "should reasonably anticipate being haled into the courts of that state for any matter, then the defendant is subject to general jurisdiction[.]" LinkAmerica , 857 N.E.2d at 967. Even if the defendant's contacts are not "continuous and systematic," personal jurisdiction may be exercised "if the controversary is related to or arises out of the defendant's contacts with the forum state." Id. This is specific jurisdiction, and it requires that the "defendant purposefully availed itself of the privilege of conducting activities within the forum state so that the defendant reasonably anticipates being haled into court there." Id.

[13] Oswald contends that specific jurisdiction exists because: Shehadeh and Vela solicited Oswald in Indiana for the sale of her Arkansas restaurants; Shehadeh and Vela signed the sales contract and sent it to Indiana for Oswald to sign; the payment for the restaurants was sent to Indiana; Shehadeh and Vela assumed many of Oswald's debts with Indiana vendors; after taking over operational control of the restaurants, Shehadeh and Vela continued to use Indiana vendors for the company payroll, insurance, and accounting; and Shehadeh maintained a corporate mailbox in Indiana for the restaurants. Shehadeh does not rebut any of Oswald's claims; rather, he contends that "enter[ing] into a contract with an Indiana resident, is, without more, insufficient to subject him to suit in Indiana." Appellee's Br. p. 16. Shehadeh is correct; a contract, by itself, is insufficient to subject him to suit in Indiana. See Burger King , 471 U.S. at 478, 105 S.Ct. 2174 ("If the question is whether an individual's contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party's home forum, we believe the answer clearly is that it cannot."). But, as Oswald points out, there was more than just a contract in this matter; there were multiple contacts with Indiana, some of which are still ongoing.

[14] Nevertheless, Shehadeh relies on our decision in Wolf's Marine to support his contention that Indiana does not have personal jurisdiction. In Wolf's Marine , an Indiana resident sued a Michigan company in Indiana for breach of contract and claimed specific personal jurisdiction. The Indiana resident made the initial contact with the company in Michigan, the contract was for a limited duration and scope, the contract was fully executed in Michigan, and no goods were delivered to or from Indiana. We concluded that the Michigan company did not have sufficient minimum contacts with Indiana to permit the state to exercise specific jurisdiction over it. We find that Shehadeh's reliance on this case is misplaced. Unlike Wolf's Marine , Shehadeh solicited Oswald in Indiana to sell her restaurants. The contract was a multi-year agreement requiring Shehadeh and Vela to make annual payments to Oswald in Indiana. And, as already discussed, after the contract was executed Shehadeh and Vela maintained multiple business relationships with Indiana companies and residents and maintained a mailbox in Indiana for the restaurants. We conclude that Oswald has met her burden of proving that Shehadeh and Vela have sufficient minimum contacts related to the contract in Indiana for there to be specific personal jurisdiction here.

[15] Our inquiry does not stop here, however. We must also ensure that it is reasonable for Shehadeh and Vela to litigate this matter in Indiana. "[I]f the defendant has contacts with the forum state sufficient for general or specific jurisdiction, due process requires that the assertion of personal jurisdiction over the defendant is reasonable." LinkAmerica , 857 N.E.2d at 967. Reasonableness is determined by balancing five factors:

(1) the burden on the defendant; (2) the forum State's interest in adjudicating the dispute; (3) the plaintiff's interest in obtaining convenien[t] and effective relief; (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several States in furthering fundamental substantive social policies.

Id. at 967-68 (citing Burger King , 471 U.S. at 476-77, 105 S.Ct. 2174 ). The burden is on the defendant to present "a compelling case that the presence of some other considerations would render jurisdiction unreasonable." Burger King , 471 U.S. at 477, 105 S.Ct. 2174.

[16] Shehadeh claims that it is unduly burdensome on him to travel to Indiana to litigate this matter because he is a resident of Arkansas, bought businesses located in Arkansas, and "signed a contract which he might have reasonably believed would not only be governed by Arkansas law but also enforced in the state of Arkansas, should that become necessary." Appellee's Br. p. 19 (emphasis added). He also points out that the contract discloses the involvement of Arkansas lenders. Shehadeh, however, does not state that any evidence or witnesses in support of his defense would become unavailable if the case were litigated in Indiana. He has failed to show how proceeding in Indiana will burden him.

[17] As for factor two, Shehadeh states, "Arkansas clearly has a more substantial interest than Indiana in adjudicating this dispute." Id. He then lays out all of the reasons why Arkansas is interested in adjudicating this dispute. But the question isn't whether another state has an interest in adjudicating the dispute; it is whether Indiana, as the forum state, has an interest in adjudicating the dispute. Shehadeh has failed to meet his burden on the second factor.

[18] Shehadeh concedes "that it is likely convenient for Oswald to litigate the merits of this case in an Indiana forum." Id. at 20. He then argues that this convenience does not outweigh the "disadvantages occasioned upon [him] in having to litigate this dispute in a foreign forum[.]" Id. Shehadeh's argument is unrelated to the factor being weighed. He has conceded factor three in favor of Oswald.

[19] Regarding the fourth factor-the interstate judicial system's interest in obtaining the most efficient resolution of controversies-Shehadeh correctly points out that if Oswald succeeds on the merits of her claim, she will have to have the judgment enforced in Arkansas. Shehadeh, however, does not point to any case law that says Arkansas will not enforce an out-of-state judgment. To the contrary, "The State of Arkansas must give full faith and credit to foreign judgments under the U.S. Constitution." Amant v. Callahan , 341 Ark. 857, 20 S.W.3d 896, 898 (2000) (citing U.S. Const. art. 4, § 1 ; Ark. Code Ann. § 16-66-602 ; First Commercial Trust Co. v. Rank , 323 Ark. 390, 915 S.W.2d 262 (1996) ). Shehadeh also contends that Arkansas should hear the case because paragraph 5.2 of the contract requires the court to apply Arkansas law. But he offers no argument as to why Indiana courts are incapable of correctly interpreting and applying Arkansas law. Our trial courts have historically adjudicated matters requiring them to interpret and apply a foreign jurisdiction's law. See Berberena v. State , 86 N.E.3d 199 (Ind. Ct. App. 2017) (comparing Illinois and Indiana statutes to determine if defendant was a serious violent felon); Hollingsworth v. State , 907 N.E.2d 1026 (Ind. Ct. App. 2009) (comparing Arkansas and Indiana statutes to determine if defendant was a serious violent felon); Mann v. State , 754 N.E.2d 544 (Ind. Ct. App. 2001) (comparing Ohio and Indiana statutes for enhanced felony conviction).

[20] As to the fifth and final factor, Shehadeh states that the connection to this matter is "real and tangible for the state of Arkansas in a way that is not for Indiana, and the truth of this proposition seems rather obvious." Appellee's Br. p. 20. He does not elaborate on this statement nor does he make an argument for why litigating this matter in Arkansas would further fundamental and substantive social policies. Again, his argument is unrelated to the factor being weighed.

[21] Balancing all five factors, we conclude that Shehadeh has failed to meet his burden to present a compelling case for why litigating this dispute in Indiana is unreasonable. In sum, Shehadeh and Vela have sufficient minimum contacts with Indiana for the court to exercise personal jurisdiction over them, and their due-process rights will not be violated by requiring them to litigate this matter in Indiana.

[22] Reversed and remanded.

Pyle, J., and Barnes, Sr. J., concur.

      The trial court's order provides that the matter was dismissed under Indiana Trial Rule 12(B)(1) -lack of subject-matter jurisdiction. Appellant's App. Vol. II p. 6. However, on appeal, both Oswald and Shehadeh state that the case was dismissed for lack of personal jurisdiction. Appellant's Br. p. 11; Appellee's Br. p. 9 n.1 ("Appellee is compelled to conclude that lack of subject matter jurisdiction was likely not the substantive basis for the trial court's dismissal of Appellant's case below."). Based on our review of the record, we agree with the parties that the trial court's order contains a typographical error and that the court intended to dismiss this case under Indiana Trial Rule 12(B)(2) -lack of personal jurisdiction.

      Vela was unrepresented during the trial-court proceedings and did not file a brief on appeal. In cases where an appellee fails to submit a brief, we will not undertake the burden of developing arguments on her behalf. Orlich v. Orlich , 859 N.E.2d 671, 673 (Ind. Ct. App. 2006). Instead, we "apply a less stringent standard of review" and will reverse upon a showing of prima facie error, which is error "at first sight, on first appearance, or on the face of it." Id.

      Even if this case were litigated in Arkansas, we are convinced that the Arkansas court would reach the same conclusion that this language is a choice-of-law provision. See Goodwin v. Magness Oil Co. , CV-17-249, 2018 WL 2245652, 552 S.W.3d 26 (Ark. Ct. App. May 16, 2018) (concluding that the contract included both a choice-of-law provision and a forum-selection clause: "This Agreement shall be governed by and construed in accordance with the laws of the State of Arkansas. Any action shall be adjudicated in the Circuit Court of Baxter County, Arkansas.").

      During the hearing, the trial court did not allow the parties to present any evidence because it believed that doing so would convert the motions to dismiss into motions for summary judgment. Furthermore, the court indicated in its order that it did not consider the affidavits of the parties and only considered "the pleadings of the parties, the argument of counsel at the hearing, and the applicable law" in reaching its decision. Appellant's App. Vol. II p. 6. On appeal, Shehadeh and Oswald disagree as to whether the trial court should have considered the affidavits they filed in support of and in opposition to the motions to dismiss. A motion to dismiss for lack of personal jurisdiction is not treated as a motion for summary judgment because materials outside of the pleadings are filed. Mid-States Aircraft Engines, Inc. v. Mize Co., Inc. , 467 N.E.2d 1242, 1247 (Ind. Ct. App. 1984). This conversion-to-summary-judgment rule only applies to a motion to dismiss for failure to state a claim under Indiana Trial Rule 12(B)(6). See Ind. Trial Rule 12(B). In fact, when a defendant challenges personal jurisdiction, the plaintiff is not only permitted but required to present evidence to support her claim that personal jurisdiction over the defendant exists. Keesling v. Winstead , 858 N.E.2d 996, 1000 (Ind. Ct. App. 2006). Therefore, we have considered the parties' affidavits in our de novo review.

      Because we conclude that there is specific personal jurisdiction in this case, we do not address the parties' arguments regarding general personal jurisdiction.


author: Kirsch, Judge.

text:
    Lisa M. EL, Appellant-Defendant, v. NATIONSTAR MORTGAGE LLC, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-MF-338
    Court of Appeals of Indiana.
    FILED August 8, 2018
    Attorney for Appellant: Preeti (Nita) Gupta, Indianapolis, Indiana
    Attorney for Appellee: Kevin B. Connor, Dykema Gossett PLLC, Chicago, Illinois
   Kirsch, Judge.

[1] In this residential mortgage foreclosure action, Nationstar Mortgage LLC ("Nationstar") sought to foreclose a mortgage that it held on real property mortgaged by property owner Lisa M. El ("El"). After El failed to appear for a settlement conference that she had requested, Nationstar sought and obtained summary judgment against El, and the trial court entered an in rem foreclosure judgment in favor of Nationstar. El thereafter filed a motion requesting another settlement conference, which the trial court denied. El now appeals and raises the following restated issue: whether the trial court abused its discretion when it denied El's motion asking for a second settlement conference.

[2] We affirm.

Facts and Procedural History

[3] On June 8, 2017, Nationstar filed an In Rem Complaint on Promissory Note and to Foreclose Mortgage, seeking to foreclose a mortgage secured by real property in Camby, Indiana and naming El as a defendant. Appellee's App. Vol. II at 4. El was served with the complaint and summons, and the summons, among other things, stated:

You may be entitled to a settlement conference that will allow you to speak with your mortgage company and discuss alternatives to foreclosure. If you want a settlement conference, you must request it with the court within 30 days after you received this summons and Complaint.

Id. at 2. El also received with the complaint and summons a document notifying her that she "may be entitled to a court-ordered settlement conference with her lender to negotiate an agreement that could allow her to avoid foreclosure."Id. at 53. It instructed her that she needed to notify the trial court of her desire for a settlement conference, and it provided El with options as to how to do so. The document also told her:

You have the right to be represented by an attorney or assisted by a mortgage foreclosure counselor, either in person or by telephone, at the settlement conference. If you need a mortgage foreclosure counselor or an attorney contact the Indiana Foreclosure Prevention Network at 1-877-Get-Hope (1-877-438-4673), or www.877GetHope.org at least two (2) weeks prior to your settlement conference. The IFPN is a free, confidential service meant to assist homeowners like you.

Id.

[4] On July 14, 2017, El appeared, pro se, and filed a handwritten answer and a handwritten request for settlement conference.

Id. at 56-58. On July 21, the trial court granted her request, issuing a Notice and Order for Settlement Conference, which stated that the matter was set for a settlement conference on for September 14, 2017. Id. at 60-63. The trial court's notice for the settlement conference ("Notice") ordered El and Nationstar to appear in person and, if represented, with counsel. It directed Nationstar to bring specified payment records for the mortgage, and with regard to documentation, it directed El as follows:

(2) The Defendant must bring to the Settlement Conference and provide a copy to the Plaintiffs attorney no later than 30 days in advance of the Settlement Conference, the following documents needed to engage in good faith negotiations with the creditor:
a. Documentation of Defendant's present and projected future income, expenses, assets and liabilities, including pay stubs, bank statements, utility bills, tax returns.
b. The Defendant is encouraged to contact a mortgage foreclosure counselor, immediately. A mortgage foreclosure counselor and/or an attorney may be able to assist with this process and the presentation of the proper documentation at the Settlement Conference. (A list of counselors is attached.)

Id. at 60-61.

[5] Nationstar appeared by counsel at the September 14 settlement conference, and El did not appear. The trial court entered a minute sheet noting that El failed to appear, that El did not submit to Nationstar the documents required by the Notice and Order for Settlement Conference, and that Nationstar could proceed with its foreclosure. Appellant's App. Vol. II at 10. On November 6, 2017, Nationstar filed a Motion for In Rem Summary and Default Judgment, and El did not file a response. Appellee's App. Vol. II at 64-84. On December 12, 2017, the trial court granted Nationstar's motion and issued an Entry of In Rem Summary and Default Judgment and Decree of Foreclosure. Id. at 85-91.

[6] On February 5, 2018, counsel for El filed an appearance and a Motion for Settlement Conference. Appellant's App. Vol. II at 11. El's Motion acknowledged that a prior settlement conference had been held, but she asked the trial court to "re-schedule the statutory settlement conference" because she had applied for housing assistance as she had been told to do, but she "was not aware of what additional documents were required by [Nationstar]" and "was misinformed as to the Settlement Conference proceedings." Id. ; Appellee's App. Vol. II at 92-93. On February 7, 2018, the trial court issued an order summarily denying El's request for a rescheduled settlement conference and stating, "Case has already been resolved." Appellant's App. Vol. II at 9. El now appeals.

Discussion and Decision

[7] "In response to the mortgage foreclosure crisis, the Indiana legislature passed Indiana Code chapter 32-30-10.5 to 'avoid unnecessary foreclosures' and facilitate 'the modification of residential mortgages in appropriate circumstances.' " Nationstar Mortg., LLC v. Curatolo, 990 N.E.2d 491, 493 (Ind. Ct. App. 2013) (citing Ind. Code § 32-30-10.5-1(b) ). Under this chapter, a creditor must notify a debtor of his or her right to participate in a settlement conference, and the debtor is given thirty days to notify the court of his or her intent to participate in such a conference. Id. at 494 (citing Ind. Code § 32-30-10.5-8(c) ). Here, El does not dispute that, at her request, the trial court scheduled and held a settlement conference, which she did not attend. Her claim is that "[t]the trial court should not have denied a second request for a settlement conference under Indiana Code section 32-30-10.5-10 [.]" Appellant's Br. at 5.

[8] Indiana Code 32-30-10.5-10 ("Section 10"), addressing foreclosure settlement conferences, requires a trial court to issue a notice of a settlement conference if the debtor contacts the court to schedule a settlement conference. Ind. Code § 32-30-10.5-10(a). The conference must be held in a specified timeframe, and the trial court's notice to the debtor must "[e]ncourage the debtor to contact a mortgage foreclosure counselor before the date of the settlement conference." Ind. Code § 32-30-10.5-10(a)(2). Section 10 outlines a number of things that must be included in the trial court's notice of the settlement conference; for instance, it must inform the parties where the settlement conference will be held, and it requires that an attorney for the creditor attend the settlement conference. Ind. Code § 32-30-10.5-10(b). The notice must advise the debtor to provide, within a certain time frame, the debtor's loss mitigation package to the creditor's attorney and to the trial court. Ind. Code § 32-30-10.5-10(a)(3)(A). The notice must also advise the debtor to bring specified documents to the settlement conference:

(B) Bring the following to the settlement conference:
(i) In the case of a foreclosure action filed after June 30, 2009, but before July 1, 2011, documents needed to engage in good faith negotiations with the creditor, including documentation of the debtor's present and projected future income, expenses, assets, and liabilities (including documentation of the debtor's employment history), and any other documentation or information that the court determines is needed for the debtor to engage in good faith negotiations with the creditor. The court shall identify any documents required under this item with enough specificity to allow the debtor to obtain the documents before the scheduled settlement conference.
(ii) In the case of a foreclosure action filed after June 30, 2011, the debtor's loss mitigation package.
Any document submitted to the court under this subdivision as part of the debtor's loss mitigation package is confidential under IC 5-14-3-4(a)(13).

Ind. Code § 32-30-10.5-10(a)(3)(B). As it does for the debtor, the notice must advise the creditor to do certain things and bring certain documents to the settlement conference. Ind. Code § 32-30-10.5-10(a)(4).

[9] El's claim on appeal is that the trial court "should not have denied a second request for a settlement conference" because "[Section 10] does not preclude debtors from obtaining a second settlement conference." Appellant's Br. at 5. Her position - that the statute "does not preclude" a second conference - is only partially correct. The statute contemplates the possibility of an additional conference as follows:

[F]or cause shown, the court may order the creditor and the debtor to reconvene a settlement conference at any time before judgment is entered .

Ind. Code § 32-30-10.5-10(b) (emphasis added). The statute's plain language provides that, in certain circumstances, the trial court "may order" the parties to reconvene a settlement conference, and, accordingly, we review El's claim for an abuse of discretion. An abuse of discretion occurs where the trial court's decision is against the logic and effect of the facts and circumstances before it.

Elliott v. Dyck O'Neal, Inc. , 46 N.E.3d 448, 457 (Ind. Ct. App. 2015), trans. denied

[10] Here, El filed her Motion for Settlement Conference on February 5, 2018, which was approximately two months after the trial court entered its December 12, 2017 judgment in favor of Nationstar. Section 10 grants the trial court discretion to "reconvene" the settlement conference, for cause, "at any time before judgment is entered." Ind. Code § 32-30-10.5-10(b). El's motion was filed subsequent to judgment being entered. Accordingly, under the facts of this case, the trial court did not have discretion to reconvene the settlement conference. Indeed, as the trial court stated, the "[c]ase ha[d] already been resolved." Appellant's App. Vol. II at 9.

[11] Additionally, even if the timing had been such that trial court still possessed the discretion to order the parties to reconvene, we find that El has not shown "cause" that would entitle her to a reconvened conference. Her motion did not claim that she was not served or did not know about the September 14 settlement conference or otherwise seek to set aside the foreclosure judgment for some reason. Rather, she acknowledged that a prior conference had been held and asked the trial court to "re-schedule the statutory settlement conference" because she had applied for housing assistance as she had been told to do, but she "was not aware of what additional documents were required by [Nationstar]" and "was misinformed as to the Settlement Conference proceedings." Appellee's App. Vol. II at 92-93.

[12] However, pursuant to Section 10's requirements, the trial court's Notice advised El of the date and location of the settlement conference and, with regard to her claim that she did not know what documents Nationstar needed from her, the Notice identified documents that she was required to bring to the conference, including documentation of her present and projected future income, expenses, assets and liabilities, pay stubs, bank statements, utility bills, and tax returns. Appellee's App. Vol. II at 60-61. It also encouraged El to contact a mortgage foreclosure counselor or attorney immediately, noting that those individuals might be able to assist with the presentation of the proper documentation at the settlement conference. Id. The Notice included a list with possible counseling agencies and pro bono legal services. Id. at 63. Based on Section 10, as well as the facts of the case, we find no abuse of discretion in the trial court's decision to deny El's February 5, 2018 Motion for Settlement Conference.

[13] Affirmed.

Baker, J., and Bradford, J., concur.

      A "loss mitigation package" is a set of documents that "provide information about a debtor's present and projected future income, expenses, assets, and liabilities." Ind. Code § 32-30-10.5-4.7(2).