author: FRIEDLANDER, Judge. RILEY, Judge,

text:
    Todd J. CRIDER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 91A05-1108-CR-389.
    Court of Appeals of Indiana.
    March 29, 2012.
    Steven Knecht, Vonderheide & Knecht, P.C., Lafayette, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

FRIEDLANDER, Judge.

Todd J. Crider pleaded guilty to theft as a class D felony and admitted to being a Habitual Offender. Pursuant to the terms of a written plea agreement, the trial court sentenced Crider to three years on the theft conviction and enhanced such sentence by three years based on his status as a habitual offender. The trial court ordered that the sentence imposed in this cause be served consecutively to a sentence imposed in a separate cause in Tippecanoe County for an underlying conviction and habitual offender finding. On appeal, Crider challenges his sentence, presenting the following issue for our review: Did the trial court erroneously order the sentence in the instant cause, which includes an enhancement for a habitual offender finding, be served consecutively to the sentence imposed in a separate cause in a different county that also included a habitual offender enhancement?

We dismiss.

On December 1, 2010, the State charged Crider with theft as a class D felony. On February 23, 2011, the State amended the charging information to include a habitual offender allegation. On May 31, 2011, the State and Crider submitted to the court a written plea agreement in which Crider agreed to plead guilty as charged and admit his status as a habitual offender. Under the terms of the plea agreement, Cri-der was to be sentenced to three years for the class D felony theft conviction and such sentence was to be enhanced by an additional three years for the habitual offender determination.

The final sentence of the plea agreement as originally • drafted provided “The sentence in Count II shall be served concurrent with an habitual offender enhancement received in Tippecanoe County.” Appellant’s Appendix at 9. This line is crossed out and is initialed by both Crider and his counsel. Further, the plea agreement originally called for a sentence of one and one-half years to be enhanced by one and one-half years for the habitual offender determination. Each of these terms is likewise crossed out, replaced with three years, initialed by Crider, his counsel, and the prosecutor. The plea agreement also provided:

4. The Defendant waives his right to appeal any sentence imposed by the trial court that is within the range set forth in the plea agreement. Further, the Defendant knowingly, intelligently and voluntarily waives his right to challenge the sentence on the basis that it is erroneous.

Id.

At the guilty plea hearing, the trial court found that a sufficient factual basis existed for Crider’s plea and that Crider knowingly and voluntarily entered his plea. The court held a sentencing hearing on July 18, 2011. At the sentencing hearing, Crider filed a sentencing memorandum in which he challenged the legality of serving the sentence called for in the plea agreement consecutively to the sentence already imposed in Tippecanoe County in which he had also been subjected to a habitual offender enhancement. Crider argued to the court:

Judge, I — briefly touching on the memorandum, the defendant was sentenced in Tippecanoe County on a habitual offender charge I believe in May of this year. It’s [Crider’s] belief and opinion that the habitual offender charge in that case, as well as in this case, those enhancements should be run concurrent, even if the underlying sentences may be run consecutive and then consecutive to one another. Other than that, we believe the plea agreement to be appropriate and request that the Court accept the agreement as presented.

Transcript at 26.

Citing Ind.Code Ann. § 35-50-2-8 (West, Westlaw current through 2011 1st Regular Sess.), the trial court rejected Cri-der’s challenge to the court’s authority to order the sentence in the present case inclusive of the habitual offender enhancement consecutively to the sentence in Tippecanoe County that likewise included a habitual offender enhancement. The trial court then sentenced Crider in accordance with the terms of the plea agreement set out above. The trial court further ordered the sentence in this case be served consecutively to the sentence imposed in Tippecanoe County. Crider now appeals.

Crider is correct that as a general rule, consecutive habitual offender enhancements are not authorized by statute and are therefore improper. See Breaston v. State, 907 N.E.2d 992 (Ind.2009) (citing Starks v. State, 523 N.E.2d 735 (Ind.1988); Smith v. State, 774 N.E.2d 1021 (Ind.Ct. App.2002), trans. denied). We agree with the State, however, that Crider has waived his right to challenge his sentence as erroneous in this respect.

As noted above, as a term of his plea agreement, Crider agreed that he “knowingly, intelligently and voluntarily waive[d] his right to challenge the sentence on the basis that it is erroneous.” Appellant’s Appendix at 9. Clearly, whether the sentence in this cause was to be served consecutively or concurrently with the sentence already imposed in Tippecanoe County was a matter within the contemplation of the parties as they negotiated the terms of the plea agreement. Indeed, as originally drafted, the plea agreement provided that the habitual offender enhancements imposed as part of the two sentences would be served concurrently. This provision was crossed out and initialed by Crider and his counsel. Additionally, prior i,o being sentenced, Crider challenged the trial court’s authority to order the habitual offender enhancements of the two sentences to be served consecutively by submitting a memorandum to the trial court and presenting an argument addressing such issue at the sentencing hearing. Under these circumstances, it is apparent that Crider was well aware that the trial court might order the sentences served consecutively, and yet, Crider moved forward with the plea agreement in its current form, i.e., with no provision regarding the consecutive/concurrent aspect of the sentence in this cause with the sentence already imposed in Tippecanoe County.

Although Crider is not challenging the sentence specified under the terms of the plea agreement as outside the range set forth in the plea agreement, he is alleging the sentence was erroneous in another respect, on grounds at the time he entered the agreement of which he was well aware. Crider “knowingly, intelligently and voluntarily waive[d] his right to challenge the sentence on the basis that it is erroneous.” Appellant’s Appendix at 9.

Appeal dismissed.

MATHIAS, J., concurs.

RILEY, J., dissents with separate opinion.

RILEY, Judge,

dissenting.

I respectfully disagree with the majority’s conclusion that Crider waived his claim that he was illegally sentenced. As the majority notes, consecutive habitual offender enhancements are not authorized by statute and are therefore improper. See Breaston v. State, 907 N.E.2d 992 (Ind.2009). The State argues, and the majority agrees, however, that Crider waived his argument that his sentence was illegal by voluntarily entering into a plea agreement with the knowledge that the trial court could order his habitual offender sentences to run consecutively.

We acknowledge that our supreme court has upheld illegal sentences where a defendant has entered into a plea agreement calling for an illegal sentence and then benefitted from that sentence. See, e.g., Lee v. State, 816 N.E.2d 35, 40 (Ind.2004). As the Lee court explained, “[Defendants who plead guilty to achieve favorable outcomes give up a plethora of substantive claims and procedural rights, such as challenges to convictions that would otherwise constitute double jeopardy. Striking a favorable bargain including a consecutive sentence the court might otherwise not have the ability to impose falls within this category.” Id. (quoting Davis v. State, 771 N.E.2d 647, n. 4 (Ind.2002)). The distinguishing factor between Lee and the instant case is that Crider did not agree to the trial court’s illegal sentence through a plea agreement. As the majority notes, the original draft of the plea agreement provided that the habitual offender enhancements would be served concurrently, yet that provision was crossed out and initialed by Crider and his counsel in the final version. Thus, the plea agreement did not contain any reference to whether the sentence would be served concurrently or consecutively.

The majority argues that because the original draft of the plea contained this provision of concurrent habitual offender enhancements, and because Crider challenged the trial court’s authority to order his sentences to be served consecutively during his sentencing hearing, Crider had knowledge that the trial court might order the sentences served consecutively. However, knowledge is not equivalent to consent, and the evidence of Crider’s arguments illustrates that the opposite is true — Crider did not consent to the illegal sentence. Thus, because Crider did not consent to the illegal sentence in his plea agreement, he cannot be said to have ben-efitted from that sentence as a result of his agreement. Accordingly, I would remand to the trial court with instructions to modify Crider’s sentence.


source: Caselaw Access Project

author: NAJAM, Judge.

license: Public Domain

text:
    CLARK COUNTY DRAINAGE BOARD and Clark County Board of Commissioners, Appellants, v. Robert ISGRIGG, Appellee.
    No. 10A05-1102-PL-68.
    Court of Appeals of Indiana.
    March 30, 2012.

      C. Gregory Fifer, Applegate Fifer Pul-liam LLC, Jeffersonville, IN, Attorney for Appellants.
    Douglas B. Bates, Bruce B. Paul, Stites & Harbison, PLLC, Jeffersonville, IN, Attorneys for Appellee.
   OPINION ON REHEARING

NAJAM, Judge.

[1-3] Robert Isgrigg files a petition for rehearing from our opinion in which we affirmed in part and reversed in part the trial court’s entry of summary judgment for Isgrigg. See Clark County Drainage Bd. v. Isgrigg, 963 N.E.2d 9 (Ind.Ct.App. 2012) (“Clark County I ”). In his petition, Isgrigg contends that our conclusion that the Sunset Hills project did not involve a regulated drain is erroneous for four reasons, two of which we consider on rehearing. For the reasons discussed below, neither of Isgrigg’s assertions on rehearing are meritorious. We affirm our prior opinion in all respects.

Isgrigg first asserts that the Sunset Hills project involved tiled drains. In our prior opinion, we noted that “[t]here is no dispute that the Sunset Hills project did not involve a tiled drain.” Id. at 21 n. 7. Isgrigg made no mention of tiled drains in his appellee’s brief. It is well established that a party may not raise an argument for the first time in a petition for rehearing. Carey v. Haddock, 881 N.E.2d 1050, 1051 (Ind.Ct.App.2008), trans. denied. Nonetheless, in an attempt to avoid his waiver of this issue, on rehearing Is-grigg states that we reached our conclusion “[djespite the fact that the Drainage Board did not argue ... the actual physical characteristics of drains associated with the Sunset Hills project....” Appellee’s Pet. for Reh’g at 2.

Isgrigg’s claim of surprise on this issue is not well founded. The Drainage Board’s second stated issue in its brief to this court was “[w]hether the trial court erroneously concluded that certain drainage improvements ... resulted in the establishment of regulated drains as defined by Indiana law.” Appellant’s Br. at 1. The issue was squarely presented, and we addressed it. In considering this issue with respect to the Sunset Hills project, we held that “the Drainage Board’s subdivision project did not establish a regulated drain under the Indiana Code.” Clark County I, at 11. Our analysis turned on the statutory definition of regulated drains, which, under the plain text of the statute, would include tiled drains if present. Id. at 10-12.

However, instead of arguing that tiled drains were present, Isgrigg made the unsupported argument that any action by the Drainage Board ipso facto established a regulated drain. Id. at 12. The fact that Isgrigg did not address the statutory language in his appellee’s brief is not grounds for relief on rehearing. Whether the Sunset Hills project established a regulated drain under the Indiana Code was plainly before us, and our review of a plainly raised issue is not limited by one party’s failure to fully address it. See, e.g., Van Prooyen Builders, Inc. v. Lambert, 911 N.E.2d 619, 621 (Ind.Ct.App.2009), tram, denied. Having missed his opportunity to present this argument on appeal, Isgrigg may not do so for the first time in his petition for rehearing.

Isgrigg next contends that a swale is a regulated drain under the Indiana Code. In our prior opinion, we noted that Indiana Code Section 36-9-27-2 requires an open drain, which in turn is defined as “a natural or artificial open channel that: (1) carries surplus water; and (2) was established under or made subject to any drainage statute.” We then concluded that “the Drainage Board’s evidence shows that there were no open channels in the Sunset Hills subdivision either before or after its involvement in the Sunset Hills project. A swale is not a regulated drain.” Clark County I, at 22.

In his petition for rehearing, Isgrigg claims that a swale is an open drain because Brian Dixon, the Drainage Board’s expert, testified that he considers them to be. Isgrigg does not otherwise question our statutory interpretation. Isgrigg’s argument is without merit.

Statutory interpretation is a function for the courts, and our goal in statutory interpretation is to determine, give effect to, and implement the intent of the legislature as expressed in the plain language of its statutes. State v. Prater, 922 N.E.2d 746, 749 (Ind.Ct.App.2010), trans. denied. “The first rule of statutory construction is that ‘[wjords and phrases shall be taken in their plain, or ordinary and usual, sense.’ ” Id. (quoting Ind. Code

§ 1 — 1^—1(1)) (alteration original). Here, the statutory definition of an open drain requires an open channel, and “open channel” is not defined by statute. Ind.Code § 36-9-27-2. Applying the dictionary definition, a “channel,” for our purposes, is “the hollow bed where a natural body or stream of water runs or may run ... [;] a long gutter, grove, or furrow.” Webster’s 3d New Int’l Dictionary at 374. Conversely, a swale is “a low-lying stretch of land[;] a small meadow or swamp[;] an elongated depression in the land surface that is at least seasonally wet, is [usually] heavily vegetated, and is normally without flowing water.” Id. at 2305. Nothing about the first definition necessarily captures the second. A “lorg gutter [or] grove” is not the equivalent of “a low-lying ... depression.” See id. at 374, 2305. As such, we affirm our prior opinion.

RILEY, J., and MAY, J., concur.

      . We do not consider Isgrigg’s argument that easements are present at Sunset Hills. As we stated in Clark County I, Isgrigg himself testified that there were no easements present. Clark County I, at 21. He may not reconsider his own testimony now. We also do not consider Isgrigg's argument under Indiana Code Section 36-2-12-8, which he raises for the first time in his petition for rehearing. As discussed below, a party may not raise a new argument in a petition for rehearing. Isgrigg waived his opportunity to have this court consider the applicability, if any, of Indiana Code Section 36-2-12-8.

      . In support of this issue Isgrigg cites to an online handbook published by the Indiana Department of Natural Resources (''DNR”). See Appellee’s Pet. for Reh’g at 3. The relevance of that handbook is not clear. The handbook was neither offered into evidence at trial nor discussed in the briefs on appeal, and we will not consider it for the first time in a petition for rehearing. Further, at no point in this litigation has either side suggested that any standards or regulations of the DNR are at issue or even implicated by this action, and we express no opinion on any such standards or regulations.


author: BROWN, Judge.

text:
    MID-CENTURY INSURANCE COMPANY, Appellant, v. ESTATE OF Thomas Lynn MORRIS, by and through his personal representative, Tommy Lynn Morris, Daemen Sampson, and Dora Robinson, Appellees.
    No. 07 A01-1106-PL-313.
    Court of Appeals of Indiana.
    April 4, 2012.

      Danny L. Worker, Siobhan M. Murphy, Lewis Brisbois Bisgaard & Smith LLP, Chicago, IL, Jan N. Campbell, John M. Mead, Leeuw Oberlies & Campbell, P.C., Indianapolis, IN, Attorneys for Appellant.
    J. Kevin King, Peter Campbell King, Cline, King & King, P.C., Columbus, IN, Attorneys for Appellee, Estate of Thomas Lynn Morris.
    Paul M. Blanton, Blanton & Branstetter, LLC, Paoli, IN, Attorneys for Appellee Daemen Sampson.
   OPINION

BROWN, Judge.

Mid-Century Insurance Company (“Mid-Century”) appeals the trial court’s grant of the Estate of Thomas Lynn Morris’s (“the Estate”) motion to dismiss Mid-Century’s complaint for declaratory judgment. Mid-Century raises one issue which we revise and restate as whether the trial court abused its discretion in granting the Estate’s motion to dismiss. We affirm.

The relevant facts as stated in Mid-Century’s first amended complaint follow. Mid-Century, a reciprocal insurance exchange operating under California law with its principal headquarters in California, issued an automobile liability policy to Dora Robinson which listed Daemen Sampson as a named insured. The policy provided bodily injury limits of $50,000 per person and $100,000 per occurrence. On December 2, 2004, Sampson was operating a vehicle, and Michael Ogle and Thomas Lynn Morris were passengers in the vehicle when the vehicle was involved in a collision with a vehicle driven by Marcia Flaherty.

Prior to the Estate filing suit, Mid-Century believed that the total $100,000 per occurrence liability limits may be exhausted by the three injured party claimants who sustained injuries as a result of the accident. In December 2004, a representative of Mid-Century wrote to the Estate advising of its involvement in handling this claim. On December 10, 2004, J. Kevin King of Cline, King & King, P.C. (the “King Firm”), advised Mid-Century of its representation of the Estate. That same day, Mid-Century responded to the King Firm by advising it of the limited liability limits available and the other potential claimants.

King demanded payment of the $50,000 limit on behalf of the Estate. Mid-Century’s representative explained to King that Mid-Century wanted to attempt to resolve all claims within the insured’s policy limits. King “became upset” and indicated that he would send a policy limit demand. Appellant’s Appendix at 168. On January 10, 2005, King faxed a time limit policy demand giving Mid-Century seven days to pay its limit to the Estate. Mid-Century advised King that it would consider the demand upon receipt of all supporting documentation, including information concerning the two other claimants. On January 18, 2005, King sent another letter to Mid-Century indicating that all information requested by Mid-Century had been provided and reiterated the demand, the time limit to expire on January 17, 2005, and the Estate’s intention to seek an excess judgment in the event that sum of the proceeds was not forthcoming.

On January 18, 2005, the Estate filed suit against Sampson in the Bartholomew Superior Court. Mid-Century retained representation for Sampson. On February 3, .2005, Mid-Century filed a petition to intervene indicating its desire to resolve the multiple claims against Sampson and to pay the policy’s proceeds upon the claimant’s release of Sampson. On May 12, 2005, the court granted Mid-Century’s petition to intervene and instructed Mid-Century to file a complaint for interpleader, which Mid-Century filed on May 24, 2005.

On January 13, 2006, Mid-Century “unconditionally tendered the $50,000 Policy to the ESTATE based upon the facts that Flaherty was to receive underinsured motorist proceeds from her carrier and exhaustion of the limits for the ESTATE would not jeopardize SAMPSON’S rights with regard to the other two potential claimants.” Id. at 169. In response to Mid-Century’s unconditional tender, the Estate “rejected Policy limits as ‘untimely’ without further explanation.” Id.

Sampson’s refusal to participate in discovery resulted in a court order of default on liability issues in the case. Mid-Century “continued to provide a defense and tender of its limits to the ESTATE at all times prior to the entry of the judgment,” but “agreed to do so through SAMPSON’S personal attorney ... as independent defense counsel to handle any issue with regard to the motion to enforce the consent judgment or entry of the same.” Id. at 170.

On April 13, 2010, King proposed a consent judgment in the amount of $850,000, and Mid-Century rejected the proposal on May 20, 2010. The action proceeded to trial and the Bartholomew Superior Court entered a Judgment on Jury Verdict for the Estate in the amount of $1,195,024.00. The Policy’s proceeds had been deposited with the Court by Mid-Century per its interpleader action.

On July 23, 2010, Sampson entered into an “Assignment of All Claims and Covenant Not to Execute” in which he assigned “all claims, including breach of contract, negligence, statutory violations, insurance bad faith, that he may have against ‘Farmers Insurance Group of Companies/The Mid-Century Insurance Company of Los Angeles, California or any related entity of the Farmers Insurance Group of Companies/The Mid-Century Insurance Company of Los Angeles, California,” to the Estate. Id. at 171. Sampson “never requested MID-CENTURY’s consent to enter into the settlement by way of the Assignment or for dismissal of the appeal, and did not have MID-CENTURY’s consent.” Id.

On July 28, 2010, Mid-Century filed a complaint for declaratory relief against the Estate in the Brown Circuit Court. Mid-Century requested the court to declare: (1) Mid-Century’s “failure to tender its limits within seven (7) days was made in good faith in an attempt to protect its insured from multiple claimants arising from a single occurrence where the liability limits were insufficient to provide the insured with protection of.all claims, without sufficient time to investigate all claims;” (2) the Estate’s “time limit demand of seven (7) days was unreasonable;” (3) the Estate “had no reasonable basis in which to deny [Mid-Century’s] tender of policy limits after all potential claimants were involved in the litigation and had agreed to mediate the apportionment of limits;” (4) Mid-Century “breached no duty of good faith and fair dealing owed to its insured;” (5) the “insured’s conduct in entering into first a later non-enforced settlement and then Assignment without [Mid-Century’s] consent was a violation of the Conditions section of the policy;” (6) the “insured breached the contract by entering [into] first a later non-enforced settlement and Assignment agreement leaving [sic] [Mid-Century] from any obligation on the policy;” and (7) Mid-Century “is not obligated to pay any portion of the judgment in excess of its Policy’s limits.” Id. at 34-35.

On October 4, 2010, the Estate filed a motion to dismiss pursuant to Ind. Trial Rule 12(B)(6). The Estate argued that Mid-Century’s declaratory action should be dismissed because its grounds for relief are defenses to a bad faith action in tort and are not proper subjects for declaratory judgment, no issues of contractual interpretation remain to be litigated, and granting Mid-Century’s complaint would deprive the Estate of its right to determine whether, when, and where it will file a bad faith action. On December 28, 2010, the Estate filed a motion to strike Exhibits A to N of Mid-Century’s complaint for declaratory relief, which included the policy, correspondence, the assignment, and pleadings, and a letter from the King Firm regarding an attempt to resolve the litigation attached as Exhibit A of Mid-Century’s response to the Estate’s motion to dismiss. At some point, the Estate filed a complaint against Mid-Century in California and alleged bad faith. Mid-Century argued that the forum was inconvenient. The case was ultimately dismissed without prejudice.

On February 17, 2011, the court granted the Estate’s motion to dismiss. The court stated:

Having reviewed the authorities submitted by the parties, the Court finds that the [Estate’s] motion to dismiss should be, and hereby is granted. Mid-Century Insurance Company (Mid-Century) brought its complaint pursuant to the Indiana 'Declaratory Judgment Act, I.C. 34-14-1-1 et seq. The underlying facts giving rise to this action involve an auto accident that occurred in December 2004 in which Thomas Lynn Morris was killed. Mr. Morris was a passenger in a vehicle driven by Defendant Sampson and insured by Mid-Century. Another vehicle, driven by Marcia Flaherty, also was involved in the accident. The Estate filed suit against Sampson in January 2005 in the Bartholomew Superior Court 2. Mid-Century defended Sampson and also paid for private counsel for Mr. Sampson. Trial was held in May of 2010 and a jury verdict was rendered in favor of the Estate in the amount of $1,195,024.00. Mid-Century’s insurance policy provided bodily injury limits of $50,000.00 per person and $100,000.00 per occurrence.
In this declaratory judgment action, Mid-Century seeks a declaration from the court on eight issues. These issues include a dec'aration that certain actions taken by Mid-Century during settlement negotiations in the Bartholomew County lawsi it were made in good faith; that certain actions of the Estate in those negotiations were unreasonable; that the Estate had no reasonable basis to deny Mid-Century’s tender of policy limits during negotiations; that Mid-Century breached no duty of good faith and fair dealing owed to its insured; that Mr. Sampson’s entry into a proposed settlement and later assignment to the Estate of any action Sampson might have against Mid-Century for bad faith violated the conditions of the policy; that Mr. Sampson breached the contract of insurance by entering into the purported settlement and assignment agreement; and that Mid-Century is not obligated to pay any portion of the judgment in excess of its policy limits. The majority of these requests are, in essence, a request for this Court to determine that Mid-Century acted in good faith in dealing with its insured, Mr. Sampson. At the time the declaratory judgment action was filed by Mid-Century, Mr. Sampson had assigned to the Estate any right Mr. Sampson had to a cause of action against Mid-Century for bad faith, but no such bad faith action had been filed against Mid-Century. On February 1, 2011, approximately a week prior to the hearing, the Estate did file an action against Mid-Century in California for, inter alia, bad faith refusal to settle in the Bartholomew County case.
Indiana’s Declaratory Judgment Act provides courts with the “power to declare rights, status and other legal relations whether or not further relief is or could be claimed.” I.C. 34-14-1-1. The act applies to “[a]ny person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise,” and allows the person to “have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereof.” I.C. 34-14-1-2. Pursuant to I.C. 34-14-1-12, the act is to be remedial. “The purpose of the chapter is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed .and administered.” As noted by the Court in Thompson v. Medical Licensing Bd., 180 Ind.App. 333, 343 [389 N.E.2d 43, 50]. (Ind.Ct.App.1979), [reh’g denied, cert, denied,] “[hjowever, liberal construction does not mean ‘carte blanche’. A declaratory judgment is said to be proper if another legal remedy exists, only ‘where it is appropriate,’ ” (citing, Ind. Rules Procedure, TR 57). In this action, Mid-Century does not ask this Court to “settle and afford relief from uncertainty and insecurity” with respect to the parties’ rights, status and other legal relations arising from the insurance contract and settlement , negotiations in the Bartholomew County case. Rather, Mid-Century asks this court to determine, by way of declaratory judgment, whether Mr. Sampson breached the contract of insurance and whether Mid-Century’s actions in the Bartholomew County case constituted good faith dealing with their insured. In essence, Mid-Century asks this Court to declare whether possible defenses to a prospective, now actual, bad faith claim are valid. These are not appropriate decisions for this Court to make under Indiana’s Declaratory Judgment Act, and are more appropriately resolved through other legal remedies. See, [Cunningham ] Brothers, Inc. v. Bail, et al., 407 F.2d 1165 (7th Cir. 1969)[, cert, denied. 395 U.S. 959, 89 S.Ct. 2100, 23 L.Ed.2d 745 (1969) ]. For this reason, the motion to dismiss Mid-Century’s complaint filed by the Estate and joined in by Mr. Sampson is granted. Pursuant to Trial Rule 12(B), [Mid-Century] shall have 10 days after service of this order to amend its pleading pursuant to Rule 15(A). The cause shall be dismissed 10 days from today’s date absent such amendment.

Id. at 22-24. The court denied the Estate’s motion to strike with respect to Exhibit A which contained the policy and was attached to Mid-Century’s complaint and granted the Estate’s motion with respect to Exhibits B through N.

On February 28, 2011, Mid-Century filed its First Amended Complaint which listed two counts: Count I, “Breach of Contract;” and “Count II, “Declaration of Rights.” Id. at 172, 174. Under Count I, Mid-Century requested the court to make the following declarations: (1) Sampson was in breach of his obligation to cooperate in his defense .under the insurance contract prior to the settlement and assignment to the Estate; (2) Sampson breached the contract by repeatedly entering into a settlement and Assignment agreement; (3) the Estate can have no greater rights than Sampson would have under the policy; (4) Mid-Century is relieved from any obligation on the policy as a result of the breaches discussed above; and (5) Mid-Century is not obligated to pay any portion of the judgment in excess of its policy’s limits. Under Count II, Mid-Century requested the court to make the same declarations as it requested in its July 28, 2010 complaint. On March 10, 2011, the Estate filed a motion to dismiss Mid-Century’s First Amended Complaint. On May 17, 2011, the trial court in California dismissed the complaint without prejudice, and Mid-Century filed a Notice to the Court Regarding Dismissal of California Case in the Brown Circuit Court on May 20, 2011.

On May 27, 2011, the court granted the Estate’s motion to dismiss. The court’s order stated:

Although Mid-Century has now clearly denominated two counts, one captioned breach of contract and one captioned declaration of rights, both counts refer to and seek relief under Indiana’s Declaratory Judgment Act. The Act allows the Court to “determine[ ] any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereof.” I.C. 34-14-1-2. Counts I and II of the First Amendment [sic] Complaint, seeking a declaration of breach of contract and a declaration of rights, respectively, do not seek a determination of the construction or validity of the insurance policy. Nor does the complaint seek a determination of the rights of the parties that could provide relief from uncertainty before the parties continue in a course of conduct or change positions in reliance on an inaccurate appraisal of their rights. The issues raised in the complaint are not appropriate for determination under the Declaratory Judgment Act. The apparent dismissal of the related California action does not change this ruling. Accordingly, the motion to dismiss Mid-Century’s First Amended Complaint is granted.

Id. at 20-21. On August 1, 2011, the Estate filed a complaint against Mid-Century in Ohio and alleged breach of contract and breach of good faith and fair dealing in settling and defending claims against the insured.

The issue is whether the court abused its discretion in granting the Estate’s motion to dismiss under Ind. Trial Rule 12(B)(6). A trial court’s decision on a “defendant’s motion to dismiss a declaratory judgment action, to the extent the defendant challenges the appropriateness of declaratory relief, is reviewed for an abuse of discretion.” Quiring v. GEICO Gen. Ins. Co., 953 N.E.2d 119, 125 (Ind.Ct.App. 2011) (citing KLLM, Inc. v. Legg, 826 N.E.2d 136, 144-145 (Ind.Ct.App.2005), trans. denied). The standard of review as stated in KLLM, Inc. v. Legg follows:

The use of a declaratory judgment is discretionary with the court; therefore, a trial court’s decision to allow a declaratory judgment to proceed is reviewed for an abuse of discretion. See Community Hosps. of Indiana, Inc. v. Estate of North, 661 N.E.2d 1235, 1241 (Ind.Ct. App.1996), trans. denied. When reviewing a Trial Rule 12(B)(6) motion to dismiss in a declaratory judgment action, the facts as alleged in the complaint must be taken as true. Volkswagenwerk, AG. v. Watson, 181 Ind.App. 155, 390 N.E.2d 1082, 1084 (1979).

826 N.E.2d 136, 144 (Ind.Ct.App.2005), trans. denied.

Indiana’s declaratory judgment statute provides that trial courts, within their respective jurisdictions, “have the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” Ind.Code § 34-14-1-1. “Any person interested under a ... written contract, or other writings constituting a contract ... may have determined any question of construction or validity arising under the ... contract.... and obtain a declaration of rights, status, or other legal relations thereunder.” Ind.Code § 34-14-1-2. The declaratory judgment statute’s stated purpose is “to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations,” and it “is to be liberally construed and administered.” Ind.Code § 34-14-1-12. In applying the statute, a trial court “may refuse to render or enter a declaratory judgment or decree where the judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.” Ind.Code § 34-14-1-6.

When considering a motion for declaratory judgment, the test to be applied is whether the issuance of a declaratory judgment will effectively solve the problem, whether it will serve a useful purpose, and whether or not another remedy is more effective or efficient. Dible v. City of Lafayette, 713 N.E.2d 269, 272 (Ind.1999) (citing Volkswagenwerk, A.G., 181 Ind.App. 155, 390 N.E.2d at 1085). The determinative factor is whether the declaratory action will result in a just and more expeditious and economical determination of the entire controversy. Dible, 713 N.E.2d at 272. The use of a declaratory judgment is discretionary with the court and is usually unnecessary where a full and adequate remedy is already provided by another form of action. Id. However, according to Ind. Trial Rule 57, “[t]he existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.” Id. “Although an action for declaratory judgment in Indiana may be appropriate to construe a contract, it is an inappropriate vehicle if its use would result in ‘piecemeal’ litigation.” U.S. Fidelity and Guar. Ins. Co. v. Hartson-Kennedy Cabinet Top Co. Inc., 857 N.E.2d 1033, 1039 (Ind.Ct.App.2006) (citations omitted).

Generally, an insurance company is entitled to maintain a declaratory judgment action to determine the coverage of its policies. Ind. Lumbermens Mut. Ins. Co. v. Am. Log Homes, Inc., 774 N.E.2d 603, 606 (Ind.Ct.App.2002). “The primary purpose of declaratory relief is to permit a plaintiff to obtain a declaration of its rights and liabilities before proceeding with a course of conduct for which it might be held liable, not to declare nonliability for past conduct.” 22A AmJur. 2D Declaratory Judgments § 129 (2012). “A declaratory judgment is not available where the judgment cannot guide and protect the petitioner with regard to some future acts, such as where the insurance company has already denied the claim.” Id.

Mid-Century alleges that it sought “a finding that Sampson, the insured, breached the policy of insurance and that Mid-Century did not breach any obligations it had to its insured that arose from the contract of insurance.” Appellant’s Brief at 7. Mid-Century argues that “[a] grant or denial of the relief requested ... will effectively solve the problem, serve a useful purpose, and is the effective and efficient method to resolve the dispute.” Id. Mid-Century contends that “[e]ven if the bad faith component were premature, the court is still empowered to determine whether Sampson breached his insurance contract by entering into the assignment,” and that “[i]f the court determined that Sampson breached the insurance contract, the breach would relieve Mid-Century from any further obligation under the contract.” Id. at 10. Mid-Century also argues that “if the court were to find Mid-Century did not breach its obligations under the insurance contract the declaration would fully resolve the issues to be addressed.” Id.

The Estate argues that “Mid-Century is not requesting construction of their insurance policy,” but is “seeking declarations of their ‘good faith’ in handling the Estate’s claim which is at issue and their insured’s alleged failure to cooperate with Mid-Century’s defense of that claim.” Appellee’s Brief at 11. The Estate also argues that “Mid-Century’s requests for declarations would necessarily require preemptive litigation of disputed facts about the behavior of the parties to the insurance policy in question,” and that “Mid-Century’s request for declaratory relief went beyond merely construing the contract language and on that basis alone the Circuit Court was not obliged to grant the declaratory judgment Mid-Century requested.” Id. at 17.

In its reply brief, Mid-Century argues that “[tjhere can be no question that by its action, Mid-Century was seeking a determination of its rights and obligations stemming from the contract of insurance given its insured’s breach of the cooperation clause and Mid-Century’s extension of a defense under the policy even after this breach.” Appellant's Reply Brief at 9. Mid-Century maintains that it “does not seek a determination of liability but a construction of a contract after it was breached to determine the insured’s breach of the policy and coverage obligations thereunder.” Id. at 10.

The record reveals that Mid-Century sought a declaratory judgment relating to whether its past conduct was performed in good faith. In other words, Mid-Century essentially attempts to preemptively defend against a claim of breach of duty of good faith. Under the circumstances and given the claims involved, we cannot say that declaratory relief is appropriate or that the trial court abused its discretion in granting the Estate’s motion to dismiss. See Volkswagenwerk, A.G., 181 Ind.App. at 162, 390 N.E.2d at 1086 (holding that the movant for a declaratory judgment was improperly attempting to try issues or determine the validity of defenses in pending cases); Morgan v. Guar. Nat’l Cos., 268 Ga. 343, 345, 489 S.E.2d 803, 806 (1997) (“Because [the insurer] has not demonstrated a need for a legal judgment that would control its future action, in that its defenses to any claim under the policy can be presented when suit is entered by [the insured], a declaratory judgment action was inappropriate.”); cf. Chicago & E. Ill. R.R. Co. v. Reserve Ins. Co., 99 Ill.App.3d 433, 437-438, 54 Ill.Dec. 564, 425 N.E.2d 429, 433 (1981) (holding that the rationale for concluding that it is generally an abuse of discretion to grant declaratory relief relating to nonliability for past conduct is that such proceedings deprive an aggrieved party of the right to decide if, when, and where to file an action to redress the wrong which it allegedly suffered and holding that it was an abuse of discretion to grant declaratory relief on the issue of whether the insured breached the provisions of its insurance policies), reh’g denied.

For the foregoing reasons, we affirm the trial court’s grant of the Estate’s motion to dismiss Mid-Century’s complaint for declaratory judgment.

Affirmed.

MAY, J., and CRONE, J., concur.

      . Mid-Century did not request a transcript in its notice of appeal. The Estate cites to a transcript of a February 8, 2011 hearing in its brief, but the record does not contain the transcript.

      . Mid-Century’s first amended complaint does not specify who was injured or the extent of the injuries.

      . The court granted the Estate's motion for extension of time to respond to Mid-Century’s complaint and ordered the Estate to respond by October 4, 2010.


author: CRONE, Judge.

text:
    Melanie WEBSTER, Appellant-Plaintiff, v. WALGREEN CO., Appellee-Defendant.
    No. 55A01-1110-CT-442.
    Court of Appeals of Indiana.
    April 4, 2012.

      C. Stuart Carter, The Law Office of C. Stuart Carter, Indianapolis, IN, Attorney for Appellant.
    Jeffrey D. Hawkins, Beth A. Schenberg, Crystal G. Rowe, Kightlingher & Gray, LLP, Indianapolis and New Albany, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Melanie Webster filed a complaint against Walgreen Co. by certified mail. Her first attempt at mailing the complaint was returned due to insufficient postage. By the time Webster resent and filed the complaint, the statute of limitations had run. Webster filed a motion to amend the filing date of her complaint to the date that she had originally sent the complaint, which was within the statute of limitations. The trial court denied the motion and thereafter granted Walgreen judgment on the pleadings because the complaint was untimely. Webster appeals the denial of her motion to amend the filing date. We conclude that “mailing” for purposes of the Indiana Trial Rules requires the sender to affix sufficient postage. Therefore, Webster’s complaint was not filed until her second attempt at mailing and was untimely. We affirm the judgment of the trial court.

Facts and Procedural History

Webster’s complaint alleges that on December 17, 2008, she slipped and fell at Walgreen’s Mooresville store due to Walgreen’s negligent failure to remove ice and snow from the sidewalk. On December 13, 2010, Webster’s attorney, C. Stuart Carter, placed the complaint, summons, appearance, and filing fee in an envelope, which he weighed himself. Carter’s postage scale indicated that the envelope weighed six ounces. Carter used Stamps, com to determine that the appropriate amount of postage to send the envelope by certified mail was $6.83. Carter printed the stamp and deposited the envelope in the mail.

The postal service apparently reweighed the envelope and determined that it weighed slightly more than six ounces and that there was $.17 postage due. The postal service delivered the envelope to the clerk of the Morgan County Courts on December 14, 2010, and the clerk declined to pay the postage due. The envelope was returned to Carter on December 21, 2010, a few days after the two-year statute of limitations had run. Without opening the envelope, Carter reweighed it. His scale still read six ounces, but he decided to print a stamp for eight ounces to give himself a margin of error. Carter placed the new stamp on the envelope and resent it on December 21. The clerk received it the next day and stamped the complaint filed on December 22, 2010.

On December 30, 2010, Webster filed a motion to amend the filing date to December 13, the date it had initially been sent by certified mail. Walgreen filed an objection to Webster’s motion, and Webster filed a reply. Webster attached several exhibits to the reply, including a printout of the postal service’s track and confirm records for the envelope and an affidavit from Carter explaining the actions that he had taken to file the complaint. After a hearing on March 4, 2011, the trial court denied Webster’s motion.

Thereafter, Walgreen filed a motion for judgment on the pleadings, asserting that the complaint had been filed outside the statute of limitations. Webster did not dispute that with a filing date of December 22, 2010, the complaint was untimely. Therefore, on September 6, 2011, the trial court granted Walgreen’s motion for judgment on the pleadings. Webster now appeals the court’s underlying ruling denying her motion to amend the filing date.

Discussion and Decision

As a preliminary matter, we address Walgreen’s argument that Webster has waived review of the March 4, 2011 order denying her motion to amend the filing date. Walgreen notes that Webster identified the September 6, 2011 judgment on the pleadings as the appealed order in her notice of appeal and amended appellant’s case summary. Further, Walgreen notes that Webster included the September 6 order in her brief and appendix, but not the March 4 order. Thus, Walgreen argues that Webster has not appealed the March 4 order and cannot challenge the September 6 order because she did not oppose it in the trial court.

Webster’s arguments on appeal are clearly addressed to the March 4 order and not the September 6 order. There is no requirement that an interlocutory appeal be taken; a party may elect to wait until the end of litigation and raise the issue on appeal from the final judgment. Georgos v. Jackson, 790 N.E.2d 448, 452 (Ind.2003). Furthermore, we have previously declined to find waiver of review of an interlocutory order based on the failure to include it in the notice of appeal. See Newman v. Jewish Cmty. Ctr. Ass’n of Indianapolis, 875 N.E.2d 729, 734 (Ind.Ct.App.2008) (on appeal from final judgment, plaintiff challenged interlocutory order dismissing some of the defendants, but did not attach that order to her notice of appeal; we declined to find that review of the interlocutory order had been waived), trans. denied.

Webster should have included the March 4 order in her appendix. See Ind. Appellate Rule 50(A)(2) (appellant’s appendix shall contain “the appealed judgment or order” and any document “necessary for resolution of the issues raised on appeal”). Nevertheless, her failure to do so has not hindered us from conducting our review. The trial court made no findings of fact or conclusions thereon, and the fact that the trial court denied the motion to amend the filing date is not in dispute. The transcript and the chronological case summary both reflect that the motion was denied, and Walgreen has included the order in its appellee’s appendix. We conclude that Webster is appealing the March 4 order and that there is a sufficient record for us to review that order; therefore, we decline to find waiver.

Our decision turns on the interpretation of the Trial Rules; therefore, our review is de novo. See Gulf Stream Coach, Inc. v. Cronin, 903 N.E.2d 109, 111 (Ind.Ct.App.2009) (interpretation of the Trial Rules presents a legal question to be reviewed de novo). Webster argues that her complaint was filed in compliance with Trial Rule 5(F), which states in relevant part:

The filing of pleadings, motions, and other papers with the court as required by these rules shall be made by one of the following methods:
(3) Mailing to the clerk by registered, certified or express mail return receipt requested;
Filing by registered or certified mail and by third-party commercial carrier shall be complete upon mailing or depos-ite.]

Webster argues that a straightforward reading of this rule indicates that her complaint was filed on December 13, 2010, when it was first placed in the mail.

Walgreen argues that a pleading has not been “mailed” unless it has adequate post-

age. In support, Walgreen cites Comer v. Gohil, 664 N.E.2d 389 (Ind.Ct.App.1996), trans. denied. In Comer, the plaintiff placed a medical malpractice complaint in the mail shortly before the expiration of the statute of limitations. The postage was insufficient, and the complaint was returned to the plaintiff after the Department of Insurance declined to pay the postage due. By the time the plaintiff had resent the complaint, the statute of limitations had run.

The trial court held that the complaint was untimely filed, and we affirmed on appeal. Citing Indiana Code Section 27-12-7-3 (now Indiana Code Section 34-18-7-3(b)), we stated that a “proposed medical malpractice complaint is considered filed when mailed by certified mail to the Commissioner of the Department of Insurance.” Comer, 664 N.E.2d at 391. We noted that “affixing a sufficient amount of postage to the envelope was a matter wholly in [the plaintiff’s] hands,” and concluded that mailing the complaint with insufficient postage did not result in the complaint being filed. Id. at 392.

In support of its holding, Comer cited Boostrom v. Bach, 622 N.E.2d 175 (Ind. 1993), cert. denied. In Boostrom, the plaintiff mailed a small claims complaint by certified mail on day the statute of limitations was to run, but did not include the filing fee. The clerk received the complaint, but did not file it until the fee was paid. Our supreme court ruled that the complaint was not filed until the fee was paid. Id. at 176-77. In reaching this conclusion, the court noted that payment of the filing fee “is wholly in the hands of the plaintiff,” id. at 177, and that the court’s “desire to dispose of appeals on the merits whenever possible does not displace the legislative policy which undergirds the statute of limitations,” that is, to spare courts from stale claims and insure that parties are given seasonable notice that a claim is being asserted against them. Id. at 176.

Webster argues that Comer and Boostrom are not on point; the decision in Comer was based on interpretation of the Medical Malpractice Act, and Boostrom was a small clrims case and did not turn on when the complaint was mailed. Nevertheless, we find the rationale of Comer and Boostrom persuasive. The language in the Medical Malpractice Act that was interpreted in Comer is similar to the language of Trial Rule 5. Adequate postage is necessary for effective mailing, and it is in a matter within the plaintiffs control. In this case, Career could have taken the envelope to the post office instead of relying on his own scale. Alternatively, if he had checked the track and confirm records online, he cou'd have seen that it was rejected by the clerk and still would have had a few days to resend the complaint.

Webster has presented us with no authority suggesting that sending a complaint with insufficient postage constitutes “mailing” for purposes of Trial Rule 5. Nor has she shown that public policy favors allowing her case to proceed. Our supreme court held in Boostrom that the policy of deciding cases on the merits whenever possible is outweighed by the legislative policy underpinning statutes of limitation. Id. Although the result is harsh in this case, Webster has not persuaded us that the text of Trial Rule 5 or public policy favor amending the filing date of her complaint. Therefore, we affirm the judgment of the trial court.

Affirmed.

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

      . Carter also made a slight error in the clerk’s address; nevertheless, the postal service was still able to deliver it to the clerk the following day. Because the erroneous address did not affect the timing of the filing of the complaint, we decline to address Walgreen’s arguments to the extent that they concern the erroneous address.


text:
    Calvin HAIR, Appellant/Defendant/Crossclaimant/Counterclaimant, v. Mike SCHELLENBERGER, Appellee/Plaintiff, and Lawyers Title Insurance Corporation, Wells Fargo Bank, N.A., Felix Adejare, and Sharon Adejare, Appellees/Third-Party Defendants.
    No. 49A02-1107-PL-685.
    Court of Appeals of Indiana.
    April 4, 2012.

      Joseph G. Striewe, Indianapolis, IN, Attorney for Appellant.
    Mark S. Gray, Doyle Legal Corporation, P.C., Indianapolis, IN, Attorney for Appel-lee, Mike Sehellenberger.
    Mary A. Slade, Plunkett Cooney, P.C., Indianapolis, IN, Attorney for Appellee, Lawyers Title Insurance Corporation.
   OPINION

CRONE, Judge.

Case Summary

This is a dispute over who has superior title to a piece of property on Talbott Street in Indianapolis (“the Talbott Street Property”). When Mike Sehellenberger purchased the Talbott Street Property at a foreclosure sale, the title search did not show a money judgment that Calvin Hair had obtained against former owners Felix and Sharon Adejare (collectively, “the Adejares”). The judgment had never been indexed in the county records, and Schel-lenberger was unaware of it until a year later, when Hair sent him a letter claiming that he had a judgment lien on the Talbott Street Property. Sehellenberger subsequently filed an action against Hair to remove the cloud on the title. Schellen-berger, his lender, and his title company (collectively, “the Appellees”) sought summary judgment on the basis that Schellen-berger was a bona fide purchaser (“BFP”) as a matter of law. Hair filed a motion for partial summary judgment, seeking a declaratory judgment that the Adejares had fraudulently conveyed the Talbott Street Property and that he had a judgment lien giving him superior title.

The trial court denied Hair’s motion for partial summary judgment and granted the Appellees’ motions for summary judgment. Hair appeals, claiming that the Adejares fraudulently conveyed the Tal-bott Street Property and that his judgment against the Adejares constituted a valid judicial lien of which the Appellees should have been aware. Finding that Hair’s judgment was outside the chain of title and that Sehellenberger was a BFP as a matter of law, we affirm the trial court’s decision in all respects.

Facts and Procedural History

In December 2003, Sharon Adejare purchased the Talbott Street Property. On January 5, 2004, she and her husband Felix Adejare gave a mortgage on the property to Argent Mortgage Company, LLC (“Argent”), and Argent recorded the mortgage on January 28, 2004. On August 16, 2005, Argent assigned the mortgage to Deutsche Bank National Trust Company (“Deutsche Bank”). On November 25, 2005, Sharon transferred the Talbott Street Property and three other parcels to the Aaron et Mosley Land Trust (the “Land Trust”) via quitclaim deed, and the deed was recorded on July 28, 2006.

On April 24, 2006, Homecomings Financial Network, Inc. (“Homecomings”), obtained a foreclosure judgment against Sharon Adejare on a parcel located at 1512 North Alabama Street (“the Alabama Street Property”). As a crossclaimant in that action, Hair obtained a money judgment against the Adejares for $139,800.89. Although Homecomings’ judgment was indexed on the county docket, the clerk of the court did not separately index Hair’s judgment at that time.

On December 21, 2006, Deutsche Bank foreclosed on the Talbott Street Property and obtained a default judgment against the Adejares, the Land Trust, Homecomings, and “ALL OCCUPANTS AND/OR TENANTS WHOSE NAMES ARE UNKNOWN.” Sehellenberger’s App. at 46. Deutsche Bank took ownership of the property via sheriffs deed. On September 26, 2007, after hiring Lawyers Title Insurance Corporation (“Lawyers Title”) to conduct a title search on the Talbott Street Property, Schellenberger purchased the foreclosed property from Deutsche Bank. Schellenberger recorded the special corporate warranty deed on October 25, 2007. Schellenberger financed the purchase with a mortgage given to Provident Financial, LLP (“Provident Funding”), and subsequently assigned to Wells Fargo Bank, N.A. (“Wells Fargo”). Also in 2007, Sharon Adejare filed a voluntary bankruptcy petition.

In a letter to Schellenberger dated October 6, 2008, Hair claimed that he had a judgment lien against the Talbott Street Property. On November 7, 2008, Schel-lenberger filed an action to remove the cloud on the title to the Talbott Street Property, naming Hair, Lawyers Title, and Deutsche Bank as defendants. On February 5, 2009, Sharon Adejare received a general discharge in her Chapter 7 bankruptcy proceeding. On July 31, 2009, Hair’s 2006 judgment against the Adejares was indexed in the county records.

In May 2010, Hair filed a crossclaim against the Adejares and a counterclaim against Schellenberger and mortgage lender Provident Funding. He also added as a counterclaim defendant Wells Fargo, the assignee of Schellenberger’s mortgage. After numerous motions and a change of judge, Schellenberger, Wells Fargo, and Lawyers Title filed motions for summary judgment against Hair, and Hair filed a cross-motion for partial summary judgment on the issue of whether the Adejares fraudulently conveyed the Talbott Street Property to the Land Trust.

On May 27, 2011, following a hearing on the motions, the trial court granted the Appellees’ motions for summary judgment, finding that Schellenberger was a BFP as a matter of law, that Hair’s lien was nullified, and that Wells Fargo’s mortgage was therefore not subject to Hair’s lien claim. The trial court simultaneously denied Hair’s motion for partial summary judgment on the issue of fraudulent convey-anee. Hair filed a motion to correct error, which the trial court denied on June 30, 2011. As part of that order, the trial court dismissed Hair’s claims against Deutsche Bank by stipulation. This appeal ensued. Additional facts will be provided as necessary.

Discussion and Decision

Standard of Review

We review the trial court’s decision to grant or deny summary judgment using the same standard as the trial court. Worman Enters., Inc. v. Boone County Solid Waste Mgmt. Dist., 805 N.E.2d 369, 373 (Ind.2004). A motion for summary judgment is properly granted only when the pleadings and designated evidence reveal that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Bank of New York v. Nolly, 820 N.E.2d 644, 648 (Ind.2005). In determining whether issues of material fact exist, we must accept as true those facts established by evidence favoring the nonmoving party and resolve all doubts against the moving party. Id. A trial court’s decisior to grant summary judgment is clothed with a presumption of validity, and the appellant bears the burden of proving that the trial court erred. Alexander v. Marion County Sheriff, 891 N.E.2d 87, 92 (Ind.Ct.App.2008), trans. denied (2009). Where, as here, parties have filed cross-motions for summary judgment, we apply the same standard and consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id.

I. Hair’s Motion for Partial Summary Judgment

Hair first contends that the trial court erred in denying his motion for partial summary judgment on the issue of the Adejares’ alleged fraudulent conveyance. At the outset, we address Lawyers Title’s argument that Hair’s fraudulent conveyance claim is time-barred. Indiana’s Uniform Fraudulent Transfers Act (“UFTA”) sets a statute of limitations at the later of four years after the transfer was made or one year after the transfer was or could reasonably have been discovered by the claimant. Ind.Code § 32-18-2-19. Lawyers Title argues that Hair failed to raise this issue within the required timeframe. In this vein, we note that Hair did not raise a fraudulent conveyance claim or file any notice of objection to discharge during the pendency of Sharon Adejare’s Chapter 7 bankruptcy proceedings, which extended from 2007 to 2009. Tr. at 32. Thus, he did not officially raise the fraudulent conveyance issue until his May 2010 cross-claim against the Adejares. This was more than four years after their November 2005 conveyance to the Land Trust and more than one year after their July 2006 recording of the deed, which was the date upon which Hair could have reasonably discovered the transfer. Consequently, Hair’s fraudulent conveyance cross-claim is time-barred.

Timing issues notwithstanding, a fraudulent conveyance is a contract for the sale or conveyance of property with intent to hinder or delay creditors. Edwards v. Haverstick, 53 Ind. 348, 351 (1876). Such a conveyance “is illegal as to creditors only. As between the parties, and as to all others than creditors, it is legal and valid, and can be enforced in all of its terms as any other contract.” Id. Indiana Code Section 32-18-2-18(a) states, “A transfer or an obligation is not voidable under Section 14(1) of this chapter against a person who took in good faith and for a reasonable equivalent value or against any subsequent transferee or obligee.” As discussed in detail below, Schellenberger is a BFP and thus is not subject to avoidance of the transfer of the Talbott Street Property from the Adejares to the Land Trust. Lawyers Title’s search of the chain of title on behalf of Schellenberger did not require inquiry into the legitimacy of the Adejares’ transfer of the property to the Land Trust. Thus, even if Hair had filed a timely claim and even if the Adejares’ act of transferring the Talbott Street Property to the Land Trust was fraudulent, the transfer was not voidable vis-á-vis Schellenberger. As such, the trial court did not err in denying Hair’s motion for partial summary judgment.

II. Appellees’ Motions for Summary Judgment

Hair also challenges the trial court’s decision to grant the Appellees’ motions for summary judgment. We note that the trial court issued findings of fact and conclusions of law. Although specific findings and conclusions are not required in summary judgment orders and are therefore nonbinding, they offer valuable insight into the rationale for the judgment and facilitate our review. I/N Tek v. Hitachi, Ltd., 734 N.E.2d 584, 587 (Ind.Ct.App.2000), trans. denied.

In granting the Appellees’ motions for summary judgment, the trial court found in part,

4. Defendant Calvin Hair (Hair) obtained a judgment against both Adejares by way of an entry dated April 24, 2006 in Cause No. 49D07 0505 MF 19445 (Marion Superior Court), but not recorded until July 31, 2009, as the result of an error in the Office of the Marion County Clerk. While Hair had a valid judgment against the Adejare’s [sic] between April 24, 2006 and July 31, 2009, that lien was not a lien of record as to any bona fide purchaser for value during that period.
5. On and after July 28, 2006 there was on file in the Office of the Recorder of Marion County, Instrument No. 2006-113567 which is a quitclaim deed dated November 25, 2005 that describes the subject property, and shows Sharon Adejare and Felix Adejare as grantors and the Aaron et Mosley Land Trust as grantee. Calvin Hair maintains that this conveyance was fraudulent, which has no bearing on the Schellenberger claim.
6. Schellenberger purchased the subject property for value and received a deed from Deutsche Bank dated September 26, 2007 and recorded October 25, 2007 as Instrument No. 2007-152942. 7.[sic] At the time of Schellenberger’s purchase and the deed to him, the chain of title with respect to the property shows that the Adejares were out of title prior to the rendition of Hair’s judgment.
7. There is no genuine dispute as to any material fact articulated in the brief filed in support of summary judgment and necessary to support an entry of judgment. Plaintiff Sehellenberger is entitled to judgment in his favor as a matter of law.
8. As a matter of law, Schellenber-ger is a bona fide purchaser of the property. Hair obtained no lien or interest superior to that of Sehellenberger; Sehellenberger acquired the property free and clear of Hair’s claim.

Appellant’s App. at 22-28.

Specifically, Hair challenges the trial court’s finding that Sehellenberger was a BFP of the Talbott Street Property. To qualify as a BFP, one must purchase in good faith, for valuable consideration, and ■without notice of the outstanding rights of others. Natty, 820 N.E.2d at 648. Hair focuses his challenge not on the consideration or good faith requirements, but on whether Sehellenberger had notice of Hair’s outstanding right against the Tal-bott Street Property. “A purchaser of real estate is presumed to have examined the records of such deeds as constitute the chain of title thereto under which he claims, and is charged with notice, actual or constructive, of all facts recited in such records showing encumbrances, or the non-payment of purchase-money.” Id. (citations and quotation marks omitted).

In a title search, the prospective purchaser or his abstractor assesses the marketability of title to a tract of land by determining the “chain of title.” Beginning with the person who received the grant of land from the United States, the purchaser or abstractor traces the name of the grantor until the conveyance of the tract in question. The particular grantor’s name is not searched thereafter. As the process is repeated, the links in the chain of title are forged.

Szakaly v. Smith, 544 N.E.2d 490, 491-92 (Ind.1989). In searching the chain of title, a prospective purchaser is on notice of any outstanding mortgages, easements, or other encumbrances on the property that appear in the appropriate county indices. Natty, 820 N.E.2d at 651. “A record outside the chain of title does not provide notice to bona fide purchasers for value.” Szakaly, 544 N.E.2d at 492.

On April 24, 2006, Hair, acting as crossclaimant in Homecomings’ foreclosure action against Sharon Adejare on the Alabama Street Property, obtained a money judgment against the Adejares. The question is when that judgment became a lien on the Talbott Street Property. “Courts cannot create judgment liens.” Sullivan State Bank v. First Nat’l Bank, 82 Ind. App. 419, 146 N.E 403, 405 (1925). Instead, they are purely statutory, and the lien’s very existence is dependent upon compliance with the statutory requirements. Id. at 405-06. Indiana Code Section 34-55-9-2 provides in part, “All final judgments for the recovery of money ... constitute a lien upon real estate ... in the county where the judgment has been duly entered and indexed in the judgment docket as provided by law ... after the time the judgment was entered and indexed [.] ” (Emphases added.)

Here, the Adejares conveyed the Talbott Street Property and three other parcels to the Land Trust during the pendency of Homecomings’ action against Sharon. Although Homecomings’ 2006 judgment against Sharon could be found in the county records immediately after its rendering, neither the docket nor the index contained any entry indicating that Hair had obtained a money judgment on a crossclaim against the Adejares. Thus, in 2007, when Schellenberger purchased the Tal-bott Street Property from Deutsche Bank at a foreclosure sale, there was nothing in the county records that would have placed him on notice of Hair’s interest in that parcel. Hair’s 2006 judgment simply was not there and would not be there until it was finally docketed and indexed in 2009— two years after Schellenberger’s purchase and nine months after Schellenberger filed the instant action to remove the cloud on title. Based on the foregoing, we conclude that Schellenberger was a BFP as a matter of law and thus did not purchase the property subject to Hair’s judgment against the Adejares.

In sum, as between these two relatively innocent parties — Schellenberger as a BFP and Hair as holder of a money judgment against the Adejares — we find that the equities favor Schellenberger. As a BFP, Schellenberger could be responsible only for what was, in the county records at the time Lawyers Title searched the county records. He could not cure deficiencies in the records of which he was totally unaware. In contrast, as a judgment holder, Hair could have taken steps to cure the deficiencies, i.e., he could have checked the records to ensure that his judgment was on record and perfected, giving rise to a lien, or he could have acted within the statute of limitations and raised the alleged fraudulent conveyance during Sharon’s bankruptcy proceedings. In short, he was in a better position to prevent the dispute at hand. As such, we find no error in the trial court’s decision to grant full summary judgment in favor of the Appel-lees. Accordingly, we affirm the trial court in all respects.

Affirmed.

NAJAM, J., and VAIDIK, J., concur.

      . Hair has filed a motion for oral argument, which we deny in an order issued contemporaneously with this decision.

      . The Adejares, Wells Fargo, and Provident Funding have not filed appellate briefs and are not participating in this appeal.

      . It is unclear whether Hair is challenging the trial court’s denial of his motion to correct error or the trial court’s decision to grant the Appellees’ motions for summary judgment and to deny his partial motion for summary judgment. However, because his motion to correct error was based on the trial court’s summary judgment rulings, we review this appeal using the standard applicable to summary judgment rulings.

      . We note Schcllenberger’s argument that we lack subject matter jurisdiction to decide this issue because the trial court’s denial of a motion for summary judgment is not a final appealable order. See Cardiology Assocs. of Nw. Ind. v. Collins, 804 N.E.2d 151, 154-55 (Ind.Ct.App.2004) (stating that order denying motion for summary judgment is not final appealable order, since no rights have been foreclosed, but instead, have been held in abeyance pending ultimate determination by trier of fact). Here, the trial court made an ultimate determination when it granted full summary judgment in favor of the Appellees. Thus, we may address the denial of Hair’s motion for partial summary judgment in this appeal.

      . The caption in the 2006 summary judgment decree listed Homecomings as sole plaintiff and listed Calvin Hair among a lengthy list of defendants, without delineating his status as a crossclaimant. Appellant’s App. at 39. As previously noted, the only parcel mentioned in the 2006 judgment against the Adejares was the Alabama Street Property. Id. at 40-42.

      . We note that Wells Fargo, as the assignee of Schellenberger’s purchase money mortgage, also enjoys the status of BFP. See Thomas v. Thomas, 923 N.E.2d 465, 469-70 (Ind.Ct.App.2010) (stating that the law protecting bona fide purchasers applies with equal force to mortgagees).