author: MAY, Judge.

text:
    AUTO-OWNERS INSURANCE COMPANY, Appellant-Defendant, v. C & J REAL ESTATE, INC., Appellee-Plaintiff.
    No. 49A04-1209-PL-477.
    Court of Appeals of Indiana.
    Aug. 15, 2013.
    Ordered Published Oct. 31, 2013.

      Thomas R. Haley III, Janis E. Steck, Jennings Wheeler & Haley, P.C., Carmel, IN, Attorneys for Appellant.
    David J. Cutshaw, Kelley J. Johnson, Cohen & Malad, LLP, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Auto-Owners Insurance Company (Auto-Owners) brings this interlocutory appeal of the order granting C & J Real Estate’s (C <& J) motion to compel Auto-Owners to produce certain documents regarding third party claims and reserve funds. We affirm and remand.

FACTS AND PROCEDURAL HISTORY

On April 5, 2010, a hailstorm traveled through Edinburgh, Indiana, where C & J owned a commercial building from which another company sold recreational vehicles. On April 6, C & J filed a claim with Auto-Owners alleging hail damage to the roof of that building. Auto-Owners investigated and then denied C & J’s claim, finding the roof was not damaged.

On November 29, 2010, C & J sued Auto-Owners, alleging breach of contract, bad faith, and breach of Auto-Owner’s duty of good faith and fair dealing. As part of discovery, C & J requested Auto-Owners answer a series of interrogatories and provide certain documents. Auto-Owners objected to Interrogatory 13, which requested third party claim information, and to Request 8, which sought to obtain insurance reserve information, and it refused to provide the information for a variety of reasons.

On November 7, 2011, C & J filed a motion to compel Auto-Owners to provide the information requested in Interrogatory 13 and Request 8. The trial court held a hearing and, on July 16, 2012, ordered Auto-Owners to provide the information. Auto-Owners asked the trial court to certify the discovery issue for interlocutory appeal, and the trial court granted the motion. We accepted jurisdiction.

DISCUSSION AND DECISION

A trial court has broad discretion in discovery matters. Consequently, our review is limited to determining whether the trial court abused its discretion. Nat’l Eng’g & Contracting Co. v. C & P Eng’g & Mfg. Co., 676 N.E.2d 372, 375 (Ind.Ct.App.1997). An abuse of discretion occurs when the trial court reaches a conclusion that is against the logic and natural inferences to be drawn from the facts of the case. Corll v. Edward D. Jones & Co., 646 N.E.2d 721, 723 (Ind.Ct.App.1995).

Indiana Trial Rule 26(B)(1), which governs discovery, states in pertinent part:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject-matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party.... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

“Due to the fact-sensitive nature of discovery issues, a trial court’s ruling is cloaked with a strong presumption of correctness.” Hlinko v. Marlow, 864 N.E.2d 351, 353 (Ind.Ct.App.2007), trans. denied.

1. Past Hail Claims

In Interrogatory 13, C & J asked Auto-Owners to:

Identify and describe in detail each and every hail damage claim that you received from an insured residing in Indiana with a commercial property insurance policy from the period of 2009 to present date, including the name of the insured, the dates of each claim, the nature of each claim, and whether the claim was settled or denied.

(App. at 216.) Auto-Owners objected, arguing:

[T]he information requested is irrelevant, immaterial, inadmissible, and not reasonably calculated to lead to the discovery of admissible evidence. Auto-Owners further objects on the grounds that such information is confidential, and contains trade secrets or other proprietary information. Auto-Owners objects to the extent it seeks information relating to this claim that is privileged under the work-product doctrine of the insurance company, or mental impressions of those individuals regarding this claim; to the extent the information sought is privileged and/or protected because it was developed or derived out of the anticipation of litigation, or after the filing of litigation; and to the extent the information sought contains any information regarding liability assessments among those persons, or information regarding insurance company reserve amounts. Auto-Owners also objects to this Interrogatory as being unduly burdensome and oppressive, and designed to harass or otherwise cause undue, unnecessary, immaterial, and irrelevant expenditure of time and resources by Auto-Owners, especially when based on speculation or conjecture that any other commercial property claim is reasonably related to this matter for purposes of discovery. Auto-Owners further objects on the grounds that this information is not readily available, and is not maintained in any manner or source from which the information could be derived by information or other documents kept by Auto-Owners in its usual or ordinary course of business.

(Id. at 244-45.)

C & J brought three claims against Auto-Owners-breach of contract, breach of good faith and fair dealing, and bad faith. The essential elements of a breach of contract claim are “the existence of a contract, the defendant’s breach thereof, and damages.” Fowler v. Campbell, 612 N.E.2d 596, 600 (Ind.Ct.App.1993). The obligation of good faith and fair dealing includes the agreement to refrain from: “(1) making an unfounded refusal to pay policy proceeds; (2) causing an unfounded delay in making payment; (3) deceiving the insured; and (4) exercising any unfair advantage to pressure an insured into a settlement of his claim.” Erie Ins. Co. v. Hickman by Smith, 622 N.E.2d 515, 519 (Ind.Ct.App.1993). Similarly, proving bad faith amounts to showing more than bad judgment or negligence: “it implies the conscious doing of wrong because of dishonest purpose or moral obliquity.... [I]t contemplates a state of mind affirmatively operating with furtive design or ill will.” Oxendine v. Public Service Co., 423 N.E.2d 612, 620 (Ind.Ct.App.1980).

We addressed discovery of third party insurance claims in a breach of contract claim in Ramirez v. Am. Family Mut. Ins. Co., 652 N.E.2d 511, 516-17 (Ind.Ct.App.1995). The Ramirezes first brought a breach of contract claim against American Family for an unpaid claim involving water damage from the malfunction of a sump pump. The claim was amended to include bad faith and breach of duty of good faith and fair dealing. After cross motions for summary judgment the trial court granted American Family summary judgment on the breach of contract issue. The Ra-mirezes appealed, arguing the trial court erred when it denied their motion to compel American Family to provide information regarding other claims arising out of the same ice storm. After noting the discovery decision was relevant only to the breach of contract claim, as the trial court in effect had bifurcated the issues, we affirmed: “The Ramirezes and American Family were the only parties to the insurance contract at issue here. Information regarding other claims made by other insureds under other contracts is not relevant to the coverage afforded under the Ramirezes’ insurance policy.” Id. at 517.

Counsel have not furnished us, nor has our search revealed, case law addressing the discovery of third party insurance claims in a case involving breach of duty of good faith and bad faith claims. However, in Allstate Ins. Co. v. Scroghan, 851 N.E.2d 317, 323 (Ind.Ct.App.2006), reh’g denied, we found a request for “All documents relating to bad faith claims or lawsuits filed against defendant, Allstate Insurance Company, arising out of uninsured claims initiated by Allstate’s own insureds,” (id.), was relevant to a bad faith claim and thus discoverable. Allstate, like the case before us, involved a breach of contract claim and a bad faith claim. The trial court bifurcated the matters, holding trial first on the breach of contract claim, and then proceeding to the bad faith claim.

Our discovery rules “are designed to allow a liberal discovery process, the purposes of which are to provide parties with information essential to litigation of the issues, to eliminate surprise, and to promote settlement.” Fitzpatrick v. Kenneth J. Allen and Assoc., P.C., 913 N.E.2d 255, 263 (Ind.Ct.App.2009). As stated in Rule 26, although the information sought must be reasonably calculated to lead to the discovery of admissible evidence, the information itself does not have to be admissible. In the instant case, we are faced with precedent indicating the admission of certain evidence could be prejudicial to one claim C & J asserts, that of breach of contract, but possibly relevant to C & J’s breach of good faith and fair dealing and bad faith claims. The actual admissibility of the information for a specific purpose will have to be addressed at trial, but at this stage of the litigation, the third party claims information sought by C & J through Interrogatory 13 is relevant to a subject matter of the litigation and is therefore discoverable. We affirm the trial court’s decision compelling Auto Owners to produce the information requested in Interrogatory 13.

2. Reserve Amount

Ind.Code § 27 — 1—13—8(c) requires an insurance company to set a reserve amount for each claim made by an insured, regardless of whether the claim is paid. In Request 8, C & J asked Auto-Owners to produce “reserve information regarding or relating to C & J Real Estate’s file and/or Insurance Policy, including but not limited to any aggregate reserve information.” (App. at 226.) Auto-Owners objected, arguing any documentation regarding that issue was prepared in anticipation of litigation and thus undiscoverable, and production of any documents regarding insurance reserve information could not be ordered. We disagree.

Auto-Owners cites Schierenberg v. Howell-Baldwin, 571 N.E.2d 335 (Ind.Ct.App.1991), overruled on other grounds by Richey v. Chappell, 594 N.E.2d 443 (Ind.1992). In Schierenberg, we held information regarding insurance reserves, which had been redacted from documents produced during discovery, was not discoverable because it was “not reasonably calculated to lead to the discovery of admissible evidence.” Id. at 338. Schierenberg is distinguishable for two reasons. First, we specifically held, “evidence or remarks about liability insurance in a negligence case is inadmissible.” Id. at 337 (citing Clouse v. Fielder, 431 N.E.2d 148, 153 (Ind.Ct.App.1982), reh’g denied) (emphasis added). The instant case is one involving bad faith, not negligence, and the elements of these torts are different. Compare Allstate Ins. Co. v. Fields, 885 N.E.2d 728, 732 (Ind.Ct.App.2008) (tortious breach of insurer’s duty to deal in good faith is bad faith; elements of bad faith include “(1) making an unfounded refusal to pay policy proceeds; (2) causing ah unfounded delay in making payment; (3) deceiving the insured; and (4) exercising any unfair advantage to pressure an insured into a settlement of his claim”), reh’g denied, trans. denied, with Williams v. Cingular Wireless, 809 N.E.2d 473, 476 (Ind.Ct.App.2004) (to prevail on a claim of negligence, the plaintiff must show: “(1) duty owed to plaintiff by defendant; (2) breach of duty by allowing conduct to fall below the applicable standard of care; and (3) compensa-ble injury proximately caused by defendant’s breach of duty.”), trans. denied. Additionally, Schierenberg involves a request by a third party for information regarding the insurance policy of the opposing party. In the instant case, the insured is requesting information about its own policy.

Auto-Owners also argues reserve information is not discoverable based on T.R. 26(B)(3), which states in relevant part:

Subject to the provisions of subdivision (B)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (B)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indem-nitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

Auto-Owners cites Richey v. Chappell, 594 N.E.2d 443 (Ind.1992), which involved litigation between the insured and a third party in which the third party was requesting discovery of statements by the insured to the insurer. The case before us involves a discovery request for statements by an unrelated third party to the insurer, but the litigation is between the insurer and an insured. Richey does not control. We cannot say the trial court abused its discretion when it ordered Auto-Owners to provide documentation regarding the amount put in reserve for the payment of C & J’s claim as part of discovery Request 8.

CONCLUSION

We affirm the order to compel Auto-Owners to provide the information requested in Interrogatory 13 and the order to compel Auto-Owners to provide the information in discovery Request 8. We remand for proceedings consistent with this opinion.

Affirmed and remanded.

ROBB, C.J., concurs in result.

PYLE, J., concurs.

      . An insurance reserve, also known as a "loss reserve” is ”[t]he reserve for outstanding losses at least equal to the aggregate estimated amounts due or to become due on account of all losses or claims of which the company has received notice.” Ind.Code § 27 — 1—13—8(c).

      . It is possible a jury could be confused that evidence of third party claims is relevant to C & J’s good faith and fair dealing and bad faith claims but not to C & J’s breach of contract claim, which contains issues solely between the insurance company and the single policyholder. We presume the trial court will address the issue of possible confusion and resulting prejudice by bifurcating the issues as in Ramirez and Allstate, or by giving an appropriate limiting instruction.


source: Caselaw Access Project

author: PYLE, Judge.

license: Public Domain

text:
    LIFELINE YOUTH & FAMILY SERVICES, INC., Appellant-Plaintiff, v. INSTALLED BUILDING PRODUCTS, INC., d/b/a Momper Insulation, Appellee-Defendant.
    No. 02A03-1211-CT-502.
    Court of Appeals of Indiana.
    Sept. 18, 2013.

      James B. Glennon, George D. Pilja, For-an Glennon Palandech Ponzi & Rudloff, PC, Chicago, IL, Attorneys for Appellant.
    Robert R. Foos, Jr., Lewis Wagner, LLP, Indianapolis, IN, Attorney for Ap-pellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

Lifeline Youth & Family Services (“Lifeline”) appeals the trial court’s denial of its motion to correct error following a jury verdict and award of damages entered in favor of Lifeline and against Installed Building Products, Inc. d/b/a Momper Insulation (“Momper”).

We affirm.

ISSUE
Whether the trial court erred by denying Lifeline’s motion to correct error that requested the trial court to increase the amount of the jury’s award of damages that was entered in favor of Lifeline.

FACTS

In January 2008, Momper installed insulation in the attic of a building owned by Lifeline. A fire occurred in the attic, causing damage to Lifeline’s building.

On June 19, 2009, Lifeline filed a three-count complaint for damages against Mom-per, raising claims of: (1) negligence; (2) breach of implied warranty; and (3) breach of contract. In regard to the negligence claim, Lifeline alleged that Momper had acted negligently when it dropped a portable light fixture onto the attic floor; installed insulation over the light fixture; and failed to inspect the attic after installation of the insulation. For the breach of implied warranty claim, Lifeline alleged that Momper had installed the insulation in an unsafe manner and that it was not fit for its intended purpose. Finally, Lifeline alleged that Momper had breached its contract with Lifeline by failing to perform the work as set forth in Momper’s invoice. More specifically, Lifeline alleged that Momper had “improperly installed the R-19 (4 inches) blown wood fiber in the ceiling of the building.” (App. 58).

A jury trial was held August 21 through August 23, 2012. Lifeline proceeded on the three claims in its complaint, and the trial court instructed the jury as to the elements necessary before damages could be awarded for those claims. The parties stipulated to the amount of damages sustained, which was set forth in one of the final jury instructions:

The parties in this case have agreed that certain facts are true. You must accept these facts as true:
Although [Momper] denies that it is liable to [Lifeline] for any damages sustained by [Lifeline] as a result of the fire that is the subject of this litigation, the parties hereby stipulate and agree to the following:
1. The cost to repair is the proper measure of the damages sustained to [Lifeline’s] building as a result of the subject fire;
2. The cost to repair the damages sustained to [Lifeline’s] building as a result of the fire included $280,263.00, exclusive of any interest;
3. The repairs to [Lifeline’s] building were preformed [sic] as described in the invoices produced by [Lifeline] to [Momper];
4. The repairs performed on [Lifeline’s] building were reasonable and necessary to return the building to its pre-fire condition; and
5. Lifeline paid $280,263.00 to contractors and vendors to perform these repairs.

(App. 37).

The trial court instructed the jury regarding the apportionment of fault for comparative fault and instructed the jury that consideration of Lifeline’s fault was an issue as to Lifeline’s negligence claim. The trial court also instructed the jury— in two separate instructions — that it “must not consider comparative fault when considering whether to award damages for [Lifeline] for its breach of contract claim.” (App. 47). Instead, the trial court provided specific instructions regarding damages for the breach of contract claim. The trial court instructed the jury that “[t]o recover damages ... for breach of contract,” Lifeline was required to prove that: (1) the parties entered into a contract; (2) Momper had breached its contract with Lifeline; (3) Momper’s breach damaged Lifeline; (4) the parties “reasonably anticipated that those damages could/might occur when they entered into the contract;” and (5) Momper’s breach was a “responsible cause of those damages.” (App. 44). The trial court also informed the jury that “[i]n a claim for breach of contract, a party may recover only those damages that are the natural and proximate consequence of the breach, and those reasonably anticipated by the parties when they entered into the contract.” (App. 50). Additionally, the trial court provided the jury with a verdict form that provided a space for the jury to assess fault to each party. The verdict form also contained a space for the jury to indicate, by placing a check mark, whether or not Momper had breached its contract with Lifeline.

The jury returned a verdict in favor of Lifeline and against Momper and awarded damages in the amount of $154,144.65. Specifically, the jury determined that Lifeline was forty-five percent at fault and that Momper was fifty-five percent at fault. The jury also determined, as indicated by its check mark on the verdict form, that Momper breached its contract with Lifeline. The two-page jury verdict form, which is at issue in this appeal, appears as follows:

811

(App. 22-23). The trial court entered judgment on the jury’s verdict.

Lifeline then filed a motion to correct error, claiming that the jury had erred in its calculation of damages. Lifeline did not include a copy of its motion to correct error in its Appellant’s Appendix but asserts in its appellate brief that it filed its motion under Trial Rule 52(A)(2), which is a claim that a jury verdict is “inadequate.” During the hearing on Lifeline’s motion, Lifeline argued that the jury erroneously applied comparative fault to its calculation of damages on its breach of contract claim. Lifeline argued that it did not want to disturb the jury’s general verdict in its favor but stated that it sought to have the trial court “correct an error that the jury made in which damages [it was] awarding for the breach of contract claim.” (Tr. 6). Lifeline requested the trial court to award Lifeline damages in the amount of $280,268.00, which it argued would be consistent with the jury’s finding that Mom-per had breached the contract. Momper argued that the jury’s finding that Mom-per breached the contract did not equate to a determination that the jury intended to award damages on the breach of contract claim. Momper argued that the jury’s damages verdict was consistent with the jury’s verdict regarding negligence and its determination of comparative fault, which Lifeline did not challenge. The trial court denied Lifeline’s motion to correct error. Lifeline now appeals.

DECISION

Lifeline challenges the amount of the damages the jury awarded to Lifeline and argues that the trial court abused its discretion by denying its motion to correct error. Specifically, Lifeline contends that the jury’s verdict awarding Lifeline damages totaling $154,144.65 was improper because it claims that the jury erroneously applied comparative fault to Lifeline’s breach of contract claim. To support its argument, Lifeline points to check-marked space — which was inserted on the jury comparative fault verdict form — indicating that the jury had determined that Momper had breached its contract with Lifeline. Lifeline reasons that because the jury determined that Momper had breached the contract, then the jury must have also determined that Lifeline was entitled to recover damages from that breach of contract. Thus, Lifeline argues that the jury’s damages verdict should be increased and that it is entitled to the stipulated damages amount of $280,268.00 for the jury’s determination that Momper had breached its contract with Lifeline.

On appeal, we review a trial court’s ruling on a motion to correct error for an abuse of discretion. Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048, 1055 (Ind.2003). We will reverse a trial court’s ruling on a motion to correct error “only where the trial court’s judgment is clearly against the logic and effect of the facts and circumstances before it or where the trial court errs on a matter of law.” Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind.2013).

“A jury determination of damages is entitled to great deference when challenged on appeal.” Sears Roebuck and Co. v. Manuilov, 742 N.E.2d 453, 462 (Ind.2001). As our Indiana Supreme Court has explained:

Damages are particularly a jury determination. Appellate courts will not substitute their idea of a proper damage award for that of the jury. Instead, the court will look only to the evidence and inferences therefrom which support the jury’s verdict. We will not deem a verdict to be the result of improper considerations unless it cannot be explained on any other reasonable ground. Thus, if there is any evidence in the record which supports the amount of the award, even if it is variable or conflicting, the award will not be disturbed.

Id. (quoting Prange v. Martin, 629 N.E.2d 915, 922 (Ind.Ct.App.1994), reh’g denied, trans. denied (citations omitted)). Additionally, our Supreme Court observed:

Our inability to actually look into the minds of the jurors is, to a large extent, the reason behind the rule that we will not reverse if the award falls within the bounds of the evidence. We cannot invade the province of the jury to decide the facts and cannot reverse unless the verdict is clearly erroneous.

Id. (quoting Annee v. State, 256 Ind. 686, 690, 271 N.E.2d 711, 713 (1971), reh’g denied ). Furthermore, “[t]he Law indulges every reasonable presumption in favor of the legality of jury verdicts, and corrective action should only be taken when the verdict or verdicts are ‘inconsistent because [of] a logical or legal impossibility.’ ” Tincher v. Davidson, 762 N.E.2d 1221, 1226 (Ind.2002) (quoting Indianapolis Newspapers, Inc. v. Fields, 254 Ind. 219, 259 N.E.2d 651, 668 (1970), cert. denied).

Here, the jury’s verdict form shows that the jury found that Momper was negligent and was at fault for fifty-five percent of the resulting damages while Lifeline was at fault for forty-five percent. Thus, the jury awarded Lifeline damages in the amount of $154,144.65. The verdict form also reveals that the jury — as indicated by its check mark — found that Momper had breached its contract with Lifeline. Lifeline contends that this check-mark on the comparative fault jury verdict form also indicates that the jury intended to award damages for the breach of contract and further contends that the jury then erroneously applied comparative fault to the amount of damages recoverable for the breach of contract. Lifeline’s argument on appeal focuses on the assertion that comparative fault is not applicable to a breach of contract claim.

Lifeline’s reasoning as to the jury’s intentions and Lifeline’s argument seeking reversal of the jury’s award of damages miss the mark. No one disputes the assertion that comparative fault does not apply to a breach of contract claim. See Parke State Bank v. Akers, 659 N.E.2d 1031, 1035 (Ind.1995) (explaining that “Indiana does not recognize comparative causation in breach of contract claims”) (citing Fowler v. Campbell, 612 N.E.2d 596, 602 (Ind.Ct.App.1993)), reh’g denied. Indeed, the trial court specifically instructed the jury that it was not to consider comparative fault when deciding whether to award damages for Lifeline’s breach of contract claim.

Instead, Momper argues that Lifeline has waived any challenge to the jury’s award of damages because Lifeline “did not object to the [damages] verdict before the jury was dismissed.” (Momper’s Br. 8) (citing DDR Computer Serv. Bureau v. Davis, 411 N.E.2d 722 Ind.Ct.App.1980)). Lifeline responds to Momper’s argument by chastising Momper for stating that Lifeline did not object to the jury’s damages verdict without citing to the Transcript or Appendix. Nevertheless, Lifeline then does the same thing and asserts— without citation to the record — that it objected to the damages verdict “[u]pon completion of the trial” and made an “oral motion” asking the trial court to increase the damages award to $280,263.00. (Lifeline’s Reply Br. 6). Lifeline then contends that the trial court erred by denying its motion to correct error because it alleges that “the evidence presented at trial supports the jury’s finding that Momper breached the parties’ contract and that the total damages attributable to that breach were $280,263.00 as reflected on the Verdict Form.” (Lifeline’s Reply Br. 11-12).

As noted above, we do not have a transcript of the jury trial because Lifeline did not request transcription of the trial. Therefore, we have no specific information regarding the evidence presented to support the jury’s damages verdict, any discussions or objections surrounding the trial court’s jury instructions on damages, or the procedural events surrounding the jury’s verdict awarding damages.

Lifeline’s failure to submit a transcript of the jury trial is in contravention of Indiana Appellate Rule 9(F)(5), which provides that an appellant’s Notice of Appeal shall designate “all portions of the Transcript necessary to present fairly and decide the issues on appeal.” Appellate Rule 9(F)(5) further provides that, “[i]f the appellant intends to urge on appeal that a finding of fact or conclusion thereon is unsupported by the evidence or is contrary to the evidence, the Notice of Appeal shall request a Transcript of all the evidence.”

Our Indiana Supreme Court has addressed an appellant’s failure to include a transcript on appeal when factual issues are presented and held that “ ‘[although not fatal to the appeal, failure to include a transcript works a waiver of any specifications of error which depend upon the evidence.’ ” In re Walker, 665 N.E.2d 586, 588 (Ind.1996) (quoting Campbell v. Criterion Group, 605 N.E.2d 150, 160 (Ind.1992)). Because Lifeline relies on the evidence presented during the jury trial in support of its argument challenging the amount of the jury’s damages verdict, we must conclude that Lifeline has waived any such damages argument and has failed to prove that the trial court abused its discretion by denying its motion to correct error. See, e.g., Ostrowski v. Everest Healthcare Indiana, Inc., 956 N.E.2d 1144, 1147-48 (Ind.Ct.App.2011) (holding that appellant waived argument by failing to comply with the appellate rule requiring him to designate relevant portions of the transcript necessary to decide issue on appeal); Fields v. Conforti, 868 N.E.2d 507, 511 (Ind.Ct.App.2007) (explaining that appellant’s arguments that depended upon the evidence at trial were waived by appellant’s failure to request a transcript of the bench trial). See also Kocher v. Getz, 824 N.E.2d 671, 675 (Ind.2005) (holding that, where appellant challenged the amount of appeal bond but failed to provide a transcript of the relevant hearing, appellant failed to demonstrate that the trial court abused its discretion in amount ordered).

Affirmed.

KIRSCH, J., and BARNES, J., concur.

      . The underlying facts of this case are somewhat limited because Lifeline did not request a copy of the transcript from the jury trial. Instead, we have had to glean the facts from the limited information included in Lifeline's Appendix, including the trial court’s final jury instructions and the verdict form returned by the jury.

      . Momper’s invoice, which was attached to Lifeline's complaint, provided that Momper had performed the following work:
      INSTALL R-19 (4 INCHES) BLOWN WOOD FIBER IN THE CEILING OF THE BUILDING[.] WRAP ALL RECESS CAN LIGHTS, FIREPLACE, AND WATER HEATER FLUES WITH UNFACED FIBERGLASS BATTS. INSTALL CARDBOARD AROUND SIDES OF LID AND R-38 FIBERGLASS OVER SCUTTLE COVER AS NEEDED. STAPLE FACT CARD NEAR ATTIC OPENING.
      (App. 59).

      . The other jury instruction provided: "You must not consider comparative fault in deciding whether [Momper] breached its contract with [Lifeline].” (App. 45).

      . Lifeline indicates that it requested the trial court to insert this breach of contract language into the comparative fault verdict form so that the jury could have a place for the jury to "memorialize” its decision on Lifeline's breach of contract claim. (Lifeline’s Br. 4). Because Lifeline did not request the jury trial transcript, we cannot verify the origination of the language in the verdict form or whether there was any objection to the same.

      . Lifeline, however, does not challenge the jury’s comparative fault allocation of forty-five percent to Lifeline or the amount of damages as it relates to its negligence claim. Additionally, Lifeline does not challenge any of the trial court's jury instructions regarding the elements necessary to be proven by Lifeline to recover damages under its various claims.

      . In support of its argument on appeal, Lifeline cites to two federal trial court orders that are available on Westlaw but are not reported in the F.Supp.2d.

      . Momper also raises an argument regarding the abolishment of special verdicts and interrogatories under Trial Rule 49 and specifically contends that the jury’s determination that Momper had breached the contract was a special interrogatory and that it could not be used to overturn the jury’s general verdict form on comparative fault. See Tincher, 762 N.E.2d at 1226 (citing State Highway Dep’t v. Snyder, 594 N.E.2d 783 (Ind.1992) and Buckland v. Reed, 629 N.E.2d 1241 (Ind.Ct.App.1994)) (holding that a jury’s verdict form on comparative fault was a general verdict and could not be "impeached by the calculation form”). Given our disposition of this appeal, we need not address this argument and will leave the matter for another day.


author: BAKER, Judge.

text:
    Walter E. LUNSFORD, Appellant-Defendant, v. DEUTSCHE BANK TRUST COMPANY AMERICAS AS TRUSTEE, Appellee-Plaintiff.
    No. 30A01-1302-MF-63.
    Court of Appeals of Indiana.
    Sept. 20, 2013.

      Walter E. Lunsford, Cumberland, IN, Appellant pro se.
    David J. Jurkiewicz, Nathan T. Daniel-son, Bose McKinney & Evans LLP, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

In this case, we find the old adage “first in time is first in right,” to be as instructive as it has been throughout 200 hundred years of property and debt collection jurisprudence. Appellant-defendant Walter E. Lunsford entered into a land contract with Elizabeth Cottier; however, it was not recorded until almost six years later. In the meantime, Cottier executed a promissory note secured by a mortgage to a financial institution, which promptly recorded its security interest before Lunsford’s interest was recorded.

Cottier defaulted on the loan, and the financial institution, appellee-plaintiff Deutsche Bank Trust Company Americas as Trustee (Deutsche Bank), which had been assigned the promissory note and the mortgage, initiated foreclosure proceedings against Cottier. Lunsford was joined as a defendant to assert any interest he might have by reason of his land contract.

Deutsche Bank filed a motion for summary judgment, which was granted following a hearing. The trial court entered a decree of foreclosure, thereby foreclosing Lunsford’s land contract and ordered a sheriffs sale.

Lunsford appeals pro se, raising numerous arguments, including that Deutsche Bank does not exist, that it refused Luns-ford’s attempts to tender payment, that it failed to join an indispensable party, namely, the trust, and that Deutsche Bank failed to produce the original loan documents. Finding no merit in Lunsford’s arguments and that Deutsche Bank was the holder of the promissory note and mortgage and had the authority to enforce these documents, we affirm the trial court’s order granting summary judgment in favor of Deutsche Bank.

FACTS

Lunsford and Cottier entered into a land contract on August 28, 2000, (Land Contract), for the purchase of property in Cumberland (Real Estate). The Land Contract was not recorded until March 8, 2006.

On August 18, 2005, Cottier as owner of the Real Estate, executed a promissory note to Homecomings Financial Network, Inc. (Homecomings), promising to pay $78,000. Homecomings endorsed the promissory note to Residential Funding Corporation, who then endorsed it to Deutsche Bank, as Trustee.

The promissory note was secured by a mortgage executed by Cottier that same day. More particularly, Cottier granted a security interest in the Real Estate to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Homecomings. The mortgage indicated that “MERS is a separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns.” Ap-pellee’s App. p. 101. The mortgage was recorded on August 25, 2005, as Instrument number 050011734. The mortgage was assigned to Deutsche Bank by MERS under an assignment of mortgage which was also recorded.

The promissory note and the mortgage were acquired by Deutsche Bank as trustee prior to the date that the complaint was filed and during the entire pendency of this matter. Agents of Deutsche Bank have been in physical possession of the original promissory note and mortgage. The original promissory note and mortgage were produced for inspection by the trial court and Lunsford during the November 15, 2012 hearing on Deutsche Bank’s motion for summary judgment.

Beginning on January 1, 2008, Cottier defaulted on making payments under the terms of the promissory note and mortgage. As a result, the loan was accelerated, and on July 2, 2009, Deutsche Bank, as trustee, initiated foreclosure proceedings, seeking to foreclose the mortgage against the Real Estate and an order for a sheriffs sale of the Real Estate. Additionally, Deutsche Bank requested a personal money judgment against Cottier. Lunsford was included as a defendant to assert any interest in the Real Estate by reason of the Land Contract.

On January 14, 2010, Lunsford asserted his Land Contract interest in the Real Estate in his answer, affirmative defenses, and counterclaim, claiming that Deutsche Bank lacked proper standing to enforce the promissory note.

On March 9, 2012, Deutsche Bank moved for summary judgment against Cottier and Lunsford. In support of its motion, Deutsche Bank filed a designation of evidence, multiple affidavits, and a brief.

In response to Deutsche Bank’s motion for summary judgment, on March 26, 2012, Lunsford filed an offer to settle/motion to dismiss. After obtaining numerous extensions of time, on October 10, 2012, Luns-ford filed a motion in opposition to Deutsche Bank’s motion for summary judgment. Deutsche Bank moved the trial court to strike Lunsford’s motion in opposition, claiming that it failed to comply with the Indiana Trial Rules. The trial court entered an order striking the motion in opposition on October 19, 2012. Luns-ford filed a second motion in opposition on November 5, 2012 and a motion to strike documents on November 15, 2012.

On November 15, 2012, the trial court conducted a hearing on Deutsche Bank’s motion for summary judgment. During the hearing, argument was presented by Lunsford, pro se, and by Deutsche Bank, via counsel. During the hearing, Deutsche Bank produced the original promissory note and mortgage for inspection by Luns-ford and the trial court. Deutsche Bank also asserted that Lunsford’s November 5 motion in opposition of summary judgment was untimely and could not be considered by the trial court.

At the conclusion of the hearing, the trial court requested that counsel for Deutsche Bank prepare a proposed summary judgment order which “recognizes [Lunsford’s] interest and his options.” Tr. p. 39. The trial court also asked that counsel for Deutsche Bank deliver an email to Lunsford containing updated payoff information for the loan.

Following the hearing, counsel for Deutsche Bank delivered to Lunsford, via overnight mail, a letter dated November 19, 2012, which provided payoff information for the loan as of November 16, 2012. Deutsche Bank filed a proposed summary judgment order on November 20, 2012. Although the trial court also requested that Lunsford send it a letter indicating what he proposed as an appropriate outcome in the case, with a copy delivered to counsel for Deutsche Bank, the record does not indicate that Lunsford ever sent such a letter to the trial court following the hearing.

On December 4, 2012, the trial court entered an order granting summary judgment and a decree of foreclosure. The order included a personal money judgment against Cottier and a decree foreclosing Deutsche Bank’s mortgage as prior and superior to Lunsford Land Contract interest, which was foreclosed. A sheriffs sale of the Real Estate was ordered. Further, the order specifically permitted Lunsford to petition the trial court following the sheriffs sale to seek any excess proceeds in satisfaction of Lunsford’s junior interest in the Real Estate. Finally, the order resolved all pending motions, including Lunsford’s March 26 offer to settle/motion to dismiss and his November 2012 motions in opposition and to strike documents.

On December 14, 2012, Lunsford filed his motion to correct error, which was denied on January 11, 2013. Lunsford now appeals pro se.

DISCUSSION AND DECISION I. Standard of Review

Lunsford appeals the trial court’s grant of summary judgment in favor of Deutsche Bank. When we review a grant or denial of summary judgment, we apply the same standard as the trial court, namely, summary judgment should be granted when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Deutsche Bank Nat’l Trust Co. v. Mark Dill Plumbing Co., 903 N.E.2d 166, 167-68 (Ind.Ct.App.2009); see also Ind. Trial Rule 56(C). Once the moving party has sustained its initial burden of proving the absence of a genuine issue of material fact, the party opposing summary judgment must respond by designating specific evidence establishing a genuine issue of material fact. Hays v. Harmon, 809 N.E.2d 460, 464 (Ind.Ct.App.2004).

II. Waiver

At the outset, Deutsche Bank claims that Lunsford is barred from asserting several of his claims, including Deutsche Bank lacks standing and refused his offer of payment in full, because he failed to make these arguments before the trial court. It is well-established that the “[fjailure to raise an issue before the trial court waives that issue on appeal.” Salsbery Pork Producers, Inc., v. Booth, 967 N.E.2d 1, 3 (Ind.Ct.App.2012). The reasoning for this rule is two-fold: the opposing party should be given the opportunity to respond at the trial court level, and the trial court should be given the opportunity to consider the issue and make a decision before the issue is taken up on appeal. Baird v. ASA Collections, 910 N.E.2d 780, 786 (Ind.Ct.App.2009); Clarkson v. Dep’t of Ins. of State of Ind., 425 N.E.2d 203, 206 (Ind.Ct.App.1981).

Regarding Lunsford’s claim that Deutsche Bank does not exist and, therefore, lacked standing to bring the foreclosure action, Indiana Trial Rule 9(A) provides that although it is not necessary to prove that a party has the capacity to sue or be sued or that a party exists, “[t]he burden of proving lack of such capacity, authority, or legal existence shall be upon the person asserting lack of it, and shall be pleaded as an affirmative defense.”

Here, Lunsford’s affirmative defenses included:

• The assignment of the mortgage was legally defective because the promissory note contained no provision granting Mortgage Electronic Registration System, Inc. (MERS) any rights. Therefore, MERS could not assign the note.
• Deutsche Bank lacked legal standing to foreclose on the loan because the assignment of the mortgage was legally defective.
• Because the assignment of the mortgage was legally defective, Deutsche Bank has no interest in the note and is precluded from instituting the foreclosure action.
• Deutsche Bank has failed to join indispensable parties to this action, including the current owner and holder of the note.
• Because Deutsche Bank is suing in its capacity as trustee, this is indicative that it is operating within “the securi-tized mortgage loan trust” and as such the true owner of the note and the mortgage are unknown.
• The mortgage was subject to overcol-lateralization and policies placed on it. Thus, “the mortgage loan ... may have been paid down by one or more forms of credit enhancements upon being declared in default.”

Appellee’s App. p. 40-42. Because Luns-ford failed to bring Deutsche Bank’s lack of existence in his affirmative defenses, that claim is waived.

Likewise, Lunsford failed to argue to the trial court that Deutsche Bank refused payment from him. Therefore, this argument is also waived. Waiver notwithstanding, Deutsche Bank provided Luns-ford with payoff information for the loan in its summary judgment pleadings as of January 12, 2012. Appellee’s App. p. 96. Lunsford was again provided with updated payoff information via overnight mail following the summary judgment hearing. Id. at 161-62. Notwithstanding this information, no tender of payment was ever made in satisfaction of the loan documents. A proper tender of payment generally requires full payment of the debt due. Cricket Ridge, LLC v. Wright, 880 N.E.2d 1271, 1277 (Ind.Ct.App.2008). And if the payment is refused, “the tender must be kept open by paying the full amount into court.” Id. Put another way, Lunsford has not alleged, and the record does not show, that he actually attempted to make full payment to Deutsche Bank or that he made payment to the trial court when Deutsche Bank refused the payment. Consequently, this argument fails.

III. Authority to Enforce the Loan Documents

A. Deutsche Bank’s Authority as Trustee

Lunsford claims that Deutsche Bank, in its capacity as trustee, has failed to join an indispensable party by failing to name the trust as a party. Lunsford directs us to Indiana Trial Rule 17(A)(1), which states:

An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought, but stating his relationship and the capacity in which he sues.

Standing is a similar, although not an identical requirement, as the “real party in interest requirement” in Trial Rule 17(A). State ex rel. Ind. State Bd. of Tax Comm’rs v. Ind. Chamber of Commerce, Inc., 712 N.E.2d 992, 996 (Ind.Ct.App.1999). The purpose of both is to ensure that the party before the court has the substantive right to enforce the claim being asserted. Id.

In the instant case, Deutsche Bank sought to enforce the loan documents by filing its complaint in the name, “DEUTSCHE BANK TRUST COMPANY AMERICAS AS TRUSTEE.” Appellee’s App. p. 12. It is in Deutsche Bank’s role as trustee that it is holder of the note and entitled to enforce the loan documents. Indeed, Lunsford correctly states that Deutsche Bank brought this case as trustee for the “RALI SERIES 2005-QS15 TRUST” (Trust). Appellant’s Br. p. 4. However, this undisputed fact does not create a genuine issue of material fact for trial.

Furthermore, as stated earlier, it was not necessary for Deutsche Bank to name the Trust as a party to this foreclosure action. See T.R. 17(A) (stating that a “trustee ... may sue in his own name without joining with him the party for whose benefit the action is brought .... ”); see also Ind.Code § 30-4-3-15 (providing that the “trustee may maintain in his representative capacity a civil action for any legal or equitable remedy against a third person that he could maintain in his own right if he were the owner”). Thus, Deutsche Bank had the authority as trustee to seek to enforce the loan documents.

B. Deutsche Bank is the Holder of the Loan Documents

Indiana has adopted Article 3 of the Uniform Commercial Code (UCC), which governs negotiable instruments, and it is well-established that a promissory note secured by a mortgage is a negotiable instrument. First Valley Bank v. First Sav. & Loan Ass’n of Cent. Ind., 412 N.E.2d 1237, 1240-41 (Ind.Ct.App.1980). Indeed, mortgage notes were considered negotiable instruments before the adoption of the UCC. Id. at 1241.

Indiana Code section 26-1-3.1-301 provides that a negotiable instrument may be enforced by “the holder of the instrument.” The term “holder” includes the person in possession of a negotiable instrument that is payable to “bearer” or a person in possession of a negotiable instrument “payable to bearer or endorsed in blank.” Ind.Code § 26-1-1-201(5), - 201(20)(A).

In this case, Homecomings endorsed the note to Residential Funding Corporation, who endorsed the note to Deutsche Bank as trustee. Appellee’s App. p. 120. Likewise, MERS, as nominee for Homecomings, assigned the mortgage to Deutsche Bank, as trustee. Id. at 121. Therefore, Deutsche Bank was the holder of the note and the mortgage and produced the original loan documents for inspection at the summary judgment hearing. Appellee’s App. 98-121; Tr. p. 7-8.

C. Default

As stated above, Deutsche Bank, as trustee, is a holder and entitled to enforce the loan documents, which are contracts and subject to the rules of contract construction. It is well-established that the interpretation of a contract is a function of the courts, and our standard of review is essentially the same as that applied by the trial court. Centennial Mortg., Inc. v. Blumenfeld, 745 N.E.2d 268, 273 (Ind.Ct.App.2001). Further, contracts will be enforced according to the plain meaning of their terms where such language is unambiguous. Id. at 273-74.

In this case, the language of the loan documents is unambiguous. The note requires monthly installments, and the mortgage provides that upon default under the note and thirty-days’ notice, the entire indebtedness may be accelerated and the mortgage may be foreclosed. Appellee’s App. p. 112. It is undisputed that Cottier defaulted under the loan documents by failing to make payments and did not cure the default. Id. at 96. Consequently, Deutsche Bank is entitled to enforce the loan documents, including by seeking the foreclosure of the mortgage against the Real Estate.

D. Mortgage Lien is Superior to the Land Contract

To properly foreclose the mortgage and extinguish the rights of all junior interest holders, Deutsche Bank was required to name as defendants in its foreclosure action all parties which it knew may assert an interest in the Real Estate. See Citizens State Bank of New Castle v. Countrywide Home Loans, Inc., 949 N.E.2d 1195, 1199 (Ind.2011) (finding that a junior lienholder who is not made a party to a foreclosure action is not bound by such foreclosure and remains unaffected). Accordingly, Deutsche Bank named Luns-ford as a defendant because of his recorded Land Contract. Furthermore, it is the recording of the original mortgage that perfects a lien on the real estate. See Ind.Code §§ 32-21-4-1 to -2.

In the instant case, the mortgage was recorded on August 25, 2005, by the Recorder of Hancock County. Appellee’s App. p. 100. Lunsford’s Land Contract was recorded on March 8, 2006, which was over six months after the mortgage was recorded and perfected. Appellant’s App. p. 55. Consequently, the mortgage is senior in priority to Lunsford’s Land Contract. Moreover, because Lunsford was made a party to Deutsche Bank’s foreclosure action and given the opportunity to assert his junior interest in the Real Estate, the judgment is conclusive on him. See Mid-West Fed. Sav. Bank v. Kerlin, 672 N.E.2d 82, 85 (Ind.Ct.App.1996). Thus, we affirm the trial court’s order granting Deutsche Bank’s motion for summary judgment.

The judgment of the trial court is affirmed.

FRIEDLANDER, J., and VAIDIK, J., concur.

      . In Rankin v. Scott, Chief Justice Marshall stated: "The principle is believed to be universal, that a prior lien gives a prior claim, which is entitled to prior satisfaction, out of the subject it binds_” 25 U.S. (12 Wheat) 177, 179, 6 L.Ed. 592 (1827).

      . As Justice Massa succinctly explained in Citimortgage, Inc. v. Bambas, MERS was created to relieve investment banks from multiple successive assignments that resulted from mortgage-backed securities, which allowed investors to trade mortgages like stocks and bonds. 975 N.E.2d 805, 808-09 (Ind.2012). Banks belonging to MERS can buy and sell mortgage notes among themselves without recording the assignments because the MERS database tracks ownership rights of mortgage loans anywhere in the U.S. Id. at 809. If a MERS loan goes into default, it is assigned to whichever member bank currently owns the note, and that bank forecloses on the borrower. Id.

      . In Lunsford's October 10, 2012 motion in opposition to Deutsche Bank’s motion for summary judgment, he claimed that Deutsche Bank “has no standing” and “has failed to join indispensable parties to this action”; however, on October 19, 2012, the trial court granted Deutsche Bank’s motion to strike Lunsford’s motion in opposition. Appellee’s App. p. 139, 146.

      . As an aside, Deutsche Bank Trust Company Americas is an active bank listed by the FDIC. Federal Deposit Insurance Corporation, http://research.fdic.gov/bankfind/, (September 5, 2013).


author: NAJAM, Judge.

text:
    John EINHORN and Roxanne Einhorn, Appellants-Plaintiffs, v. Scott JOHNSON, Gretchen Johnson, Purdue University Board of Trustees d/b/a Purdue University Cooperative Extension Service, and Marshall County 4-H Fair Association, Inc., Appellees-Defendants.
    No. 50A03-1303-CT-93.
    Court of Appeals of Indiana.
    Oct. 10, 2013.
    Rehearing Denied Dec. 17, 2013.

      Daniel H. Pfeifer, Jerome W. McKeever, Pfeifer, Morgan & Stesiak, South Bend, IN, Attorneys for Appellants.
    Andrew B. Miller, Shannon G. Starr, Starr Austen & Miller, LLP, Logansport, IN, Barry L. Loftus, Jordan J. Szymialis, Stuart & Branigin LLP, Lafayette, IN, Michael H. Michmerhuizen, Charles C. Dubes, Barrett & McNagny LLP, Fort Wayne, IN, Attorneys for Appellees.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

John and Roxanne Einhorn appeal the trial court’s grant of summary judgment in favor of Purdue University Board of Trustees d/b/a Purdue University Cooperative Extension Service (“Purdue”), Marshall County 4-H Fair Association, Inc. (“4-H Fair Association”), and Scott and Gretchen Johnson on the Einhorns’ complaint for damages alleging negligence. The Ein-horns also appeal the trial court’s order dismissing their complaint against Purdue for lack of subject matter jurisdiction. The Einhorns present the following dispos-itive issues for our review:

1. Whether the trial court erred when it concluded that it lacked subject matter jurisdiction over their claims against Purdue.
2. Whether the trial court erred when it concluded that Purdue and 4-H Fair Association are immune from liability under the Equine Activity Statute as a matter of law.
3. Whether the trial court erred when it concluded that the Johnsons were not negligent as a matter of law.
We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

On July 12, 2009, eleven-year-old Renae Johnson was riding her horse, Clu, in the practice arena at the Marshall County 4-H Fairgrounds (“the Fair”) when a nearby truck backed up, sounding a back-up alarm, and “spooked” Clu. Johnsons’ App. at 83. Clu bucked Renae off of him three times in the course of an hour after being spooked, and each time she got bucked off, Renae walked him around the arena before remounting him. Renae’s parents were not present in the arena, but Gretchen had earlier asked Dawn Thomas to watch Renae’s practice. After the bucking incidents, Thomas told Renae that she was not “comfortable with this” and that they needed to “find someone to help us put [Clu] away.” Appellants’ App. at 322. Thomas asked Dean Datson, who was standing nearby, to help her and Renae walk Clu over to the barn, and he agreed.

After Clu was placed in a stall in the barn, Thomas found Gretchen and told her about the bucking incidents in the practice arena. The Johnsons then enlisted the help of Tim Rice, who was an experienced horseman, to help calm Clu. Rice and Re-nae proceeded to clip a lead rope onto Clu and lead him out of the stall. They quickly encountered “a bunch of kids and horses running around which caused Clu to speed up.” Johnsons’ App. at 249. Rice “went to grab a hold of the lead rope to pull Clu back when the lead rope popped. The spring loaded clasp on the lead rope failed[,]” and Clu came loose and walked fifteen to twenty feet outside the barn. Id. Rice and Renae tried to get Clu and were three feet away from him when “kids went by with horses and began hollering and yelling ‘loose horse’ which caused Clu to trot over by the tent with other horses.” Id. Clu then “took off.” Id.

John, who was serving as President of the 4-H Marshall County Horse & Pony Advisory Committee, was riding in an off-road vehicle with his son around the fairgrounds. John had parked the vehicle near the horse barn when he heard someone yell, “Loose horse!” Purdue’s App. at 36. John told his son to stay in the vehicle, and John was out of the vehicle and walking when Clu galloped past him and away from the horse barn. Approximately ten seconds later, Clu was running toward the horse barn, and then John saw Clu running through the barn. John then lost sight of Clu and returned to his vehicle. A short time later, John’s son reported that the horse was coming back again, and John exited the vehicle and found himself in the path of the running horse. John put his arms up and said “Whoa” several times before Clu trampled John. As a result of the collision, John sustained severe injuries.

At the time of the incident, John was working as an unpaid volunteer at the 4-H Fair. Nine days later, on July 21, he was notified that he was eligible for medical benefits under Purdue’s workers’ compensation policy. John ultimately received $79,215.48 in medical benefits from Purdue’s workers’ compensation carrier even though he had not applied for those benefits.

On November 17, 2010, the Einhorns filed a complaint against Purdue, 4-H Fair Association, and the Johnsons, alleging that their negligence proximately caused John’s injuries. On December 3, 2012, Purdue, 4-H Fair Association, and the Johnsons filed summary judgment motions, and Purdue filed a motion to dismiss for lack of subject matter jurisdiction. The Einhorns filed a memorandum in opposition to summary judgment and a motion to strike an affidavit submitted by Purdue in support of summary judgment. The trial court granted Purdue’s motion to dismiss and all three summary judgment motions and denied the Einhorns’ motion to strike the affidavit. This appeal ensued.

DISCUSSION AND DECISION

Issue One: Subject Matter Jurisdiction

The Einhorns first contend that the trial court erred when it concluded that their complaint against Purdue is barred as a matter of law for lack of subject matter jurisdiction. The trial court agreed with Purdue that John’s acceptance of workers’ compensation benefits triggered the exclusivity provision of the Workers’ Compensation Act (“the Act”). But the Einhorns maintain that John was not Purdue’s employee and, therefore, he is not precluded from bringing this civil action against Purdue. We must agree with the Einhorns.

Our supreme court set out the applicable standard of review as follows:

A review of the case authority shows that the standard of appellate review for Trial Rule 12(B)(1) motions to dismiss is indeed a function of what occurred in the trial court. That is, the standard of review is dependent upon: (i) whether the trial court resolved disputed facts; and (ii) if the trial court resolved disputed facts, whether it conducted an eviden-tiary hearing or ruled on a “paper record.”
[W]here the facts are in dispute but the trial court rules on a paper record without conducting an evidentiary hearing, then no deference is afforded the trial court’s factual findings or judgment because under those circumstances a court of review is “in as good a position as the trial court to determine whether the court has subject matter jurisdiction.” MHC Surgical Ctr. Assocs., Inc. v. State Office of Medicaid Policy & Planning, 699 N.E.2d 306, 308 (Ind.Ct.App.1998). See also Farner v. Farner, 480 N.E.2d 251, 257 (Ind.Ct.App.1985) (agreeing with the proposition that “where a case is tried wholly upon documents or stipulations, the appellate tribunal is in as good a position as the trial court to determine the force and effect of the evidence.”) Thus, we review de novo a trial court’s ruling on a motion to dismiss where the facts before the court are disputed and the trial court rules on a paper record.

GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind.2001). Here, the facts before the court were disputed and the court ruled on a paper record. Accordingly, we review the trial court’s grant of Purdue’s motion to dismiss de novo.

The Act provides for compensation of injury or death by accident arising out of and in the course of employment. Estate of Smith v. Stutzman, 964 N.E.2d 904, 906 (Ind.Ct.App.2012). Compensation under the Act is the exclusive remedy for employees under Indiana Code Section 22-3-2-6, which provides:

The rights and remedies granted to an employee subject to IC 22-3-2 through IC 22-3-6 on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, the employee’s personal representatives, dependents, or next of kin, at common law or otherwise, on account of such injury or death, except for remedies available under IC 5-2-6.1.

Indiana Code Section 22-3-6-l(b) defines “employee” to mean “every person, including a minor, in the service of another, under any contract of hire or apprenticeship, written or implied, except one whose employment is both casual and not in the usual course of the trade, business, occupation, or profession of the employer.”

Here, there is no allegation or designated evidence showing that John was under any contract of hire or apprenticeship with Purdue. Indeed, Purdue makes no contention that John was an employee. Purdue’s sole argument on this issue is that John is bound by the exclusivity provision of the Act because he accepted medical payments from Purdue’s workers’ compensation carrier. In support of that contention, Purdue cites Stutzman, where this court held that, “[ojnce an injured employee accepts or receives compensation under the Act, she concedes that the injury was accidental in nature and that it arose out of and in the course of employment.” 964 N.E.2d at 906 (emphasis added). Accordingly, the employee may not later sue her employer in tort based on the same work-related injury. Id.

The undisputed designated evidence shows that John was an unpaid volunteer at the time of the accident with Clu. Further, there is no evidence that John applied for the medical benefits or that he agreed to be bound by the exclusivity provision of the Act by accepting the benefits. We hold on these facts that John’s acceptance of medical payments from Purdue’s workers’ compensation carrier does not change his status from volunteer to employee for purposes of the Act and that John is not bound by the Act’s exclusivity provision. The trial court erred when it granted Purdue’s motion to dismiss for lack of subject matter jurisdiction.

Issue Two: Equine Activity Statute

Our standard of review for summary judgment appeals is well established:

When reviewing a grant [or denial] 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 as 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, 531-82 (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). While we are not bound by the trial court’s findings and conclusions and give them no deference, they aid our review by providing the reasons for the trial court’s decision. See GDC Envtl. Servs. Inc. v. Ransbottom Landfill, 740 N.E.2d 1254, 1257 (Ind.Ct.App.2000).

The Einhorns contend that the trial court erred when it concluded that Purdue and 4-H Fair Association are immune from liability under the Equine Activity Statute (“the statute”) as a matter of law. The statute, Indiana Code Section 34-31-5-1, provides:

(a) Subject to section 2 of this chapter[] an equine activity sponsor or equine professional is not liable for:
(1) an injury to a participant; or
(2) the death of a participant; resulting from an inherent risk of equine activities.
(b) Subject to section 2 of this chapter, a participant or participant’s representative may not:
(1) make a claim against;
(2) maintain an action against; or
(3) recover from;
an equine activity sponsor or equine professional for injury, loss, damage, or death of the participant resulting from an inherent risk of equine activities.

And Indiana Code Section 34-6-2-69 defines “inherent risks of equine activities” as the dangers or conditions that are an integral part of equine activities, including the following:

(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.
(2) The unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals.
(3) Hazards such as surface and subsurface conditions.
(4) Collisions with other equines or objects.
(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant’s ability.

Here, it is undisputed that Purdue and 4-H Fair Association are both “equine activity sponsors” as defined by Indiana Code Section 34-6-2-42 and that John was a “participant” .as defined by Indiana Code Section 34-6-2-95. Further, the Einhorns do not dispute that Purdue and 4-H Fair Association had posted warning signs that complied with Indiana Code Sections 34-31-5-3 and -5. The Einhorns’ sole contention on appeal is that John’s injuries did not stem from an inherent risk of equine activities. In particular, the Einhorns maintain that the designated evidence shows that Clu “charged at, lowered its head, impacted [John], and trampled [John].” Brief of Appellants at 34. The Einhorns allege that “none of the five risks listed in the Indiana statute encompass” such conduct by a horse. Id. at 35. We cannot agree.

In Perry v. Whitley County 4-H Clubs, Inc., 931 N.E.2d 933, 940 (Ind.Ct.App.2010), this court interpreted the list of inherent risks of equine activities to include injury to a participant when she was “unexpectedly kicked by a horse that became agitated” during a 4-H competition. The horse had become agitated because another horse was standing too close nearby and began sniffing its rear, and to remove the danger to the child handling the other horse, the plaintiff had intervened. Id. We held that two of the listed inherent risks were applicable in Perry, namely, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.” Id. (citing I.C. § 34-6-2-69).

The Einhorns urge us to distinguish Clu’s behavior from that of the horse in Perry. And they contend that “none of the five risks listed in the Indiana statute encompass a horse charging at, impacting, and trampling a human being.” Brief of Appellant at 35. But the undisputed designated evidence shows that Clu walked away from Renae and Rice, and they were about to catch him when “kids went by with horses and began hollering and yelling ‘loose horse’ which caused Clu to trot over by the tent with other horses.” John-sons’ App. at 249. Clu then “took off.” Id.

When John saw Clu running around the grounds, he exited his vehicle and told his son to stay inside the vehicle. John testified that “[tjhere was a lot of commotion .... [W]hen a horse is moving that fast, you know, people clear out.” Purdue’s App. at 38. John also testified that he knew horses to be “unpredictable” and to “have a mind of their [sic] own.” Id. at 25. Assuming for purposes of summary judgment that John was merely standing still and that Clu ran into him and trampled him while running loose, we hold that Clu’s behavior falls into more than one category of inherent risks under the statute, namely: the propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine; the unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals; and the potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant’s ability. See I.C. § 34-6-2-69.

As we have noted in footnote 4, above, the Einhorns have waived their allegation that one of the exceptions to the immunity statute applies. Accordingly, the Ein-horns’ negligence claims against Purdue and 4-H Fair Association are precluded because John’s injuries resulted from inherent risks of equine activities. See Perry, 931 N.E.2d at 939. The trial court did not err when it entered summary judgment in favor of Purdue and 4-H Fair Association on that basis.

Issue Three: The Johnsons

Finally, the Einhorns contend that the trial court erred when it entered summary judgment in favor of the Johnsons. The Einhorns maintain that the Johnsons were negligent because, after they were informed that Clu had bucked Renae to the ground three times, the Johnsons “had enough time to remove the horse from the fairgrounds before the horse ran loose from Renae.” Brief of Appellants at 39. But the Johnsons claim that Clu did not have any dangerous propensities of which they knew or should have known at the time John was injured.

In order 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. Pickering v. Caesars Riverboat Casino, LLC, 988 N.E.2d 385, 389 (Ind.Ct.App.2013). In negligence cases, summary judgment is rarely appropriate. Id. This is because negligence cases are particularly fact-sensitive and are governed by a standard of the objective, reasonable person — one best applied by a jury after hearing all of the evidence. Id. Nevertheless, a defendant is entitled to judgment as a matter of law when the undisputed material facts negate at least one element of the plaintiffs claim. Id.

As we explained in Forrest v. Gilley, 570 N.E.2d 934, 935 (Ind.Ct.App.1991), trans. denied:

Horses are domestic animals. Klenberg v. Russell, (1890), 125 Ind. 531, 534, 25 N.E. 596, 597. The owner of a domestic animal is not liable for injuries caused by the animal unless the animal had dangerous propensities known, or which should have been known, to the owner. Burgin v. Tolle, (1986), Ind.App., 500 N.E.2d 763; Doe v. Barnett, (1969), 145 Ind.App. 542, 251 N.E.2d 688. A dangerous propensity is “a propensity or tendency of an animal to do any act which might endanger the safety of person or property in a given situation.” Weaver v. Tucker (1984), Ind.App., 461 N.E.2d 1159, 1161 (citation omitted). If an individual animal lacks dangerous propensities, “the rule is simply that the owner of a domestic animal is bound to know the natural propensities of the particular class of animals to which it belongs.” Burgin, supra, 500 N.E.2d at 766. In either event, the owner must exercise reasonable care to guard against the propensities and to prevent injuries reasonably anticipated from them. Borton v. Lavenduskey, (1985), Ind.App., 486 N.E.2d 639, reh’g. denied, [(1986), Ind.App.] 488 N.E.2d 1129, trans. denied. Thus, Forrest, as a horse owner, owed a duty of reasonable care to prevent any injuries Gilley might suffer as a result of the horse’s dangerous propensities or, in the absence of dangerous propensities, from the horse’s class propensities.

Here, the trial court found that “a one[-]time event such as this (a spooked horse in an unaccustomed environment causing two falls within a few minutes) is quite certainly not a dangerous propensity[.]” Appellants’ App. at 15. But the Einhorns contend that Clu’s bucking Re-nae is evidence of a dangerous propensity. In support of that contention, the Ein-horns cite Forrest, where we observed that “Indiana courts have not had previous occasion to rule on the dangerous propensities required to be shown in a case of a plaintiffs fall from a horse.” 570 N.E.2d at 935. Accordingly, we listed the “common sense results” reached by courts in other jurisdictions, including Missouri, where the Court of Appeals held that, because the defendant had knowledge of his horse’s propensity to buck, there was a genuine issue of material fact whether he owed a duty to give the bucked-off plaintiff notice of that propensity. Heald v. Cox, 480 S.W.2d 107, 111 (Mo.Ct.App.1972).

In Heald, the court explained the bucking tendencies of the defendant’s horse as follows:

Defendant bought the quarter horse in question, named Little Gal, in March or April, 1968. The third time the defendant rode Little Gal after the purchase, the horse “bucked like nobody’s business.” However, defendant managed to get the horse under control on that occasion and was not thrown. Afterwards, defendant rode Little Gal on various occasions and noticed that she “tensed up” but she never again bucked because defendant “didn’t give her a chance to.”
Between the Spring of 1968 when the horse was acquired, and October 6,1968, when plaintiffs accident occurred, Little Gal was also ridden by defendant’s wife, his son Robert, and his fourteen[-]year[-]old grandson Leon. These family members were all more experienced riders than plaintiff, but defendant, nevertheless, warned them “to watch her and not let her get her head or she would buck.” Robert Cox testified that although Little Gal gave him no particular problem, she was “a spirited horse.”

Id at 110. Thus, the evidence in Heald showed that the horse had a tendency to buck and that the defendant was well aware of that tendency prior to the plaintiff being bucked from the horse.

Here, however, the undisputed designated evidence shows that Clu was in an unfamiliar practice arena when he bucked in response to a specific external stimulus, namely, a nearby truck backing up and sounding an alarm. There is no evidence that Clu had ever shown any tendency to buck prior to that time, nor is there any evidence that Clu had demonstrated any dangerous propensities of any kind prior to that time. We agree with the trial court and hold that Clu’s bucking Renae off under the circumstances is not evidence of a dangerous propensity as a matter of law. Accordingly, the Einhorns cannot show that the Johnsons breached a duty of care, and the Johnsons are entitled to summary judgment on the Einhorns’ negligence claims.

Conclusion

Because John was not Purdue’s employee at the time of the accident, his negligence claim against Purdue is not barred by the exclusivity provision of the Workers’ Compensation Act. Purdue and 4-H Fair Association are entitled to summary judgment as a matter of law under the Equine Activity Statute. And the John-sons are entitled to summary judgment as a matter of law because they did not know or have reason to know that Clu had any dangerous propensities prior to the accident.

Affirmed in part and reversed in part.

MATHIAS, J., and BROWN, J., concur.

      . The Horse & Pony Advisory Committee was involved in supervising horses on the fairgrounds and providing safety at the Fair.

      . Witnesses testified that John had stepped into Clu's path and had time to get out of Clu’s way before the collision, but we must consider the facts in a light most favorable to the Einhorns for purposes of this appeal from summary judgment, and John claims that the horse ran into him and trampled him.

      . It is unclear why, having determined that it lacked subject matter jurisdiction over the Einhorns’ claim against Purdue, the trial court nevertheless considered and ruled on the merits of Purdue’s summary judgment motion.

      . Indiana Code Section 34-31-5-2 provides exceptions to the statute. While the Einhorns contend for the first time on appeal that one of the exceptions applies, they have waived that argument for failure to raise it to the trial court. See Dunaway v. Allstate Ins. Co., 813 N.E.2d 376, 387 (Ind.Ct.App.2004).

      . Indiana Code Section 34-31-5-5 provides: The warning notice that must be printed on a sign under section 3 of this chapter and included in a written contract under section 4 of this chapter is as follows: WARNING Under Indiana law, an equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities.

      . We take exception to the Einhorns’ mischar-acterization of the designated evidence as showing that "a horse generally stops or veers when a human puts his arms in the air and says: 'Whoa.' ” Brief of Appellants at 35. The Einhorns cite page 366 of their appendix as support for that statement, but no such support is found there. Rather, that page contains the testimony of a witness who explained that he assesses how a child "gets along with” a horse in terms of the child's ability to control the horse. Appellants’ App. at 366. The witness was asked why it is important to control a horse in a 4-H setting, to which he responded, "Because otherwise he’s out of control. I mean, if he won’t stop when you say, 'Whoa,' you know, and he won't guide, then you can't do anything with him.” Id. Nothing in that testimony refers to a bystander putting his hands in the air and saying “whoa.”

      . We decline the Einhorns’ invitation to consider case law from other jurisdictions.

      . Because we affirm the trial court's entry of summary judgment based on the Equine Activity Statute, we need not address whether Purdue is immune from liability under the Indiana Tort Claims Act ("ITCA”). Likewise, we need not address whether the trial court abused its discretion when it denied the Ein-horns’ motion to strike an affidavit relied upon in support of the ITCA defense.

      . We note that the Einhorns make no contention that John’s injuries stemmed from a failure by the Johnsons to exercise care to guard against any natural propensities of horses. See Forrest, 570 N.E.2d at 935.