text:
    PERU SCHOOL CORPORATION a/k/a Peru Community Schools, Appellant-Defendant, v. Gary GRANT, Appellee and Cross-Appellant/Plaintiff, v. Peru School Corporation a/k/a Peru Community Schools, Appellant and Cross-Appellee/Defendant, and Stanley Hall, Cross-Appellee/Defendant.
    No. 52A04-1107-PL-352.
    Court of Appeals of Indiana.
    June 18, 2012.

      Thomas J. Trauring, Kokomo, IN, Attorney for Appellant.
    Jeffry G. Price, Peru, IN, Attorney for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Gary Grant was a school-bus driver with a yearly contract and an at-will custodian for Peru School Corporation a/k/a Peru Community Schools (hereinafter, “Peru Schools”) for nearly twenty-four years. After being terminated during the 2007-08 school year, Grant filed a complaint for wrongful termination. Following a jury trial in which the jury found in favor of Grant and awarded him nearly $175,000 in damages, Peru Schools now appeals the trial court’s denial of its motions for summary judgment and judgment on the evidence and the trial court’s admission of evidence regarding Grant’s salary as a school-bus driver and a custodian until he turns sixty-five years old.

We conclude that the trial court erred in denying Peru Schools’ motion for judgment on the evidence as it pertains to Grant’s employment as an at-will custodian because there is no substantial evidence of detrimental reliance, which is required to defeat the presumption of at-will employment. However, we reach a different result regarding Grant’s employment as a contracted school-bus driver. Because there is a genuine issue of material fact as to why Grant was fired, Grant denies one of the two grounds, and cause is required in order to terminate an employee with a contract for a definite term, we conclude that the trial court properly denied Peru Schools’ motion for summary judgment and left the matter for the jury to resolve. As for damages, because an employee discharged in breach of an employment contract for a definite term is entitled to recover his or her salary for the balance of the term, we conclude that Grant is only entitled to $2422.82 in damages, which represents the rest of his salary as a school-bus driver for the 2007-08 school year minus the unemployment compensation he received. Because of our resolution of the above issues, we do not need to reach the merits of the issues raised in Grant’s cross-appeal. We therefore affirm in part, reverse in part, and remand.

Facts and Procedural History

Peru Schools is an Indiana public-school corporation in Peru, Indiana. From 1983 to 2007, Grant was employed by Peru Schools in two capacities: (1) a school-bus driver under a yearly contract and (2) a full-time, at-will custodian. Grant received a letter each year from the Peru Schools superintendent thanking him for his services “as a bus driver” and providing “reasonable assurance” that he would be employed for the upcoming school year. Ex. 13. Grant received such a letter on May 18, 2007, for the 2007-08 school year. Id. Grant then entered into a School Bus Driver’s Employment Contract for the 2007-08 school year. This contract provides, in relevant part:

In consideration of the agreements hereinafter contained, Driver agrees to drive a school bus furnished by the Employer over a designated route or routes established by the Employer in and for said school corporation during the school year beginning AUGUST 15, 2007, consisting of 9 1/2 months, and continuing until MAY 28, 2008....
* * * * * *
13. This contract incorporates by reference all present policies of the School Corporation with respect to the transportation of students and passengers and are hereby made part of this contract.
⅜ * ⅜ * * *
15. Failure of Driver to comply with the terms of this contract, including all terms and conditions incorporated by reference, shall be deemed cause for dismissal at the option of Employer. In the event of such breach by Driver, Employer’s authorized agent shall first recommend dismissal to Employer’s Governing Body, which may act upon such recommendation without notification or opportunity for Driver to be heard, but such dismissal shall not be effective until the Governing Body takes action on such recommendation. Notwithstanding the above, Employer, acting by its authorized agent, may suspend Driver immediately, for any conduct or omission constituting cause for dismissal, pending actual dismissal.

Appellant’s App. p. 20-21 (emphases added).

The Bus Drivers Handbook, which was incorporated by reference into the School Bus Driver’s Employment Contact, provides in relevant part:

RULES AND REGULATIONS
6. No school bus driver shall permit any other person to drive their school bus, occupy the driver[’]s seat, tamper with the engine/any controls, [or] tamper or use the 2-way bus radio except such persons who are authorized by the School Board or proper school authorities.
* * ⅜ * * ⅜
BUS PARKING
* :|: * * * *
3. When buses are parked at locations other than S & S (Blair Pointe or the high school) care must be taken to secure the buses. If [the] bus is equipped with vandal locks they must be used, the emergency exits and service door must be secured. If the bus is not equipped with vandal locks the bus must be made secure as possible and KEYS REMOVED.

Id. at 189,196.

Grant was assigned Bus 18, which was owned by Peru Schools and equipped with two video cameras. Peru Schools paid for the bus fuel and maintenance. Grant parked the school bus at his house when it was not in use. In November 2007, Grant reported vandalism to a bus seat. Stanley Hall, Director of Finance and Operations for Peru Schools, and David Frushour, Transportation Director for Peru Schools, reviewed the video from Grant’s bus.

On November 20, Grant was called to Hall’s office; Frushour was also there. Hall and Frushour told Grant that the video showed that for three consecutive days during the week of November 12, the bus was started around 4:45 a.m., which meant that it was running for about one and a half hours before Grant even began his route. Because of the placement of the cameras and the darkness, however, it could not be determined who started the bus. Hall and Frushour showed the video to Grant, but Grant denied starting the bus that early because he was still asleep. Grant did not know how the bus was started so early. Grant, however, told Hall and Frushour that he did not secure the bus and left the keys in the bus every night. After Grant left the meeting, Hall and Frushour concluded that Grant had been starting the bus around 4:45 a.m. to waste fuel because he was not assigned extra trips and, therefore, Grant was untruthful in his answers. Id. at 150.

Hall and Frushour then met with the superintendent, Dr. Andrew Melin, and showed him the video. Dr. Melin confirmed that the bus was “started much earlier than normal and the bus was left running for a long period of time.” Tr. p. 228. Dr. Melin had a “grave concern” about the situation because the bus was on Grant’s property and Grant was the only one who had keys, yet Grant had no explanation for how the bus was started one and a half hours before his route began. Id. at 224. Dr. Melin likewise concluded that Grant was being untruthful. Dr. Melin agreed that Grant should be suspended pending termination by the school board. Id. at 225.

That same day, November 20, Grant received a letter from Hall stating that “[a]fter consideration of the facts that were reviewed with you this morning you are hereby suspended from your duties as a bus driver and custodian pending board action on November 26, 2007. I will be recommending the termination of your employment with Peru Community Schools.” Appellee’s App. p. 139. Hall and Frushour drove to Gary’s house and took the bus. Hall later called Grant to explain the letter.

The school board held an executive session on November 26. Dr. Melin, members of the school board, and the school board’s attorney were present. One of the two purposes of the executive session was to “discuss, prior to any determination, that individual’s status as an employee, student, or independent contractor who is a physician.” Appellant’s App. p. 64; Ap-pellee’s App. p. 108. A public session immediately followed. Grant was present at the public session, during which Dr. Melin recommended terminating Grant’s employment as a school-bus driver and a custodian immediately. Appellant’s App. p. 69. No reason was given for the termination during the public session. The board voted four to two to terminate Grant’s employment with Peru Schools. Id.

On November 27, Dr. Melin sent Grant a letter stating that the school board “voted to terminate your employment with the Peru Community School Corporation effective Tuesday, November 27, 2007.” Id. at 66.

On November 28, Hall prepared a memorandum at the direction of Dr. Melin. The memorandum summarizes the facts leading up to Grant’s termination. The memorandum provides, in part:

Mr. Gary Grant arrived at approximately 9:15 a.m. “What have I done now?” he asked when he entered my office. Mr. Frushour showed him the recording of the bus being started two hours before his route began and explained the 3:41 a.m. time stamp was actually 4:41 a.m. Gary said he did not know how the bus could be running at that time because he does not get up until 5:30 a.m. Gary admitted that he started the bus early, but not that early. Mr. Frushour reminded him that the bus was equipped with a pre-heater that only requires 15 minutes to warm up. Gary said he ... knew that and turned off the pre-heater after the bus warmed up. Mr. Frushour told him the pre-heater is to be left on.
We then discussed how someone other than Gary could start the bus at 4:41 a.m. Gary said he leaves the keys in the bus. Mr. Frushour told him to not do that anymore. I asked Gary who could be starting the bus. He did not know. I stated that if someone was starting a diesel bus in his driveway he should be hearing that. Gary said that he could not hear the bus running even if he was in the kitchen. I asked Gary, “Didn’t you notice that the bus was running when you went out to start the bus?” He had no answer.
Mr. Frushour directed Gary not to leave the keys in the bus and not to start the bus until 15 minutes before the beginning of his route at 6:45 a.m. Gary left the building.
* * * * * *
Gary is a full-time custodian and part-time bus driver. Therefore, his rate of pay is higher for driving than other drivers due to over-time requirements. Because of that Gary is not being assigned for extra trips because it is less expensive to use other drivers. Mr. Frushour said that Gary had been in to see him more than once to complain about not being able to get those assignments. Mr. Frushour believed that was the motive for Gary wasting fuel to cost the corporation money that Gary should have been getting.
It was our conclusion that Gary had been starting the bus between 4:41 a.m. and 5:05 a.m. unnecessarily to waste fuel and that he had not been truthful in denying that he did not start the bus that early. Mr. Frushour said, “If it was up to me I would fire him.” I told him that the school board would have to take action for that to happen. We could suspend him from working until the board took action on November 26th.
$ $ ⅜ ⅜ ⅜ ⅜
At approximately 4:45 p.m. on November 26th I called Gary and offered him the opportunity to resign. He said he did not understand why he was being fired because he never lied to me or the administration. He said he would be at the board meeting with his attorney.

Id. at 149-50.

Grant filed for unemployment. When Hall filled out information for the Indiana Department of Workforce Development in December 2007, he said that Grant was discharged because he “[d]id not secure the bus when it was parked at his home” in violation of the handbook. Ex. 9. Grant received six weeks of unemployment totaling approximately $1800. Tr. p. 75-76.

Grant filed a complaint against Peru Schools in June 2009. Grant alleged that he was wrongfully terminated as a school-bus driver and a custodian. Grant sought discovery of the information that was presented during the school board’s executive session; however, Peru Schools claimed such information was privileged and did not turn it over. Grant then filed a motion to compel, which the trial court denied as follows:

In making the denial, the Court finds that the plaintiff is seeking information concerning an executive session of the Board of Trustees, of the Peru School Corporation, that was held on, or about, November 26, 2007. Indiana Code 5-14-1.5-6.1(b), specifically allows executive sessions to discuss an individual’s alleged misconduct or to discuss an individual’s status as an employe[e], including that of an independent contractor who is a school bus driver. It is clear to the Court that the legislature specifically created the executive session exception to cover circumstances such as the one presented in this case.

Appellee’s App. p. 20.

Peru Schools filed a motion for summary judgment the following June. A hearing was held, following which the trial court denied Peru Schools’ motion for summary judgment:

(2) Peru School Corporation’s Motion for Summary Judgment as it concerns Gary Grant’s employment contract as a bus driver is DENIED.
(3) Peru School Corporation’s [Motion] for Summary Judgment as it concerns Gary Grant’s claim for wrongful termination as a school custodian is DENIED.

Appellant’s App. p. 12. Peru Schools did not seek an interlocutory appeal.

A three-day trial was held in the summer of 2011. Exhibit 14 was introduced during Grant’s testimony. Exhibit 14 is a calculation of Grant’s damages based on his salary as a school-bus driver and a custodian for the remainder of the 2007-2008 school year through the 2020-21 school year, which is when Grant will turn sixty-five years old. Grant calculated his lost wages for both jobs to be $534,799.86. Id. at 441-42. Peru Schools objected on grounds that Grant improperly calculated his damages, but the trial court admitted the exhibit and related testimony.

At the conclusion of Grant’s case in chief, Peru Schools orally moved for judgment on the evidence. Peru Schools followed up with a written motion at the close of the evidence. The trial court granted in part and denied in part Peru Schools’ motion. Specifically, the trial court ruled:

2. AT WILL EMPLOYEE/THREE EXCEPTIONS: The Court DENIES Defendant Peru School Corporation’s motion for judgment on the evidence as whether, or not, the Plaintiff has established one of the recognized exceptions to the employment at will doctrine. It appears that the Plaintiff is only asserting the promissory estoppel exception. If the Court’s presumption is inaccurate, further ruling will be made on the other two exceptions specifically.
3. MEASURE OF DAMAGES: The Court DENIES Defendant[’]s request for judgment on the evidence as it concerns the measure of damages.
* * * * * *
6. OPEN DOOR VIOLATION: The Court GRANTS Defendant Peru School Corporation’s request for judgment on the evidence as it concerns the claim that Defendant Peru School Corporation violated the Open Door Law. The Court specifically finds that no evidence was presented supporting this claim or from which any reasonable inference could be made in support of the claim.

Id. at 402-03.

The jury ultimately found in favor of Grant and awarded him $171,082.69 in damages.

Peru Schools appeals, and Grant cross-appeals.

Discussion and Decision

I. Peru Schools’ Appeal

Peru Schools raises several arguments on appeal. Peru Schools contends that the trial court erred in denying its motions for summary judgment and judgment on the evidence regarding termination of Grant’s employment as a school-bus driver and a custodian. Peru Schools also contends that the trial court erred in admitting evidence of Grant’s claimed damages for more than twelve years after his termination.

When reviewing the entry or denial of summary judgment, our standard of review is the same as that of the trial court: summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269 (Ind.2009). All facts established by the designated evidence, and all reasonable inferences from them, are to be construed in favor of the nonmoving party. Naugle v. Beech Grove City Sch., 864 N.E.2d 1058, 1062 (Ind.2007).

The standard of review on a challenge to a motion for judgment on the evidence is the same as the standard governing the trial court in making its decision. State Farm Mut. Auto. Ins. Co. v. Noble, 854 N.E.2d 925, 931 (Ind.Ct.App.2006), trans. denied. Judgment on the evidence is proper where all or some of the issues in a case tried before a jury are not supported by sufficient evidence. Id. A party may move for such judgment on the evidence after the plaintiffs case in chief or after all the evidence in the case has been presented and before judgment. Ind. Trial Rule 50(A). We will examine only the evidence and the reasonable inferences that may be drawn therefrom that are most favorable to the non-movant, and the motion should be granted only where there is no substantial evidence to support an essential issue in the case. Noble, 854 N.E.2d at 931. If there is evidence that would allow reasonable people to differ as to the result, judgment on the evidence is improper. Id.; see also T.R. 50(A).

A. Custodian

The trial court denied Peru Schools’ motion for summary judgment and motion for judgment on the evidence regarding termination of Grant’s employment as a custodian. Because we conclude below that the trial court erred in denying Peru Schools’ motion for judgment on the evidence regarding termination of Grant’s employment as a custodian, we do not address this issue using the summary-judgment standard.

Grant did not have a contract for his job as a custodian. Indiana follows the doctrine of employment at will, which means that employment of indefinite duration may be terminated by either party at will, with or without reason. Baker v. Tremco Inc., 917 N.E.2d 650, 653 (Ind.2009); Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 121 (Ind.1994), reh’g denied. “The presumption of at-will employment is strong, and [the Indiana Supreme Court is] disinclined to adopt broad and ill-defined exceptions to the employment at will doctrine.” Baker, 917 N.E.2d at 653.

In fact, our Supreme Court has recognized only three exceptions to this doctrine. Id. First, if an employee establishes that “adequate independent consideration” supports the employment contract, the Court generally will conclude that the parties intended to establish a relationship in which the employer may terminate the employee only for good cause. Id. at 653-54. “Generally, simply surrendering another job or moving to another location to accept a new position which the employee sought, standing alone, does not constitute adequate independent consideration.” Orr v. Westminster Village N, Inc., 689 N.E.2d 712, 718 (Ind.1997). Adequate independent consideration is provided, however, when the employer is aware that the employee had a position with assured permanency and the employee accepted the new position only after receiving assurances guaranteeing similar permanency, or when the employee entered into a settlement agreement releasing the employer from liability on an employment-related claim against the employer. Id.; see also Baker, 917 N.E.2d at 654.

Second, our Supreme Court has recognized a public-policy exception to the doctrine if a clear statutory expression of a right or a duty is contravened. Baker, 917 N.E.2d at 654.

Third, our Supreme Court has recognized that an employee may invoke the doctrine of promissory estoppel by pleading the doctrine with particularity, demonstrating that the employer made a promise to the employee, the employee relied on the promise to his detriment, and the promise otherwise fits within the Restatement test for promissory estoppel. Id. The Restatement provides:

A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

Restatement (Second) of Contracts § 90(1) (1981); see also Jarboe, 644 N.E.2d at 121 (adopting this Restatement section).

Grant relied on the third exception to the employment-at-will doctrine, promissory estoppel. Grant argued that for over twenty-four years, he received letters from Peru Schools thanking him for his services “as a bus driver” and providing “reasonable assurance” that he would be employed for the upcoming school year. Ex. 13. All the letters were similarly worded. For example, the May 18, 2007, letter provides:

Dear Mr. Grant,
The administration and Board wish to thank you for your services as a bus driver during the 2006-07 school year.
You may accept this letter as reasonable assurance that you will be employed for the 2007-08 school year, for such periods as are established in the school calendar and in accordance with your job classification or a similar classification. Your classification is one of less than twelve months employment.
The Board of School Trustees reserves the right to alter or eliminate any or all positions within this classification, prior to and during the next school year. Notice to the employee, in the event there are position or classification changes, will be given by the employer.
Again, thank you for your services. Enjoy your summer.

Id. According to Grant, he understood these letters to assure him of a job as both a school-bus driver and a custodian for the upcoming school year. Grant argued that his employment as a school-bus driver and a custodian were linked from the beginning. That is, for over two decades Grant was a school-bus driver during the day and a custodian after his afternoon route ended.

Peru Schools argues that the letters do not apply to Grant’s employment as a custodian because the letters begin by specifically thanking Grant for his services “as a bus driver.” But even if the letters provided clear job security as a custodian, which we doubt, Peru Schools argues that there is no evidence that Grant relied on the letters to his detriment, which is a necessary element of promissory estoppel. Indeed, the only evidence that Grant put forward of detrimental reliance was that “he believed he would be employed as a custodian based on the letter received from the school superintendent each year.” Appellee’s Br. p. 29; Tr. p. 62. From this testimony, Grant argues that a reasonable conclusion is that his “employment as a school custodian could not be terminated without cause.” Appellee’s Br. p. 27.

We, however, agree with Peru Schools and find that the record is devoid of any meaningful evidence that Grant relied to his detriment on the letters. See Orr, 689 N.E.2d at 718 (“[The employees] also have not asserted the doctrine of promissory estoppel, and, in any event, the record is devoid of any meaningful evidence that they relied to their detriment upon the Handbook or any other statements by [the employer].”)- There is no evidence that Grant turned down other work or did not seek other work because the letters allegedly assured him of continued employment as a custodian. Cf. Pepsi-Cola Gen. Bottlers, Inc. v. Woods, 440 N.E.2d 696, 699 (Ind.Ct.App.1982) (“We have no difficulty in finding that Woods has a right of action under promissory estoppel; clearly Woods quit her former employment in reliance upon a promise of employment with Pepsi.”). Because there is no substantial evidence to support detrimental reliance, we conclude that the trial court erred in denying Peru Schools’ motion for judgment on the evidence on this issue. Accordingly, Grant is not entitled to defeat the presumption of at-will employment for his job as a custodian through the doctrine of promissory estoppel; Peru Schools could fire Grant as a custodian for any reason or no reason at all, except race, religion, col- or, sex, disability, national origin, or ancestry, which are claims he does not make. See Filter Specialists, Inc. v. Brooks, 906 N.E.2d 835, 838 (Ind.2009).

B. Bus Driver

We, however, reach a different result with regard to the termination of Grant’s employment as a school-bus driver. Because Peru Schools only raises this issue using the summary-judgment standard, we do not address this issue using the motion-for-judgment-on-the-evidence standard.

Grant had a contract with Peru Schools for the 2007-08 school year as a school-bus driver. The contract provided, in part: “Failure of Driver to comply with the terms of this contract, including all terms and conditions incorporated by reference, shall be deemed cause for dismissal at the option of Employer.” Appellant’s App. p. 21. Peru Schools terminated Grant in November 2007, six months before the contract ended. If there is an employment contract for a definite term, and the employer has not reserved the right to terminate the employment before the conclusion of the contract, the employer generally may not terminate the employment relationship before the end of the specified term except for cause or by mutual agreement. Orr, 689 N.E.2d at 717; see also 30 C.J.S. Employer-Employee § 40 (2007) (“Where a contract of employment is for a definite term, it may not be terminated at an earlier period, except for cause or by mutual agreement, unless the right to do so is reserved in the contract. The right to terminate an employment contract for a definite term for cause is implied even if it is not expressly stated in the contract.” (footnotes omitted)).

The facts in this case were heavily disputed regarding whether cause existed to terminate Grant’s school-bus driver’s contract. The memorandum that Hall created contemporaneously with the school-board meeting says that Grant was fired because he started the bus early unnecessarily to waste fuel and had not been truthful in denying that he did not start the bus that early. Appellant’s App. p. 150. In fact, Grant was merely warned during the meeting not to leave his keys in the school bus again. Id. at 149. But later, Peru Schools argued that it fired Grant for leaving the keys in the bus and it really did not matter why he was fired. See Appellant’s Br. p. 28 (“One could only conclude that Grant failed to secure the bus, a violation of his contract, or he started the bus himself and lied to his employer when he refused to admit it.”); Appellant’s Reply Br. p. 13 n. 1 (“Peru School Corporation does not contest [that there is no policy regarding when to start school buses in the morning], but argues [that it] is not relevant because Grant was not terminated for starting the bus early. One of the grounds the administration recommended his termination was that he lied when he denied starting it or knowing how it got started early. As stated earlier, the administration also concluded he had breached his contract by leaving his keys in the bus and failing to secure it.” (emphasis added)).

It, however, does matter why Grant was fired. When there is an employment contract for a definite term, the employer may not terminate the employment relationship before the end of the specified term except for cause. Based on the designated evidence, one could reasonably conclude that Grant was fired not because he left the keys in the bus but rather because he started the bus early and lied to his employer about it. And if that is the reason, then a genuine issue of material fact existed because Grant has always denied starting the bus early. Accordingly, we conclude that the trial court properly denied Peru Schools’ motion for summary judgment on this issue. Because the jury ultimately found that Peru Schools wrongfully terminated Grant’s employment as a school-bus driver, we now proceed to the issue of damages.

3. Damages

Peru Schools contends that the trial court erred in admitting evidence, including Exhibit 14, of Grant’s salary as a school-bus driver and a custodian through the 2020-21 school year, which is when Grant will turn sixty-five years old. Because we found above that the trial court should have granted judgment on the evidence for Peru Schools regarding termination of Grant’s employment as an at-will custodian, Grant is only entitled to damages regarding termination of his employment as a school-bus driver for the contract term of August 15, 2007, to May 28, 2008.

An employee discharged in breach of an employment contract for a definite term is entitled to recover his or her salary for the balance of the term, reduced by what the employee, through reasonable efforts, might have earned in other employment after discharge and before expiration of the contract term. Woods, 440 N.E.2d at 699; 12 I.L.E. Employment § 43 (2009). In addition,

when an employee is wrongfully discharged under a contract for a definite term, the basic measure of damages, subject to any requirement of mitigation, is the wages that would have been earned during the unexpired portion of the term; the employee is normally entitled to receive only what he or she would have received if the contract had been carried out according to its terms, provided that the amount of lost wages is reasonably certain and proven to have been the result of the employer’s breach, and cannot generally recover for any claimed loss of income occurring after expiration of the contract term.

24 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 66.2 (4th ed. 2002) (footnotes omitted); see also 30 C.J.S. Employer-Employee § 124 (2007) (“An employee discharged without good cause prior to the expiration of a definite term contract can recover damages .... The real measure of the employee’s damages is the loss actually sustained by him or her by reason of the wrongful discharge. Broadly speaking, this loss consists of the stipulated wages for the unexpired term.” (footnotes omitted)).

Applying these principles to the case at hand, it is clear that evidence of wages that Grant would have earned after the 2007-08 school year cannot be considered. The evidence shows that had Grant not been terminated, he would have earned $4222.82 for the balance of his contract term as a school-bus driver. The evidence also shows that Grant received $1800 in unemployment compensation during this time. Accordingly, Grant is entitled to recover $2422.82 from Peru Schools for his wrongful termination as a school-bus driver.

II. Grant’s Cross-Appeal

Grant raises several issues in his cross-appeal; however, we do not have to reach their merits given our resolution of the above issues.

First, Grant contends that he was entitled to the information given to the school board during the executive session concerning his performance or misconduct because such information is not privileged under Indiana law. However, we reversed the trial court’s denial of Peru Schools’ motion for judgment on the evidence regarding termination of Grant’s employment as a custodian because there was no substantial evidence of detrimental reliance; therefore, the only employment that matters now is his employment as a school-bus driver. And because the jury found that Peru Schools wrongfully terminated Grant’s employment as a school-bus driver, whatever information that was given to the school board during the executive session concerning his performance or misconduct is not determinative. Accordingly, we do not need to decide whether such information is privileged.

Second, Grant contends that Peru Schools violated Indiana’s Open Door Law, Indiana Code chapter 5-14-1.5, because it essentially “checked the wrong box.” That is, Peru Schools indicated that the purpose of the executive session was “[t]o discuss, prior to any determination, that individual’s status as an employee, student, or independent contractor who is a physician” instead of “[t]o receive information concerning the individual’s alleged misconduct,” which Grant argues more appropriately described what must have happened during the executive session. Appellant’s App. p. 64; Appellee’s App. p. 108; see also Appellee’s App. p. 107 (noting that the purpose of the executive session is “[t]o discuss an individual’s status as an employee”). For the same reason as above, even if Peru Schools “checked the wrong box,” the jury found that Peru Schools wrongfully terminated Grant’s employment as a school-bus driver. Therefore, given our resolution of the termination of Grant’s employment as a custodian, there is no harm.

Finally, Grant contends that the trial court erred in excluding Exhibit 15 from evidence. Exhibit 15 is a certified copy of administrative law judge’s decision in Grant’s unemployment case. See Appel-lee’s App. p. 140-42. Grant argued that the document was admissible to impeach Hall’s credibility regarding why he was fired. The trial court excluded it, however, because “what I keep circling back to um is ... that I believe that the prejudicial impact of having the um ... decision of the administrative law judge in front of this jury outweighs any probative value.” Tr. p. 130 (ellipses in original). Again, because the jury found that Peru Schools wrongfully terminated Grant’s employment as a school-bus driver and given our resolution of the termination of Grant’s employment as a custodian, we need not reach the issue because no harm has resulted from the trial court’s exclusion of this document.

Affirmed in part, reversed in part, and remanded.

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

      . The video was lost after the meeting and therefore was not shown to the jury at trial. Frushour’s computer crashed, and the video could not be retrieved by Peru Schools’ IT Department. Grant has never disputed that the video showed that the bus was started around 4:45 a.m. on those three days.

      . Grant named Hall as a defendant, but the trial court granted Peru Schools’ motion for judgment on the evidence and dismissed Hall as a defendant based on Indiana Code section 34-13-3-5. Appellant’s App. p. 403. We affirm this ruling by the trial court.

      . Peru Schools explains that the purpose of these letters was to disqualify Grant from receiving unemployment compensation as a school-bus driver during the periods when school was not in session. See Ind. Code § 22-4-14-7(a)(2).

      . Although Grant argues on appeal that the handbook was not signed by the superintendent, Grant did not raise this issue at the summary-judgment stage. See Huntington v. Riggs, 862 N.E.2d 1263, 1269 (Ind.Ct.App.2007) ("[Ijssues not raised before the trial court on summary judgment cannot be argued for the first time on appeal and are therefore waived.”), trans. denied.

      . Contrary to Grant’s argument on appeal, Peru Schools is not arguing excessive damages; therefore, it was not required to file a motion to correct error pursuant to Indiana Trial Rule 59(J).


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Ralph W. STAPLES, Respondent.
    No. 49S00-1201-DI-11.
    Supreme Court of Indiana.
    March 7, 2012.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: In 2005, “MR” hired Respondent to represent her and her company in defending a suit brought by an independent contractor. In the course of this representation, Respondent failed: to timely respond to discovery requests, including requests for admissions; to comply with orders to compel discovery; to appear at hearings; to attempt to recreate MR’s file when it was destroyed by storm damage to his office; to inform MR or the court of his departure from his firm; to respond to a summary judgment motion; to appear at a hearing on the motion; to inform MR when judgment was entered against her; and to inform her of an order to appear for proceedings supplemental. MR learned of the judgment when her assets were frozen in October 2006. Respondent falsely told her that he had filed all the necessary paperwork in the case.

Respondent suffered from longstanding depression and was aware that it had a deleterious effect on his practice, but he did not withdraw from representing MR. MR was eventually successful in recovering her legal fees and damages from the malpractice insurer for Respondent’s firm.

The parties cite the following facts in aggravation: (1) MR suffered significant financial damages as a result of Respondent’s actions; and (2) Respondent was advised to seek treatment for his depression in 2007 but did not do so until 2011. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent is cooperating with his treatment for the depression he was suffering from at the time of his misconduct; and (3) Respondent was cooperative with the Commission’s investigation of his mental health status.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.3: Failure to act with reasonable diligence and promptness.
1.4(a)(3): Failure to keep a client reasonably informed about the status of a matter.
1.4(b): Failure to explain a matter to the extent reasonably necessary to permit a client to make informed decisions.
1.16(a)(2): Failure to withdraw from representation when the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.
8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

Discipline: The Court, having considered the submission of the parties, now approves the following agreed discipline. For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 60 days, beginning April 5, 2012, with 30 days actively served and the remainder stayed subject to completion of 24 months of probation. The Court incorporates by reference the terms and conditions of probation set forth in the parties’ Conditional Agreement, which include: Respondent shall comply with mental health treatment as determined and monitored by the Judges and Lawyers Assistance Program during his probation.

Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). Notwithstanding the expiration of the term of probation set forth above, Respondent’s probation shall remain in effect until it is terminated pursuant to Admission and Discipline Rule 23(17.1).

The costs of this proceeding are assessed against Respondent.

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Diamond Z. HIRSCHAUER, Respondent.
    No. 49S00-1201-DI-24.
    Supreme Court of Indiana.
    March 15, 2012.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW IN INDIANA FOR NONCOOPERATION

On January 20, 2012, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission’s investigation of a grievance filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court’s order to show cause. The Commission has filed a “Request for Ruling and to Tax Costs.”

Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23(10)(f)(3), this suspension shall continue until: (1) the Executive Secretary of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation; (2) the investigation or any disciplinary proceedings arising from the investigation are disposed of; or (3) until further order of this Court, provided there are no other suspensions then in effect. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 23(10)(f)(5), that Respondent reimburse the Disciplinary Commission $534.74 for the costs of prosecuting this proceeding.

The Clerk of this Court is directed to give notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys. The Clerk of this Court is further directed to give notice of this order to the Disciplinary Commission and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Mark J. THORNBURG, Respondent.
    No. 49S00-1112-DI-695.
    Supreme Court of Indiana.
    April 10, 2012.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: After passing the bar exam in 1998, Respondent was arrested for and pled guilty to operating a vehicle with a BAC of 0.08 to 0.15%, a class C misdemeanor. He reported this to the Board of Law Examiners and was sworn in later that year. Based on an incident on January 22, 2011, Respondent pled guilty to operating a vehicle while intoxicated with endangerment, a class A misdemeanor. He notified the Commission of this conviction.

The parties cite the following facts in mitigation: (1) Respondent met with the Indiana Judges and Lawyers Assistance Program (“JLAP”) immediately after his second arrest, has cooperated with JLAP’s recommendations, and is in compliance with his monitoring agreement; (2) he has no disciplinary history; and (3) he has been cooperative with the Commission.

Violation: The parties agree that Respondent violated Indiana Professional Conduct Rule 8.4(b), which prohibits committing a criminal act that reflects adversely on honesty, trustworthiness, or fitness as a lawyer.

Discipline: The Court, having considered the submission of the parties, now approves the following agreed discipline.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 90 days, all stayed subject to completion of 24 months of probation, effective April 28, 2012. The Court incorporates by reference the terms and conditions of probation set forth in the parties’ Conditional Agreement, which include:

(1) Respondent shall have no violations of the law or the Rules of Professional Conduct during his probation.
(2) If Respondent violates his probation, the Commission will petition to revoke his probation and request that the stayed suspension be actively served without automatic reinstatement, and that Respondent be reinstated only through the procedures of Admission and Discipline Rule 28(4) and (18).

Notwithstanding the expiration of the term of probation set forth above, Respondent’s probation shall remain in effect until it is terminated pursuant to Admission and Discipline Rule 23(17.1).

The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of James R. KILBURN, Respondent.
    No. 72S00-1107-DI-463.
    Supreme Court of Indiana.
    April 19, 2012.
   PUBLISHED ORDER ACCEPTING RESIGNATION AND CONCLUDING PROCEEDING

Respondent has tendered to this Court a resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17).

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately. The Clerk of this Court is directed to record Respondent’s resignation on the Roll of Attorneys. Respondent shall fulfill all the applicable duties under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED that any attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent’s resignation from the bar of this State, subject to consideration of pending offenses in the event there is a petition for reinstatement.

Respondent shall be ineligible to petition for reinstatement to the practice of law for five years from the date of this order. See Admis. Disc. R. 23(4)(a). Approval of a petition for reinstatement is discretionary and requires clear and convincing evidence of the petitioner’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The Clerk is directed to forward a copy of this Order to the hearing officer if one has been appointed, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Charles P. WHITE, Respondent.
    No. 49S00-1203-DI-156.
    Supreme Court of Indiana.
    April 25, 2012.
   PUBLISHED ORDER OF INTERIM SUSPENSION UPON NOTICE OF GUILTY FINDING

The Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 2S(ll.l)(a), files a “Notice of Guilty Finding and Request for Suspension,” asking that Respondent be suspended from the practice of law in this State, pending further order of this Court or final resolution of any resulting disciplinary action, due to Respondent being found guilty of a crime punishable as a felony.

The Court, being duly advised and upon careful consideration of all materials submitted, now finds that Respondent has been found guilty of the following offenses under Indiana law: Submission of a False, Fictitious, or Fraudulent Registration Application, a class D felony; two counts of Perjury, a class D felony; Voting Outside a Precinct of Residence, a class D felony; Procuring, Casting, or Tabulating a False, Fictitious, or Fraudulent Ballot, a class D felony; and Theft, a class D felony.

IT IS THEREFORE ORDERED that Respondent is suspended pendente lite from the practice of law in this State, effective fifteen (15) days from the date of this order. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26). The interim suspension shall continue until further order of this Court or final resolution of any resulting disciplinary action, provided no other suspension is in effect.

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

All Justices concur.


text:
    In the Matter of James D. NAFE, Jr., Respondent.
    No. 71S00-1201-DI-31.
    Supreme Court of Indiana.
    May 15, 2012.
   PUBLISHED ORDER CERTIFYING TERMINATION OF NONCOOPERATION SUSPENSION

Pursuant to Indiana Admission and Discipline Rule 23(10)(f), this Court suspended Respondent from the practice of law in this State for failing to cooperate with the Disciplinary Commission concerning a grievance filed against Respondent. On May 2, 2012, the Executive Secretary of the Disciplinary Commission filed a “Certification of Compliance,” stating that Respondent has now cooperated with its investigation. Pursuant to Admission and Discipline Rule 23(10)(f)(3), Respondent’s suspension from the practice of law terminated as of the date the certification was filed.

The Court therefore ORDERS that Respondent’s suspension from the practice of law for failure to cooperate in this case be shown as terminated as of May 2, 2012, and that Respondent be shown as reinstated to the practice of law in this state if no other suspension is in effect.

Pursuant to Admission and Discipline Rule 23(10)(f)(5) and Rule 2(h), Respondent’s failure to pay any outstanding costs assessed in this case by the due date of the next annual registration fee (October 1) will subject Respondent to an order of suspension from the practice of law.

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.


text:
    Hugh David REED, Appellant, v. Edward REID, et al., Appellees.
    No. 40S01-1107-PL-436.
    Supreme Court of Indiana.
    May 18, 2012.
   PUBLISHED ORDER

After this case had been fully briefed on transfer and we heard oral argument on March 28, 2012, Appellees filed a document titled “Appellees’ Notes On Oral Argument,” and Appellant filed “Appellant’s Objection To Filing....”

The twelve-page “Notes on Oral Argument” consists of comment on the oral argument, citations, and legal argument on the issues in the case. In other words, but for the absence of covers and a binding, it is essentially an advocate’s brief. Appel-lees did not request permission to file this document, and the Court did not request it. As Appellees note, two decisions mention the use of “notes on oral argument,” see Peak v. State, 240 Ind. 334, 356, 163 N.E.2d 584, 595 (1960) (dissenting opinion of Bobbitt, J.), and Workman v. Workman, 113 Ind.App. 245, 260, 46 N.E.2d 718, 724 (1943), but no opinion has mentioned them in the last fifty years. We are aware that they are discussed in Kenneth Stroud, 4A Indiana Practice (2nd ed.1990) § 11.4, but later versions of this work deleted reference to them. See George Patton, 24 Indiana Practice ch. 11 (3rd ed. 2001) & (2011-12 Supp.).

To whatever extent the filing of “notes on oral argument” without leave of court was once part of Indiana’s appellate practice, it no longer is, and this order is being published to so inform attorneys. Appellate Rule 48 authorizes the filing of a Notice of Additional Authorities when pertinent and significant authorities come to the attention of a party after oral argument, but comment about the citations is limited to a parenthetical or single sentence explaining the authority. Appellees’ “Notes on Oral Argument” document does not conform to this rule. Accordingly, the Appellant’s Objection is SUSTAINED. Appellees’ Notes on Oral Argument is STRICKEN, and the Clerk is directed to return all copies of it to counsel for Appel-lees.

The Clerk is also is directed to send copies of this order to counsel of record and to post this order to the Court’s website. Thomson Reuters is directed to publish this order in the bound volumes of this Court’s decisions.

DICKSON, C.J., and SULLIVAN, RUCKER, DAVID and MASSA, JJ., concur.


author: DAVID and MASSA, JJ.,

text:
    STATE of Indiana ex rel. Scott F. LOGAN, Relator, v. The ELKHART SUPERIOR COURT NO. 3 and The Hon. George W. Biddlecome, As Judge Thereof, Respondents.
    No. 20S00-1204-OR-239.
    Supreme Court of Indiana.
    May 24, 2012.
   PUBLISHED ORDER GRANTING IN PART, AND DENYING IN PART, PETITION FOR WRIT OF MANDAMUS AND PROHIBITION

Relator, by counsel, filed a petition for writ of mandamus and prohibition seeking relief under the Rules of Procedure for Original Actions. Relator alleges that on August 7, 2009, he was arrested on a criminal charge and that he has remained detained on that charge since then without a trial. He argues his right to a speedy trial has been violated. He requests a writ that would require Respondents to dismiss the criminal charge against Relator with prejudice or, in the alternative, order Relator released from jail on his own recognizance pending trial. Responses opposing issuance of the writ have been filed by the Hon. George W. Biddlecome, the Prosecuting Attorney, and the Attorney General of Indiana.

Each member of the Court has had an opportunity to review and consider the materials filed in this original action. Concluding that Relator is entitled to part of the relief he requests, three Justices vote to grant Relator’s petition in part and deny it in part.

Indiana Criminal Rule 4 provides in relevant part:

No defendant shall be detained in jail on a charge, without a trial, for a period in aggregate embracing more than six (6) months from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge (whichever is later); except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar. ... Any defendant so detained shall be released on his own recognizance at the conclusion of the six-month period aforesaid and may be held to answer a criminal charge against him within the limitations provided for in subsection (C) of this rule.

C.R. 4(A); see State ex rel. Bramley v. Tipton Cir. Ct., 835 N.E.2d 479 (Ind.2005) (granting writ requiring relator’s release from jail under C.R. 4(A)). After reviewing the record and considering the parties’ arguments, this Court determines that Relator has been “detained in jail on a charge, without a trial, for a period in aggregate embracing more than six (6) months,” as that period is calculated under Criminal Rule 4(A), and that Criminal Rule 4(A) requires his release from jail.

Accordingly, the Court GRANTS relief in part by ordering that Relator be promptly released on his own recognizance, though he still may be held to answer for the criminal charge against him. See C.R. 4(A). The Court DENIES Relator’s request for discharge from prosecution under Criminal Rule 4(C) and for dismissal based on an alleged violation of his constitutional right, without prejudice to Relator raising those issues in an appeal if he is convicted after a trial. This order is final and effective immediately. Motions to reconsider or petitions for rehearing are not allowed. Ind. Original Action Rule 5(C).

The Clerk is directed to send copies of this order to the Hon. George W. Biddle-come, Elkhart Superior Court, No. B; Bodie J. Stegelmann, 130 N. Main Street, P.O. Box 575, Goshen, IN 46527; John A. Kindley, 123 South Michigan Street, P.O. Box 199, Lakeville, IN 46536; Curtis T. Hill, Prosecuting Attorney, and Susan A. Snyder, Deputy Prosecuting Attorney, 34th Judicial Circuit, 301 South Main Street, Suite 100, Elkhart, IN 46516; Gregory F. Zoeller, Attorney General of Indiana; and Andrew Kobe, Deputy Attorney General.

The Clerk of this Court is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish this order in the bound volumes of this Court’s decisions.

DICKSON, C.J., and SULLIVAN and RUCKER, JJ., concur.

DAVID and MASSA, JJ.,

dissent in part and vote to deny Relator’s petition for writ of mandamus and prohibition in its entirety.


text:
    In the Matter of Mark J. THORNBURG, Respondent.
    No. 49S00-1112-DI-695.
    Supreme Court of Indiana.
    May 25, 2012.
   PUBLISHED ORDER CORRECTING SCRIVENERS ERROR

On April 10, 2012, this Court entered a “Published Order Approving Statement of Circumstances and Conditional Agreement for Discipline” in which the beginning date of Respondent’s probation was erroneously stated as April 28, 2012. The error is hereby corrected to read April 28, 2011.

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Charles R. HYDE, Jr., Respondent.
    No. 89S00-1205-DI-295.
    Supreme Court of Indiana.
    May 25, 2012.
   PUBLISHED ORDER ACCEPTING RESIGNATION AND CONCLUDING PROCEEDING

Respondent has tendered to this Court a resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17).

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately. The Clerk of this Court is directed to record Respondent’s resignation on the Roll of Attorneys. Respondent shall fulfill all the applicable duties under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED that any attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent’s resignation from the bar of this State, subject to consideration of pending offenses in the event there is a petition for reinstatement.

Respondent shall be ineligible to petition for reinstatement to the practice of law for five years from the date of this order. See Admis. Disc. R. 23(4)(a). Approval of a petition for reinstatement is discretionary and requires clear and convincing evidence of the petitioner’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In re Failure to Satisfy Costs in Lawyer Disciplinary Cases of Lindsay T. BOYD, Louis W. Denney, Bradley D. Hamilton, Deborah D. Julian (Kubley), Neil C. Thomas, and Gregory A. Watkins, Respondents.
    No. 94S00-1203-MS-149.
    Supreme Court of Indiana.
    May 25, 2012.
   PUBLISHED ORDER ON PETITION TO SUSPEND ATTORNEYS FOR FAILURE TO PAY COSTS

On March 8, 2012, the Indiana Supreme Court Disciplinary Commission filed a “Petition for Suspension of Certain Attorneys for Failure to Satisfy Costs Ordered in Connection with Certain Proceedings under Indiana Admission and Discipline Rule 23,” asserting each of the Respondents failed to pay costs assessed in a disciplinary action by the due date of the attorney’s annual registration fee (October 1), in violation of the requirements of Indiana Admission and Discipline Rules 23(10)(f)(5) or 23(16), and each Respondent is therefore subject to suspension under Admission and Discipline Rule 2(h).

The Commission has moved to dismiss the petition with respect to the following attorneys because they have since paid their costs in full: Lindsay T. Boyd, Bradley D. Hamilton, Neil C. Thomas, and Gregory A. Watkins.

Being duly advised, the Court now:

(1) DISMISSES the petition with respect to Lindsay T. Boyd, Bradley D. Hamilton, Neil C. Thomas, and Gregory A. Watkins.

(2) SUSPENDS from the practice of law in Indiana the following attorneys: Louis W. Denney and Deborah D. Julian (Kubley). The suspension shall become effective ten days from the date of this order. These Respondents shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). A suspended Respondent may file an application for reinstatement to the practice of law in this state pursuant to Admission and Discipline Rule(2)(h), provided the requirements of that provision are met. Applications for reinstatement or for other relief shall be filed under the cause number for this case.

The Court directs the Clerk to forward a copy of this Order to Respondents or Respondents’ attorneys, to the Indiana Supreme Court Disciplinary Commission, to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


author: PER CURIAM.

text:
    In the Matter of Douglas W. PATTERSON, Respondent.
    No. 82S00-1111-DI-662.
    Supreme Court of Indiana.
    June 20, 2012.
    Pro se, Attorney for the Respondent.
    G. Michael Witte, Executive Secretary, Robert D. Shook, Staff Attorney, Indianapolis, IN, Attorneys for the Indiana Supreme Court Disciplinary Commission.
    Attorney Discipline Action
   PER CURIAM.

We find that Respondent, Douglas W. Patterson, engaged in attorney misconduct by committing three counts of class D felony theft of client funds and by engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. For this misconduct, we find that Respondent should be disbarred.

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s “Verified Complaint for Disciplinary Action.” Respondent’s 1989 admission to this state’s bar subjects him to this Court’s disciplinary jurisdiction. See Ind. Const. art. 7, § 4.

Background

Prior relevant disciplinary actions against Respondent. The Commission filed a verified complaint against Respondent on February 25, 2004, initiating Cause No. 82S00-0402-DI-90. In a per curiam opinion, this Court found that Respondent wrote unauthorized checks totaling $10,500 on the firm’s trust account. Respondent made false statements regarding the matter during the Commission’s investigation and at the hearing. The Court concluded that Respondent violated these Professional Rules of Conduct prohibiting the following misconduct:

Rule 1.15(a): Failure to hold property of clients properly in trust.
Rule 8.4(b): Committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.
Rule 8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

The Court imposed a suspension of at least three years, which is still in effect. See Matter of Patterson, 888 N.E.2d 752 (Ind.2008). On April 30, 2009, this Court entered an order finding Respondent in contempt for practicing law while suspended and imposed a $500 fine. See Matter of Patterson, 907 N.E.2d 970 (Ind.2009).

On January 26, 2011, Respondent was convicted on a guilty plea to three counts of Theft, all class D felonies (the convictions that are the basis of the current action). The Commission filed a “Notice of Guilty Finding and Request for Suspension” on February 21, 2011, initiating Cause No. 82S00-1102-DI-96. The Court entered an order of interim suspension on April 28, 2011, which is still in effect. See Matter of Patterson, 945 N.E.2d 705 (Ind.2011).

The current action. The Commission filed a “Verified Complaint for Disciplinary Action” against Respondent on November 14, 2011. Based on Respondent’s felony convictions described above, the Commission charged Respondent with violating these Professional Rules of Conduct prohibiting the following misconduct:

Rule 8.4(b): Committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.
Rule 8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

Respondent was served with the complaint and did not respond. Accordingly, the hearing officer took the facts alleged in the complaint as true. See Admis. Disc. R. 23(14)(c).

The hearing officer found that Respondent was convicted on a guilty plea to three counts of Theft, all class D felonies. The charges were based on exercising unauthorized control over funds in excess of $17,000 belonging to 24 clients or former clients. The funds included prepaid attorney fees and filing fees. Respondent was sentenced to three years on each count, with one year executed, to be served concurrently.

Discussion

Neither party filed a petition for review of the hearing officer’s report. When neither party challenges the find-mgs of the hearing officer, “we accept and adopt those findings but reserve final judgment as to misconduct and sanction.” Matter of Levy, 726 N.E.2d 1257, 1258 (Ind.2000). We concur in the hearing officer’s findings of fact and conclude that Respondent violated the Rules of Professional Conduct as charged.

Misappropriation of client funds is a grave transgression. It demonstrates a conscious desire to accomplish an unlawful act, denotes a lack of virtually all personal characteristics we deem important to law practice, threatens to bring significant misfortune on the unsuspecting client and severely impugns the integrity of the profession.

Matter of Hill, 655 N.E.2d 343, 345 (Ind.1995).

As to discipline, we frequently look for guidance to the American Bar Association’s Standards for Imposing Lawyer Sanctions (as amended in 1992) (“Standards”). The Standards provide:

Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potentially serious injury to a client.
Disbarment is generally appropriate when a lawyer engages in serious criminal conduct a necessary element of which includes ... misappropriation, or theft....
Disbarment is generally appropriate when a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.
Disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer ... and causes serious or potentially serious injury to a client....

Standards 4.11, 5.11(a), 5.11(b), and 7.1. We conclude that each of these Standards applies to the matter before us. We therefore conclude that Respondent’s conduct warrants disbarment. See Matter of Hill, 655 N.E.2d 343, 345 (Ind.1995) (converting estate funds warranted disbarment).

The Court already has imposed a three-year suspension on Respondent based in part on the conduct underlying the current case. In addition, there are circumstances in this case that were not present ;in the prior case: (1) the amount of client funds converted and the number of clients involved are now known to be greater than .cited in the prior case; and (2) Respondent’s acts have been adjudicated to constitute multiple felonies. These considerations support the Court’s decision that disbarment is warranted at this time.

Conclusion

The Court. concludes that Respondent violated Indiana Professional Conduct Rules 8.4(b) and 8.4(c) by committing three counts of class D felony theft of client funds and by engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

For Respondent’s professional misconduct, the Court disbars Respondent from the practice of law in this state effective immediately. Respondent shall fulfill all the duties of a disbarred attorney under Admission and Discipline Rule 23(26).

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

The Clerk of this Court is directed to give notice of this opinion to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this opinion to the Court’s website, and Thomson Reuters is directed to publish a copy of this opinion in the bound volumes of this Court’s decisions.

All Justices concur.


author: RUCKER, Justice.

text:
    INDIANA DEPARTMENT OF REVENUE, Petitioner (Respondent below), v. UNITED PARCEL SERVICE, INC., Respondent (Petitioner below).
    No. 49S10-1107-TA-417.
    Supreme Court of Indiana.
    June 21, 2012.

      Gregory F. Zoeller, Attorney General of Indiana, Andrew W. Swain, Chief Counsel, Jessica E. Reagan, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
    Richard D. Birns, Birns & Goff, Philadelphia, PA, Jeffrey S. Dible, Frost Brown Todd LLC, Indianapolis, IN, Attorneys for Appellee.
   RUCKER, Justice.

In this case we examine whether income received by a corporation’s affiliated foreign reinsurance companies falls within the ambit of Indiana’s gross premium privilege tax statute and is on that basis exempt from Indiana adjusted gross income tax.

Background

Typically, insurance premiums paid by a corporation are deductible from federal corporate gross income as ordinary and necessary business expenses. See Clinton N. McGrath, Jr., Using Captives to Manage Risk, 35 Am. Inst, of Certified Pub. Accountants Tax Adviser 419, 419 (July 2004). However, a company electing to insure its own risks does not receive this tax benefit. See id. For this and other reasons, “a non-insurance company [may] establish[] an insurance subsidiary (often in Bermuda or another offshore location) to insure risks of the U.S. parent and other subsidiaries.” Joint Comm, on Taxation Reinsurance Analysis at 4 n. 5. This is commonly called a “captive” insurance arrangement. Id.

Insurance companies are subject to federal income tax at regular corporate tax rates, though companies qualifying as “insurance companies” under federal law benefit from certain federal tax code provisions applying specifically to insurance companies. Id. at 14; McGrath, supra, at 419. In Indiana and many other states, insurance companies are required to pay tax on earned premiums, in lieu of state corporate income tax. See Ind.Code §§ 6-3-2-2.8(4), 27-l-18-2(d) (2000 supp.), 27-l-18-2(h) (2001 supp.). See also 14A William Meade Fletcher, Fletcher Cyclopedia of the Law of Corporations § 6966 at dll-12 (perm. ed. rev. vol. 2008).

Foreign insurance companies have been obligated to pay Indiana premiums tax since at least 1873, although Indiana’s first uniform system of income tax was not instituted until 1933. See Linda C. Gugin & James E. St. Clair, The Governors of Indiana 295 (2006); Carlyn E. Johnson, Taxing Interstate Commerce: A New Experience in Indiana, 39 Notre Dame L. 557, 557 (1963-64). In essence, the premiums tax works like an excise tax permitting a foreign insurer to do business in the state. See Fletcher, supra n. 1, § 6966 at 411-12. The tax is typically calculated as a percentage of annual premiums a foreign insurer collects on its policies in the taxing state, minus various deductions. See id. at 412-15. In Indiana, an insurance company that is covered by the premiums tax statute is exempt from income tax. See I.C. §§ 6-3-2-2.8(4), 27 — 1—18—2(d) (2000 supp.), 27-l-18-2(h) (2001 supp.).

Reinsurance is a type of “insurance for insurers.” Joint Comm, on Taxation Reinsurance Analysis, supra n. 1, at 3. More specifically, “[a] reinsurance transaction is an agreement between insurance companies to pass — or cede — a risk, or a block of risks, from one company to the other company.” Id. See also Black’s Law Dictionary 1399 (9th ed. 2009) (defining “reinsurance” as “[i]nsurance of all or part of one insurer’s risk by a second insurer, who accepts the risk in exchange for a percentage of the original premium”). Petitioner United Parcel Service describes reinsurance as essentially an indemnification agreement — a transaction in which one insurer (the reinsurer) indemnifies another insurer (the primary insurer) against all or part of the loss the primary insurer may sustain under the policies of insurance it has issued. See Appellant’s App. at 50 (citing Reinsurance Ass’n. of Am., Fundamentals of Property and Casualty Reinsurance (2007)).

Facts and Procedural History

United Parcel Service (UPS) and its affiliates comprise the world’s largest package delivery company. Appellant’s App. at 38. UPS and its affiliates have traditionally filed a “consolidated” Indiana corporate income tax return whereby UPS filed one tax return on behalf of itself and its affiliates. See I.C. § 6-3-4-14; Pet’r’s Designation of Evidence in Support of Mot. for Summ. J. at 1 [hereinafter D.E.]. UPS’s numerous affiliates include reinsurance companies UPINSCO (formed under the laws of the U.S. Virgin Islands) and UPS Re (formed under the laws of Bermuda) (the “Affiliates”). For its operations nationwide, including in Indiana, UPS decided to obtain worker’s compensation insurance to cover its employees, as well as liability insurance for damage to its packages. During the years at issue, UPS contracted with Liberty Mutual Insurance Company, National Union Fire Insurance Company of Pittsburgh, Pa., and Illinois National Insurance Company (the “Primary Insurers”) to provide this insurance. The Affiliates then reinsured, or indemnified, the Primary Insurers for these risks. As UPS declared at oral argument, it ultimately desired to bear its own risks for worker’s compensation and package damage losses. Oral Arg. Video Tr. at 26:02-26:40. And UPS accomplished this end through the reinsurance arrangement with its Affiliates. Oral Arg. Video Tr. at 26:02-26:40. The net effect is that UPS’s own subsidiaries ultimately insured UPS’s risks, but without the federal tax disadvantages of self-insurance.

This case stems from an Indiana Department of Revenue (“Department”) audit of UPS’s Indiana corporate income tax returns for the years 2000 and 2001. In 2000, UPS amended its originally-filed year 2000 tax return to exclude from federal taxable income, and thus from Indiana adjusted gross income, the income of the Affiliates. These exclusions contributed to a $359,466.00 reduction in UPS’s total Indiana adjusted gross income tax for the year 2000, for which UPS sought a refund. UPS’s 2001 tax return likewise excluded the income of the Affiliates, resulting in a lower total tax liability imposed on UPS than if the income of the Affiliates had been included. In its audit, the Department disallowed the exclusion. The Department also denied UPS’s request for a refund for tax year 2000 and issued a proposed assessment for underpaid taxes in 2001, resulting in a net proposed assessment of $390,715.94. See D.E. at 279.

UPS protested the assessment and after a hearing the Department issued a Letter of Findings denying UPS’s protest. UPS filed a timely appeal of the denial with the Indiana Tax Court. The parties filed cross-motions for summary judgment. After a hearing and in an unpublished order the court granted UPS’s motion for summary judgment and denied the Department’s motion. See United Parcel Serv., Inc. v. Ind. Dep’t of State Revenue, No. 49T10-0704-TA-24, 2010 WL 5549039 (Ind. Tax Ct. December 29, 2010). The court reasoned that because UPS was “subject to” the premium tax, it was exempt from the adjusted gross income tax. We granted review. Additional facts are set forth below where necessary.

Standard of Review

The Indiana Tax Court was established to develop and apply specialized expertise in the prompt, fair, and uniform resolution of state tax cases. Ind. Dep’t of State Revenue v. Belterra Resort Ind., LLC, 935 N.E.2d 174, 176 (Ind.2010). This Court extends cautious deference to decisions within the special expertise of the Tax Court, and we do not reverse unless the ruling is clearly erroneous. Id. We extend the same presumption of validity to Tax Court rulings on summary judgment and apply the same standard of review. Id. at 176-77; Ind. Dep’t of State Revenue v. Bethlehem Steel Corp., 639 N.E.2d 264, 266 (Ind.1994). That is, “[w]hen a summary judgment involves a question of law within the particular purview of the Tax Court, cautious deference is appropriate.” Bethlehem Steel, 639 N.E.2d at 266 (quoting Ind. Dep’t. of State Revenue v. Caylor-Nickel Clinic, P.C., 587 N.E.2d 1311, 1313 (Ind.1992)). We will set aside the Tax Court’s determinations of tax law on summary judgment only if we are definitely and firmly convinced that an error was made. Id.

Discussion

During the tax years at issue, several state taxes applied to corporate income, including an adjusted gross income tax imposed “on that part of the adjusted gross income derived from sources within Indiana of every corporation.” I.C. § 6-3-2-l(b). The adjusted gross income tax is an apportioned tax designed to reach income from interstate transactions. Bethlehem Steel Corp., 639 N.E.2d at 266 n. 4. However, Indiana Code section 6-3-2-2.8(4) provides in relevant part, “there shall be no tax on the adjusted gross income of ... [i]nsurance companies subject to tax under IC 27-1-18-2.” (emphasis added).

In turn, Indiana Code section 27-1-18-2 provides for a gross premium privilege tax, or “premiums tax” for short. In brief, the statute requires all foreign insurance companies “doing business within this state” to report annually to the Department of Insurance “the gross amount of all premiums received by it on policies of insurance covering risks within this state.” I.C. § 27-l-18-2(a). Deducted from this amount are “considerations received for reinsurance of risks within this state.” I.C. § 27-1-18-2(a)(1). Under this statute, the insurance company is taxed at a certain rate on “the excess, if any, of the gross premiums over the allowable deductions.” I.C. § 27-1-18-2(c)(2001 supp.).

Both parties to this litigation have focused on the meaning of the phrase “subject to” under the provision of Indiana Code section 6-3-2-2.8(4). The Department insists that UPS is not subject to the premiums tax because it did not comply with the various provisions of the statute, see supra n. 4, and thus does not qualify for an exemption. Just as important, according to the Department, neither of the Affiliates has ever paid the premiums tax as required by statute. UPS counters it never paid the premiums tax because all the premiums it received were for reinsurance and thus were deductible from gross premiums under section 27-l-18-2(a)(l). UPS asserts, “[i]t is undisputed that the two insurance affiliates of UPS received premiums on policies of insurance covering risks within Indiana.” Br. in Resp. to Pet’n for Review at 2. Thus, UPS posits that the reinsurance Affiliates were “subject to” the premiums tax such that their income should have been excluded from the corporate adjusted gross income tax. Br. in Resp. to Pet’n for Review at 2.

The Tax Court concluded, “[T]o be ‘subject to’ the premiums tax under Indiana Code § 6-3-2-2.8(4) does not mean that one must ‘pay’ the premiums tax; rather, it simply means that one is ‘placed under the authority, dominion, control, or influence’ of the premiums tax under § 27-1-18-2.” United Parcel Serv., No. 49T10-0704-TA-24, slip op. at 6 (footnote omitted) (quoting Webster’s Third New Inti Dictionary 2275 (2002 ed.)). According to the Tax Court “Indiana Code § 6-3-2-2.8(4), in conjunction with Indiana Code § 27-1-18-2, clearly demonstrate^] that UPINSCO and UPS Re were ‘subject to’ the premiums tax under Indiana Code § 27-1-18-2.” Id. at 7.

Assuming without deciding that the Tax Court’s interpretation of the phrase “subject to” is correct, that is, “one is ‘placed under the authority, dominion, control, or influence’ of the premiums tax under § 27-1-18-2” we are of the view this does not resolve the question of whether the Affiliates are entitled to an exemption from the payment of adjusted gross income tax.

As with other statutes, we interpret tax statutes to give effect to their language and the intent of the legislature. See Ind. Wholesale Wine & Liquor Co. v. State ex rel. Ind. Alcoholic Beverage Comm’n, 695 N.E.2d 99, 103, 104-05 (Ind.1998); DeKalb Cnty. E. Cmty. Sch. Dist. v. Dep’t of Local Gov’t Fin., 930 N.E.2d 1257, 1260 (Ind.Tax Ct.2010). Further, “[i]t has long been held that exemption statutes are to be strictly construed against the taxpayer and, therefore, the burden is on the taxpayer to establish its right to an exemption.” Tipton Cnty. Health Care Found., Inc. v. Tipton Cnty. Assessor, 961 N.E.2d 1048, 1051 (Ind.Tax Ct.2012).

The plain language of Indiana Code section 27-1-18-2 requires that ah insurance companies — like UPINSCO and UPS Re—not “organized under the laws of this state” must, at the very least, show they are “doing business within this state” before the companies are entitled to an exemption from adjusted gross income. The very first sentence of the statute reads, “Every insurance company not organized under the laws of this state, ... and doing business within this state shall.... ” I.C. § 27-l-18-2(a) (emphasis added).

Title 27 of the Indiana Code governs the business of insurance within the state of Indiana. Article 1 of this title provides for the creation of a state department of insurance (the “Insurance Department”) which will “have charge of the organization, supervision, regulation, examination, rehabilitation, liquidation, and/or conservation of all insurance companies to which this title is applicable, shall have charge of the enforcement, administration, and execution of the provisions of this title....” (I.C. § 27-1-1-1). The code further provides that the commissioner of the Insurance Department “may issue a certificate of authority to any company when it shall have complied with the requirements of the laws of this state so as to entitle it to do business herein,” and “[n]o company shall transact any business of insurance or hold itself out as a company in the business of insurance in Indiana until it shall have received a certificate of authority as prescribed in this section.” I.C. § 27-l-8-20(a), (c). Foreign insurance companies are specifically required to obtain this certificate of authority, I.C. § 27-1-17-1, and in order to do so they must comply with comprehensive Insurance Department requirements including submitting an application for admission and providing extensive documentation of their corporate organization and financial condition. See I.C. § 27-1-17-4.

Focusing on the fact that UPINSCO and UPS Re are foreign reinsurance companies that collected premiums for reinsurance of risks within the State of Indiana, UPS insists the adjusted gross income of the Affiliates “was and is exempt” from corporate adjusted gross income tax. Pet’r’s Mot. for Summ. J. at 2. However, the mere fact that the Affiliates “collected premiums for reinsurance of risks” in Indiana does not ipso facto establish they were doing business in Indiana. We find support for this view in State ex rel. Crittenberger v. Continental Insurance Co. of New York, 67 Ind.App. 536, 116 N.E. 929 (1917).

In that case the state auditor, Critten-berger, sought to recover premiums tax on reinsurance premiums received by Continental, an insurance company organized under the laws of New York. Continental maintained a primary fire insurance business in Indiana, and also received reinsurance premiums from other foreign insurers for risks located in Indiana. One question in the case was whether under the terms of the premiums tax statute Continental had the duty to pay Indiana premiums tax on the reinsurance premiums it received. The Court of Appeals construed the statute to mean “the tax shall be imposed only on business done within the territorial boundaries of the state of Indiana” because the premiums tax statute applied to “every insurance company not organized under the laws of this state, and doing business therein.” Crittenberger, 116 N.E. at 934-35. The Court of Appeals determined that reinsurance transactions occurring outside of Indiana, even if they involved primary risks located in Indiana, did not amount to business done in the state. The court reasoned:

Where a foreign company takes over from another foreign company, for the purpose of reinsurance, risks on property in this state, the transaction is, of course, between the companies, and the insurer would not be subject to the tax on the reinsurance premium received if the business was not done in this state. And this would be so whether the companies were licensed to do business in this state or not.

Id. at 935. The court next analyzed the reinsurance transaction at issue and found it took place entirely within the state of Illinois. Therefore, the court held that Continental was “not required to pay taxes to the state of Indiana on said reinsurance premiums.” Id. Although interpreting a much earlier version of the premium tax statute, the Court of Appeals’ assessment applies with equal force to the statute before us today.

The question here is whether the summary judgment materials presented to the Tax Court support the conclusion that during the years in question UPINSCO and UPS Re were “doing business within this state.” The record shows and the parties do not dispute the reinsurance transactions at issue took place between foreign companies — that is, neither the Primary Insurers nor UPINSCO and UPS Re are organized under the laws of Indiana. UPS designated a substantial amount of eviden-tiary material concerning its business operations including agreements governing its reinsurance transactions. The UPIN-SCO agreements specify all payments under the agreements shall be made to the Primary Insurer whose address is listed as Boston, Massachusetts. See, e.g., D.E. at 63, 60. UPINSCO’s address is listed as St. Croix, U.S. Virgin Islands. See, e.g., D.E. at 46, 72. Payments under the UPINSCO agreements are to be made via drafts on a letter of credit issued by an Italian bank, as presented to the bank’s New York office. D.E. at 94. The UPS Re agreement provides that any “notice, report, order, request or other communication” shall be made to UPS Re in Hamilton, Bermuda and Atlanta, Georgia and to the Primary Insurer in New York, New York. D.E. at 112. The UPS Re agreement provides that UPS Re’s liability “shall attach simultaneously with that of the [Primary Insurer] ... [but] nothing herein shall in any manner create any obligation to or establish any rights against [UPS Re] by any third parties or any persons not parties to this Agreement.” D.E. at 107. The UPINSCO agreements contain a choice of venue provision for Massachusetts state courts, an arbitration clause in which arbitration is to take place in Boston, Massachusetts, mandates that the agreements “shall be governed by the law of the Commonwealth of Massachusetts,” requires service to UPIN-SCO in St. Croix and Atlanta, Georgia, and requires service to the Primary Insurer in Massachusetts. D.E. at 66, 67, 71, 77, 78. The UPS Re agreement provides for choice of venue and law in New York and mandates service to be given in the same manner as other notices under the agreement. D.E. at 111.

In sum, even assuming UPINSCO and UPS Re reinsured Indiana risks, there is no evidence in the record before us that the reinsurance transactions took place in the State of Indiana. Stated somewhat differently, none of the summary judgment materials presented to the Tax Court and in consequence nothing before this Court establishes that during the years in question UPINSCO and UPS Re were doing business within the State of Indiana. Because this is a necessary condition in order to be “subject to” the premium tax, UPS failed in its burden of establishing that it is entitled to summary judgment as a matter of law. Because we are definitely and firmly convinced the Tax Court’s determination to the contrary is in error, we reverse the grant of summary judgment in favor of UPS and remand this cause for further proceedings.

Conclusion

The judgment of the Tax Court is reversed and this cause remanded.

DICKSON, C.J., and SULLIVAN, DAVID and MASSA, JJ., concur.

      . More precisely Joint Comm, on Taxation, Present Law and Analysis Relating to the Tax Treatment of Reinsurance Transactions Between Affiliated Entities 2, 3 (July 12, 2010) [hereinafter Joint Comm. On Taxation Reinsurance Analysis ], available at http://www.jct. gov/publications.html?func=startdown&id= 3690.

      . Unless otherwise noted, the statutory language cited is that in effect during 2000 and 2001, the years at issue in this case.

      . Though the record is not entirely clear, it appears that the amended 2000 return also included other adjustments to UPS’s income. The only adjustments at issue here concern the exclusion of income from UPINSCO and UPS Re.

      . More particularly relevant portions of the statute provide:
      (a) Every insurance company not organized under the laws of this state, ... and doing business within this state shall, on or before March 1 of each year, report to the department [of insurance], under the oath of the president and secretary, the gross amount of all premiums received by it on policies of insurance covering risks within this state, or in the case of marine or transportation risks, on policies made, written, or renewed within this state during the twelve (12) month period ending on December 31 of the preceding calendar year. From the amount of gross premiums described in this subsection shall be deducted: (1) considerations received for reinsurance of risks within this state from companies authorized to transact an insurance business in this state....
      (c) (1) For the privilege of doing business in this state, every insurance company required to file the report provided in this section shall pay into the treasury of this state an amount equal to two percent (2%) of the excess, if any, of the gross premiums over the allowable deductions.
      I.C. § 27-1-18-2 (2000 supp.).

      . In relevant part the statute at issue in Crit-tenberger was much the same as it is today. It read:
      Every insurance company not organized under the laws of this state, and doing business therein, shall, in the months of January and July of each year, report to the auditor of state under oath of the president and secretary the gross amount of all receipts received in the state of Indiana on account of insurance premiums for the six months last preceding, ending on the last day of December and June of each year next preceding, and shall at the time of making such report pay into the treasury of the state the sum of three dollars on every one hundred dollars of such receipts, less losses actually paid within the state, and any such insurance company failing or refusing for more than thirty days to render an accurate [account] of its premium receipts as above provided and pay the required tax thereon shall forfeit one hundred dollars for each additional day such report and payment shall be delayed, to be recovered in an action in the name of the state of Indiana on the relation of the auditor of state in any court of competent jurisdiction, and it shall be the duty of the auditor of state to revoke all authority of any such defaulting company to do business within this state.
      Burns Ann. Ind. Statutes § 10216 (1914).

      . Accord Ind. Att’y Gen., Insurance Department: No authority for premium tax on reinsurance premiums. Reinsurance premiums no right to tax, 181, 184 (Apr. 12, 1938) (“[I]t is my opinion that the State of Indiana cannot collect a premium tax on reinsurance premiums, whether the company is authorized to do business in Indiana or not, so long as such companies, parties to the reinsurance agreement, are foreign insurance companies and the reinsurance contract is consummated beyond the borders of the state.”) (citing Conn. Gen. Life Ins. Co. v. Johnson, 303 U.S. 77, 58 S.Ct. 436, 82 L.Ed. 673 (1938)). See also Ind. Att'y Gen., Official Opinion No. 81, 313, 319 (Aug. 13, 1946) (concluding that because Indiana cannot tax reinsurance premiums and reinsurance losses are not paid within the state, reinsurance losses are not deductible by an insurer in computing premium tax due).

      . Indiana is not alone in concluding its premiums tax statute does not apply to reinsurance agreements. See Fletcher, supra n. 1. § 6966 at 414-15. See also, e.g., In re Cont'l Cos. Co., 189 Iowa 933, 179 N.W. 185, 189 (1920) (concluding that reinsurance of Iowa risks between New York insurance companies "was business done by these companies in the state of their domicile" and seeing "no fair reason for saying that such business should be deemed as constructively done in Iowa, or should be deemed as coming within the letter or spirit of our [premiums tax] statute”); People ex rel. Sea Ins. Co. v. Graves, 274 N.Y. 312, 8 N.E.2d 872, 874 (1937) (holding a reinsurance contract entered into in New Jersey but covering primary risks in New York constituted business done in New Jersey and was therefore not subject to New York premiums tax); Se. Fire Ins. Co. v. S.C. Tax Comm’n, 253 S.C. 407, 171 S.E.2d 355, 356 (1969) (recognizing "[t]here is certainly a difference between insurance and reinsurance” and determining a statute taxing "total premiums ... from insurance contracts” did not apply to reinsurance contracts).

      . The contract specifies the Primary Insurer shall copy all Bermuda notices to a UPS Re fax number with a 404 area code. 404 is the area code for Atlanta, Georgia.