author: BARNES, Judge.

text:
    Christine BANKS, Appellant, v. Timothy R. BANKS, Appellee.
    No. 45A03-1203-DR-96.
    Court of Appeals of Indiana.
    Dec. 14, 2012.

      Edward P. Grimmer, Austgen Kuiper & Associates, P.C., Crown Point, IN, Attorney for Appellant.
    Jennifer M. Campbell, Law Office of Weiss & Schmidgall, P.C., Merrillville, IN, Attorney for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Christine Banks appeals the trial court’s reduction of the amount of spousal maintenance she receives from her ex-husband, Timothy Banks. We affirm.

Issue

The dispositive issue we address is whether there is sufficient evidence to support the trial court’s modification of spousal maintenance.

Facts

Christine and Timothy’s divorce was finalized on September 5, 2000. The parties contested whether Timothy would be required to pay spousal maintenance to Christine because of her chronic kidney disease that had required a transplant and continuing dialysis. Timothy was diagnosed with Crohn’s disease during the marriage but was able to work full time at the time of dissolution, earning approximately $50,000 annually. Christine was not employed at the time of the divorce. The trial court determined that Christine was physically incapacitated and ordered Timothy to pay $500 per month to her as maintenance “until further Order of the Court.” App. p. 26.

Timothy filed motions to modify and reduce his maintenance obligation in 2002, 2003, and 2005. The trial court denied each of these motions. In response to the 2003 motion, the trial court found that Timothy’s request to reduce his maintenance obligation was “frivolous and baseless.... ”/A at BA.

On June 27, 2011, Timothy filed another motion to modify and reduce his maintenance obligation. The trial court held a hearing on the matter on November 30, 2011. The evidence indicated that on August 2, 2010, Timothy lost his job with Longhorn Steakhouse after exhausting all of his possible medical leave time under the Family and Medical Leave Act (“FMLA”), which he had used following surgery and a bowel resection because of his Crohn’s disease. The Indiana Department of Workforce Development subsequently found that Timothy was “[i]nvol-untarily unemployed due to a physical disability.” Ex. F. A physician who examined Timothy in connection with the unemployment proceedings did find that he could return to work as of August 16, 2010, “with reasonable accommodation.” Ex. E. However, as of September 2011, Timothy himself had no source of income, and he and his current wife had filed for Chapter 13 bankruptcy in May 2011. Between 2009 and 2010, Timothy and his current wife’s household income had dropped from $69,840 to $43,439. There also was evidence presented at the hearing that Christine earned $8,504 from part-time employment in 2010, whereas she was earning nothing in 2000 at the time of the divorce. Finally, Timothy’s attorney informed the trial court that he had applied for Social Security disability benefits, but no final resolution of that application had yet been reached.

On December 8, 2011, the trial court entered an order reducing Timothy’s maintenance obligation to $40 per week, or approximately $173.33 per month. The trial court did not note any change in Christine’s medical condition, but believed “that the parties’ present financial circumstances necessitate reduction of the spousal maintenance order herein.... ” App. p. 22. Christine now appeals.

Analysis

At the outset, we address Christine’s motion to strike material Timothy included in his appellee’s appendix. Specifically, Timothy has provided to this court a copy of a decision by the Social Security Administration (“SSA”), dated April 20, 2012, stating in part that Timothy has been disabled since April 1, 2010, for purposes of the Social Security Act. Timothy has requested that this court take judicial notice of the decision for purposes of this appeal, pursuant to Indiana Evidence Rule 201.

Indiana law currently is unclear on whether this court may judicially notice either the ultimate legal determination of the SSA regarding Timothy’s disability or the factual findings of the SSA administrative law judge regarding the extent of his illness. Obviously, the SSA’s decision was not yet in existence when the trial court ruled in this matter. Ordinarily, this court may not consider evidence outside the record presented to the trial court in resolving an appeal. In re D.Q., 745 N.E.2d 904, 906 n. 1 (Ind.Ct.App.2001).

Indiana Evidence Rule 201(f) does provide that “[j]udicial notice may be taken at any stage of the proceeding,” which includes appeals. CGC Enter, v. State Bd. of Tax Comm’rs, 714 N.E.2d 801, 803 (Ind.Ct.Tax 1999). On the other hand, judicial notice may not be used on appeal to fill evidentiary gaps in the trial record. Dollar Inn, Inc. v. Slone, 695 N.E.2d 185, 188 (Ind.Ct.App.1998), trans. denied; but see Matter of American Biomaterials Corp., 954 F.2d 919, 922 (3rd Cir.1992) (holding that an appellate court may “in a proper case take judicial notice of new developments not considered by the lower court”). Ultimately, although the SSA decision could be relevant to Timothy’s claims on appeal, our scrutiny of the record actually presented to the trial court leaves us with sufficient information to affirm its decision. We need not definitively resolve whether we could or should take judicial notice of the SSA decision. However, because Timothy presents a colorable basis for taking judicial notice of the SSA decision, we decline to order that the pages of his appendix containing the order be stricken.

We now turn to the merits of this appeal. Christine originally was awarded spousal maintenance on the basis of a physical incapacity that materially affected her ability to support herself, pursuant to Indiana Code Section 31-15-7-2(1). Petitions to modify such an award are governed by Indiana Code Section 31-15-7-3(1), which provides that the award “may be modified ... upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.” A spouse seeking modification of a maintenance award bears the burden of showing by a preponderance of the evidence the existence of changed circumstances so substantial and continuing as to make the terms unreasonable. Pala v. Loubser, 943 N.E.2d 400, 405 (Ind.Ct.App. 2011), trans. denied.

“A trial court has broad discretion to modify a spousal maintenance award, and we will reverse only upon an abuse of that discretion.” Id. Discretion is a privilege afforded trial courts to act according to what is fair and equitable under the facts of each case. Id. An abuse of discretion will be found if the trial court’s decision is clearly against the logic and effect of the facts or reasonable inferences to be drawn therefrom, if the trial court misinterprets the law, or if it disregards evidence of factors in a controlling statute. Mitchell v. Mitchell, 875 N.E.2d 320, 323 (Ind.Ct.App. 2007), trans. denied. We also note that the trial court entered some findings with its order modifying maintenance, but they were not requested by either party nor are they of the detail normally associated with formal findings and conclusions under Indiana Trial Rule 52(A). We characterize the trial court’s order as a general judgment with findings, which may be affirmed on any legal theory supported by the evidence. See In re Trust Created Under Last Will and Testament of Mitchell 788 N.E.2d 433, 435 (Ind.Ct.App.2003). We will neither reweigh the evidence nor judge the credibility of any witnesses. Id.

Christine vehemently argues that under Indiana law, an award of incapacity spousal maintenance cannot be modified or reduced unless there has been a showing that the incapacitated spouse’s health has improved, and there was no evidence that her health had improved since the time of the divorce. This position is incorrect. This court has held that when determining whether there has been a substantial change in circumstances justifying modification of a spousal maintenance award, a trial court should consider the factors underlying the original award; those factors include the financial resources of the party seeking to continue maintenance, the standard of living established in the marriage, and the ability of the spouse paying maintenance to meet his or her own needs. Mitchell, 875 N.E.2d at 323; Lowes v. Lowes, 650 N.E.2d 1171, 1174 (Ind.Ct.App. 1995).

In Mitchell, this court affirmed the reduction of an incapacity maintenance award from $400 per month to $250 per month where the only evidence presented was related to the receiving spouse’s increased income from other sources since the time of the divorce; there was no evidence regarding the receiving spouse’s health. Mitchell, 875 N.E.2d at 324. Likewise, in Lowes, this court held that it was proper to reduce (though not eliminate) an incapacity maintenance award based solely upon the obligor spouse’s loss of employer-sponsored health insurance coverage for the receiving spouse. Lowes, 650 N.E.2d at 1174-75. These cases clearly demonstrate that a change in financial condition of either the obligor or receiving spouse, or both, may warrant a modification and reduction of an incapacity maintenance award, without reference to the health of the receiving spouse. We would be loath to permit a reduction of a maintenance obligation where the evidence indicated the obligor spouse had reduced his or her income in order to evade the maintenance obligation, much as we do not permit a parent paying child support to become voluntarily unemployed or underemployed in order to obtain a reduction in support. See Carmichael v. Siegel, 754 N.E.2d 619, 625 (Ind.Ct.App.2001). But where the obligor spouse’s reduction in income or deterioration in financial condition is the result of factors beyond his or her control, he or she should not be forced to continue paying maintenance at a level based on a higher income or better financial condition. One cannot bleed a turnip.

In the present case it was not abuse of discretion for the trial court to modify and reduce Timothy’s spousal maintenance obligation to Christine on the basis of changes in the parties’ respective finances, even if there had been no improvement in Christine’s medical condition. And, despite Christine’s argument to the contrary, there was evidence that since the divorce Timothy’s financial situation had considerably weakened while Christine’s had slightly improved. Such evidence demonstrated the existence of changed circumstances so substantial and continuing as to make the terms of the original maintenance award unreasonable and subject to modification.

There was evidence presented that on April 2, 2010, Timothy underwent a bowel resection as a result of his Crohn’s disease. There also was evidence that Timothy exhausted all of his FMLA time at his place of employment during the spring and summer of 2010, leading to his termination in August 2010. The Indiana Department of Workforce Development found that Timothy was “[i]nvoluntarily unemployed due to a physical disability,” even though a physician stated that Timothy could return to work as of August 16, 2010, “with reasonable accommodation.” Exs. F, E. Timothy’s tax returns and May 2011 bankruptcy filing indicate that he and his current wife had household income of $69,840 in 2009, and $43,439 in 2010; of that 2010 figure, Timothy earned $30,035 and his current wife $13,404. Timothy also received approximately $7,000 in unemployment compensation in 2010. As of the time of the bankruptcy filing in May 2011, Timothy was unemployed and his current wife had earned a total income of $5,246.58. Timothy was still unemployed at the time of the November 2011 hearing. As for Christine, she had earned income in 2010 of $8,504 from working part-time. That certainly is not a lucrative income, but Christine was not earning any money at all from employment at the time of the divorce.

Regardless of the evidence regarding a drastic downturn in Timothy’s financial situation, Christine contends that he has been able to work in the past with his Crohn’s disease and that he essentially should be expected to continue working in the future as he had in the past. For us to agree with Christine, however, we would be required to reweigh the evidence before the trial court, which we cannot do. The evidence most favorable to the trial court’s ruling is that because of progression of Timothy’s Crohn’s disease, he cannot earn nearly the same income as he made at the time of the divorce. Moreover, Christine seems to contend that Timothy’s current situation is no different than it was the previous three to four times he attempted to reduce his spousal maintenance obligation. Again, given evidence of deterioration in Timothy’s health and resulting unemployment and bankruptcy, we cannot say he was precluded from filing the current modification petition and succeeding upon it. Finally, Christine’s current ability to earn approximately $8,500 yearly from employment, which was not present at the time of the divorce, represents income of over $700 per month, or more than Timothy had been paying in spousal maintenance.

The evidence here most favorable to the trial court’s ruling is that Timothy’s unemployment at the time of the hearing and drastic reduction in income was a result of factors beyond his control, namely, his own chronic illness. As such, we cannot say the trial court abused its discretion in reducing that obligation to $40 per week, or approximately $173.33 per month.

Conclusion

The trial court was permitted to modify and reduce Timothy’s spousal maintenance obligation to Christine solely upon the basis of evidence related to the parties’ respective finances and Timothy’s health, and that evidence justifies the reduction of Timothy’s obligation from $500 per month to $40 per week. We affirm.

Affirmed.

BAKER, J., and RILEY, J., concur.

      . In a 2007 order relating to emancipation of Christine and Timothy’s child, the trial court also stated that the $500 per month in spousal maintenance was to "remain in full force and effect.” App. p. 35. It is unclear, however, whether Timothy actually requested reduction of his maintenance obligation at that time.

      . Christine erroneously states in her brief that the obligation was reduced to $40 per month.

      . The spousal maintenance award in this case was the result of a court order, not an agreement of the parties. Thus, our supreme court’s holding in Voigt v. Voigt, 670 N.E.2d 1271 (Ind.1996), which addresses only agreed-upon maintenance awards, is inapplicable here.


source: Caselaw Access Project

author: MAY, Judge.

license: Public Domain

text:
    Patrick AUSTIN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 20A03-1112-CR-588.
    Court of Appeals of Indiana.
    Dec. 21, 2012.

      Adam Lenkowsky, Tasha Roberts, Roberts & Bishop, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Patrick Austin appeals his conviction of and sentence for two counts of possession of cocaine as Class A felonies. Austin argues: the trial court erred by denying his motion for discharge under Criminal Rule 4; the trial court abused its discretion by admitting contested evidence; the trial court abused its discretion by rejecting his tendered jury instruction regarding constructive possession; and the sentence assigned by the trial court was both an abuse of discretion and inappropriate based on Austin’s character and offenses. We affirm.

FACTS AND PROCEDURAL HISTORY

On April 28, 2011, State trooper Joseph White stopped Austin on the Indiana Toll Road. Austin was driving a semi-tractor and trailer, and Trooper White stopped Austin because he thought a trailer like Austin’s would normally be pulled by a pickup truck and not a semi-tractor. When Trooper White inspected Austin’s logbooks and shipping papers, he noted Austin had been off duty for the past seven days. That made Trooper White suspicious, because he believed truck drivers do not make money if they are not working. There were some errors in Austin’s paperwork, and although Austin said he was headed for a trailer parts store in Elkhart, Austin did not know the name and address of the store. Nor was Elk-hart listed as a destination in Austin’s logbooks.

Because of his suspicions, Trooper White called the El Paso Intelligence Center (EPIC) and learned Austin “had been involved in a bulk cash seizure” (Tr. at 17) in Michigan. Trooper White finished his inspection of Austin’s records, then asked for Austin’s consent to search the truck. Austin declined and Trooper White told Austin he was free to go.

Trooper White contacted a state police detective, who asked Trooper Mick Dock-ery to go to the Toll Road and wait for Austin’s vehicle. “Surveillance officers” (id. at 734) were following Austin and were in contact with Trooper Dockery. Trooper Dockery stopped Austin after he saw two traffic violations. He obtained Austin’s logbook and shipping documents, and noted Austin had not logged the prior stop by Trooper White; “therefore, his logbook was not current.” (Id. at 739.) He characterized Austin as “nervous,” {id.), and was concerned because a shipping document for a car Austin was hauling indicated the vehicle was not to be picked up until the following month. Austin’s bill of lading was handwritten, and typically such forms from “businesses that are conducting legitimate business” will be typed. {Id. at 742,) Austin’s truck had “a very high DOT number,” {id.), which could indicate the trucking company was new or could indicate “it could be a company that has been in trouble before; and they switch names now, they are carrying a new DOT number.” (Id. at 744.)

Trooper Dockery had a drug-sniffing dog with him, and the dog indicated it detected the odor of illegal drugs in Austin’s trailer. There were two cars inside the trailer, a Mercedes and a Rolls-Royce, and the police obtained a warrant to search them. They found a number of vacuum-sealed “bricks” in both cars, some of which were tested and found to be cocaine. Documents in the cars listed fictitious names for the owner of the Mercedes and the lessor of the Rolls-Royce. GPS data from the Rolls-Royce showed that car and Austin had been at the same hotel on a number of occasions and that the Rolls-Royce had been at Austin’s residence in March of 2011.

The State charged Austin with two counts of Class A felony dealing in cocaine. On June 6, 2011, Austin asked for a speedy trial, so the seventy-day period during which the State was obliged to bring him to trial ended August 15, 2011. His case was set for trial August 8, but on July 27 the State moved to continue the trial due to court congestion. The trial court granted the motion and rescheduled Austin’s trial to September 26. On August 17, Austin filed a motion for discharge, which the trial court denied.

The congestion on which the trial court premised its continuance from August 8 to September 26 was a trial for another incarcerated criminal defendant, Harmon, whose case was older than Austin’s. Harmon had also asked for a speedy trial, but his request was made later than was Austin’s.

Austin’s trial commenced September 26, and he was found guilty of both Class A felony counts. He was sentenced to forty years on each count, to be served concurrently.

DISCUSSION AND DECISION

1. Speedy Trial

The right of an accused to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and by Article I, Section 12 of the Indiana Constitution. Otte v. State, 967 N.E.2d 540, 544-5 (Ind.Ct.App.2012), trans. denied. Indiana Criminal Rule 4 implements the defendant’s speedy trial right. Id. at 545. Rule 4(B)(1) provides:

If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar. Provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as set forth in subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time.

The Rule requires that, on a motion for a speedy trial, a defendant must be tried within seventy days unless the defendant caused the delay or the court’s calendar is congested. Otte, 967 N.E.2d at 545. Austin asked for a speedy trial on June 6, 2011, and the seventy-day period ended August 15. Austin was not tried until September 26.

Criminal Rule 4(D) provides:
If when application is made for discharge of a defendant under this rule, the court be satisfied that there is evidence for the state, which cannot then be had, that reasonable effort has been made to procure the same and there is just ground to believe that such evidence can be had within ninety (90) days, the cause may be continued, and the prisoner remanded or admitted to bail; and if he be not brought to trial by the state within such additional ninety (90) days, he shall then be discharged.

A trial court may grant the State a continuance when it is satisfied that (1) there is evidence for the State that cannot then be had; (2) reasonable effort has been made by the State to procure the evidence; and (3) there is just ground to believe that such evidence can be had within ninety days. Otte, 967 N.E.2d at 545. Any exigent circumstances may warrant a reasonable delay beyond the limitations of Criminal Rule 4. Id. The reasonableness of such delay must be judged in the context of the particular case. Id.

In reviewing Criminal Rule 4 appeals, we review the trial court’s legal conclusions de novo but exercise deference with respect to its factual findings. Id. A trial court’s finding of congestion is presumed valid. Wilkins v. State, 901 N.E.2d 535, 537 (Ind.Ct.App.2009), trans. denied. A defendant challenging that finding must demonstrate that, at the time it was made, the finding was factually or legally inaccurate. Id. The trial court’s explanations are accorded reasonable deference, and we will not grant relief unless a defendant establishes the finding of congestion was clearly erroneous. Id. The reasonableness of the trial court’s finding of congestion is judged in the context of the particular circumstances of the case. Id.

When an incarcerated defendant asks for a speedy trial, Criminal Rule 4(B) requires “particularized priority treatment.” Clark v. State, 659 N.E.2d 548, 551-52 (Ind.1995). That means a meaningful trial date must be set within the time prescribed by the rule; if necessary, the trial must take priority over trial dates previously designated for civil cases and even criminal cases in which Criminal Rule 4 deadlines are not imminent. Id.

The court congestion on which the trial court premised its continuance from August 8 to September 26 was a trial for an incarcerated criminal defendant, Harmon, whose case was older than Austin’s. The Harmon trial began August 8, a Monday, and lasted three days. Austin argues he could have been tried on August 15, the last day in the seventy-day period.

The trial court did not abuse its discretion in continuing Austin’s trial. In Gill v. State, 267 Ind. 160, 368 N.E.2d 1159 (1977), the trial calendar was full when Gill made his early trial motion, and the court could accommodate no further settings. Gill contended that calendar did not show “congestion” within the meaning of that term in the rule, because it was made up of a mixture of civil and criminal settings. Gill noted civil settings must give way to criminal settings as required by our speedy trial rule.

In Gill, as in the case before us, there was congestion because “the continuance of civil cases set for trial during the seventy day period would not necessarily have accommodated the trial of [Gill’s] case.” Id. at 165, 368 N.E.2d at 1162. The continuance of civil matters would not guarantee a courtroom and jury for Gill’s trial, so “it was not necessary for the trial judge to set off previously scheduled civil matters at the time of his ruling on February 2, in response to the motion for early trial.” Id.

Nor would the continuance of a civil trial have accommodated Austin’s trial on the 15th. At a hearing on his motion for discharge, Austin told the trial court “[o]n August 15th Mr. Austin could have been tried in this courtroom. That is the basis for the motion for discharge.” (Tr. at 235.) The trial court responded that there was a contested child custody and support hearing scheduled that day and it took place that day. No jury had been called to hear a jury trial the week of the August 15, and the court was not prepared to hear a jury trial. The State noted it could not subpoena witnesses, some of whom were out-of-state, on such short notice. The trial court did not err in denying Austin’s motion for discharge.

2. Admission of Evidence

The admission or exclusion of evidence rests within the sound discretion of the trial court, and we review for an abuse of discretion. Conley v. State, 972 N.E.2d 864, 871 (Ind.2012), reh’g denied. An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before it, id., and the decision will not be disturbed absent a requisite showing of abuse. Id.

We review de novo a ruling on the constitutionality of a search or seizure. Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008). However, we give deference to a trial court’s determination of the facts, which will not be overturned unless clearly erroneous. Id. Thus, we do not reweigh evidence, but consider conflicting evidence most favorably to the trial court’s ruling. Id.

Austin appears to argue the cocaine seized from him should not have been admitted because police should not have stopped him a second time after they released him from the initial stop. Article I, Section 11 of the Indiana constitution provides “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated.... ” The purpose of this article is to protect from unreasonable police activity those areas of life that Hoosiers regard as private. State v. Quirk, 842 N.E.2d 334, 339^40 (Ind.2006). The provision must receive a liberal construction in its application to guarantee the people against unreasonable search and seizure. Id. at 340. In resolving challenges asserting a Section 11 violation, courts must consider the circumstances presented in each case to determine whether the police behavior was reasonable. Id. The burden is on the State to show that under the totality of the circumstances its intrusion was reasonable. Id. Thus, we must determine whether Austin’s detention in order to conduct a dog sniff of his truck was reasonable under the totality of the circumstances.

The totality of the circumstances requires consideration of both the degree of intrusion into the subject’s ordinary activities and the basis on which the officer selected the subject of the search or seizure. Holder v. State, 847 N.E.2d 930, 940 (Ind.2006). Our determination of the reasonableness of a search or seizure under Section 11 often turns on a balance of: 1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of the search or seizure imposes on the citizen’s ordinary activities, and 3) the extent of law enforcement needs. Id.

We cannot find error in the trial court’s determination the stop and search was reasonable. Trooper Dockery saw Austin commit two traffic violations. He knew about the irregularities in Austin’s paperwork Trooper White had noted, and he noted some additional irregularities in Austin’s logbooks and bills of lading. The traffic stop was not unduly prolonged before the officers established probable cause to seek a warrant; the police dog that indicated the presence of di’ugs was with Trooper Dockery at the time of the stop. Cf. Quirk, 842 N.E.2d at 339 (search improper when, after first stop, police stopped Quirk a second time at an interstate rest area and told him that although he was free to leave, his truck would have to remain, and drug-sniffing dog did not arrive for twenty minutes). We cannot find Austin’s second stop unreasonable.

Austin next argues the trial court should not have admitted evidence he had control over the Rolls-Royce on several occasions before he was arrested, because the admission of that evidence violated Ind. Evidence Rule 404(b). That rule provides in part: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

In deciding whether to admit Rule 404(b) evidence, a trial court must (1) determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant’s propensity to commit the charged act and (2) balance the probative value of the evidence against its prejudicial effect pursuant to Indiana Evidence Rule 403. Freed v. State, 954 N.E.2d 526, 530 (Ind.Ct.App.2011). Rule 403 provides in part that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” The trial court is afforded wide latitude in weighing probative value against prejudice under Rule 403. Freed, 954 N.E.2d at 531. We will reverse the court’s evaluation and decision to admit or exclude only on a showing of an abuse of discretion. Id.

Austin does not explicitly argue the evidence was irrelevant or prejudicial. Instead, he points to and distinguishes United States v. Lazcano-Villalobos, 175 F.3d 838 (10th Cir.1999). Lazcano-Villalobos had a prior arrest for possession of marijuana. When he was arrested he was driving a vehicle registered to him and altered with secret compartments in the rear bumper. The government wanted to introduce evidence of the arrest and guilty plea to show his knowledge of concealed compartments for the purpose of transporting controlled substances. The Tenth Circuit found evidence concerning his prior arrest “implicates his knowledge of the hidden compartment in the instant case because it shows he previously owned a car in which he concealed contraband in a hidden compartment.” Id. at 846. Because the government offered the Rule 404(b) evidence for the proper purpose of showing Lazcano-Villalobos’ knowledge of the contraband and the evidence was relevant to show such knowledge, the district court did not abuse its discretion in allowing its admission. Id.

Austin argues Lazcano-Villalobos is distinguishable because the evidence he had prior possession of the Rolls-Royce indicated only that he stored, used, or transported it on prior occasions. “What was missing was the link to his knowledge of the secret compartment or the cocaine inside of the vehicle on previous occasions.” (Br. of Appellant at 18.) There need not be any such link.

The State argues the challenged evidence was relevant to show Austin’s control over the vehicle, which control would be “a factor establishing constructive possession.” (Br. of Appellee at 22.) Austin offers no authority to support his apparent premise that to be relevant for Rule 404(b) purposes, a specific piece of evidence must have a tendency to make the existence of more than one fact more or less probable than it would be without the evidence, and we decline to so hold. The challenged evidence had at least minimal relevance to the question of Austin’s control of the Rolls-Royce, and it was not inadmissible just because it did not further tend to prove some additional fact, ie., his knowledge there was a secret compartment with cocaine inside. We cannot find an abuse of discretion in the admission of evidence Austin had used, stored, or transported the Rolls-Royce in the past.

3. Jury Instruction

The manner in which a trial court instructs a jury is largely within its sound discretion, and we review a decision regarding instructions only for an abuse of that discretion. Washington v. State, 973 N.E.2d 91, 93 (Ind.Ct.App.2012). When reviewing a decision not to give a defendant’s tendered jury instruction, we consider: (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions that are given. Id.

Police found cocaine in a secret compartment in the Mercedes, and in a suitcase in the trunk of the Rolls-Royce. Austin did not have a key to the trunk. He asked the court to instruct the jury that:

While possession of cocaine found in a secret compartment of an automobile trailer may be imputed to a truck driver hauling the automobiles under the theory of constructive possession where the driver’s possession is not exclusive, there must be proof of additional circumstances pointing to his knowledge of the drugs and their presence in the automobiles. Being the driver of a truck carrying automobiles where drugs are found is not enough to support the inference that the Defendant maintained dominion and control over the drugs. Constructive possession will support a possession conviction if the State shows that the Defendant had both the capability and the intent to maintain dominion and control over the drugs.
Where a person’s control is non-exclusive, intent to maintain dominion and control may be inferred from additional circumstances that indicate that the person knew of the presence of the contraband.

(App. at 143.)

The trial court instead instructed the jury that possession may be actual or constructive, and that a person who is not in actual possession but “knowingly has both the power and the intention at any time to exercise control over a thing ... is then in constructive possession of it.” (Tr. at 1619.) It also instructed the jury that “Knowledge or intent may be inferred from the facts and circumstances proved in each case.” (App. at 144.)

Austin is correct that in hidden compartment cases, knowledge may not be inferred solely from the defendant’s control of the vehicle in which the contraband is hidden. To establish intent, additional evidence is required that demonstrates guilty knowledge. Whitney v. State, 726 N.E.2d 823, 826 (Ind.Ct.App.2000). Austin’s jury was not instructed that his knowledge could be inferred solely from his control of the vehicle.

Instead, the jury was instructed that constructive possession could be found only if Austin “knowingly has both the power and the intention at any time to exercise control over a thing,” (Tr. at 1619), and the only “thing” whose constructive possession was at issue was the cocaine. As the trial court’s instruction could not have permitted the jury to find the “mere presence” of drugs was enough to show Austin’s constructive possession, the jury was not, as Austin asserts, “left to speculate that his control over the Rolls-Royce and Mercedes Benz made him guilty.” (Reply Br. of Appellant at 7.) We cannot find an abuse of discretion in the jury instructions.

4. Sentencing

A person who commits a Class A felony shall be imprisoned for a fixed term of between twenty and fifty years, with the advisory sentence being thirty years. Ind. Code § 35-50-2-4. Austin was convicted of two Class A felonies and sentenced to forty years for each count, to be served concurrently.

Sentencing is principally a discretionary function in which the trial court’s judgment should receive considerable deference. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.2008). A trial court may impose any sentence within the allowable range for a given crime without a requirement to identify specific aggravating or mitigating circumstances. Id. The trial court must enter a statement including reasonably detailed reasons or circumstances for imposing a particular sentence. Id. The reasons given, and the omission of reasons arguably supported by the record, are renewable on appeal for abuse of discretion. Id. The relative weight or value assignable to reasons properly found, or those which should have been found, is not subject to review for abuse. Id.

Appellate review of the merits of a sentence may be sought on the grounds outlined in Appellate Rule 7(B), ie., the sentence is “inappropriate in light of the nature of the offense and the character of the offender.” Id. Our review is focused on the aggregate sentence, not whether the sentence is consecutive or concurrent, the number of counts, or the length of the sentence on any individual count. Id. at 1225.

The sentencing court found as aggrava-tors that Austin had been convicted of armed robbery in 1987; had been arrested twice on firearms charges, but not convicted; had about ninety pounds of cocaine in his possession when he was arrested; and had been stopped in Michigan in 2009 with over a million dollars in cash in his possession. It acknowledged Austin’s “laudable” employment history, (App. at 168), and that his conviction would cause his family financial hardship.

Austin first argues the trial court improperly relied on facts that had not been proven, specifically the amount of money involved in the bulk cash seizure in 2009 and the amount of cocaine police seized. As those facts were included in the presentence report and Austin admitted the presentenee report was correct, we find no error.

In Davis v. State, 892 N.E.2d 156 (Ind. Ct.App.2008), Davis claimed her presen-tenee investigation report should not have been used because it included a probation officer’s hearsay testimony. We first noted the rules of evidence, other than those regarding privilege, do not apply to sentencing hearings. Id. at 164 (citing Ind. Evidence Rule 101(c)(2)). We next noted Indiana law requires the trial court to use presentence reports in its sentencing consideration. Id. (citing Ind.Code § 35-38-l-8(a)). Davis had said the only statement in the report with which she did not agree was that of a probation officer who said Davis showed little remorse, but Davis did not subpoena the probation officer to appear at the sentencing hearing or conduct any other discovery. We found the trial court did not err in admitting the report at the sentencing hearing. Id. at 164.

Austin told the sentencing court he had reviewed the presentence report and it was accurate. The information in the report supported the aggravators the trial court found. Austin’s sentence was not an abuse of discretion on that ground.

Nor can we find Austin’s sentence inappropriate. Our authority to revise an otherwise proper criminal sentence is governed by Ind. Appellate Rule 7(B): “The Court may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” When a defendant requests appellate review and revision of a criminal sentence, an appellate court has the power to affirm, reduce, or increase the sentence. Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010).

When determining whether a sentence is inappropriate, we recognize the advisory sentence is the starting point the Legislature has selected as an appropriate sentence for the crime committed. Peters v. State, 959 N.E.2d 347, 356 (Ind.Ct.App. 2011). We must examine both the nature of the offense and the defendant’s character. Id. When conducting this inquiry, we may look to any factors appearing in the record. Id.

Austin was caught transporting cocaine worth over four million dollars. He had a prior felony conviction and two firearms-related arrests, and had previously been found with one million dollars in cash, which police seized. We cannot find his sentence inappropriate.

We accordingly affirm Austin’s convictions and sentence.

Affirmed.

NAJAM, J., and KIRSCH, J., concur.

      . Ind.Code§ 35-48-4-1.

      . The State does not argue it was illegal to use a semi-tractor to pull Austin’s trailer.

      . The record does not reflect Austin had been charged with any crime in connection with the seizure.

      .He testified Austin did not "signal for a full 300 feet" before making a lane change, and was following the vehicle ahead of him by less than 300 feet, which was "too closely.” (Tr. at 736.)

      . According to Austin’s statement of the facts, the only vehicle with a secret compartment containing cocaine was the Mercedes, not the Rolls-Royce.


author: VAIDIK, Judge.

text:
    Medea WOODS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 39A05-1204-CR-189.
    Court of Appeals of Indiana.
    Dec. 27, 2012.

      Jackie M. Bennett, Jr., Michele L. Rich-ey, Taft Stettinius & Hollister, LLP, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Medea Woods appeals the trial court’s denial of her partial motion to dismiss. She contends that some of the charged crimes for health-care billing fraud fall outside of the statute of limitations, the State fails to provide sufficient facts in the charging information to allege the concealment exception, and the crimes do not constitute a continuing wrong. Because this is an interlocutory appeal from a motion to dismiss, the State must only allege sufficient facts in the charging information that the charged crimes were committed within the statute of limitations. However, we disagree with Reeves v. State, 938 N.E.2d 10, 15-16 and.Ct.App.2010), reh’g denied, trans. denied, and hold that the probable-cause affidavit can be considered in addition to the charging information to determine whether the State has alleged sufficient facts to place the charged crimes within the statute of limitations. We find that the State has alleged sufficient facts when the charging information and probable-cause affidavit are considered together and therefore affirm.

Facts and Procedural History

Woods is a licensed clinical psychologist who was a Medicaid provider in Indiana between 2002 and 2007. The Medicaid provider agreement required Woods to maintain records to support the claims she filed and to make those records available for review and audit. Appellant’s App. p. 14-15. It also required Woods to return any erroneous payment she received within fifteen days. State’s Ex. 1. In order to bill Medicaid for payment, Woods had to follow the State’s procedures for submitting claims, including using Recipient Identification Numbers and procedure codes to bill for services rendered. Appellant’s App. p. 15. Submitted claims were presumed valid unless it was shown otherwise. Tr. p. 57-58.

■ In March 2006, the government’s Medicaid billing auditor, Health Care Excel, began investigating Woods’s submissions due to “an unusually high level of billing compared to other mental health care providers in her area.” Appellant’s App. p. 15. An onsite audit of Woods’s files was conducted in May 2006, and Woods was unable to produce fifteen of the forty-one files requested for review. Health Care Excel found several billing concerns and violations, and as a result, Woods was put on pre-payment review, meaning that Woods’s claims were subject to heightened scrutiny before payment. Id. at 16.

In August 2006, the audit information was given to the Indiana Medicaid Fraud Control Unit, and the case was assigned to Investigator Diane Hedges. Hedges conducted her own investigation by reviewing Woods’s billing submissions and interviewing patients and/or their parent or guardian as well as Woods herself. After her investigation, Hedges concluded that Woods had fraudulently billed Medicaid by submitting illegitimate claims along with legitimate claims using her patients’ Recipient Identification Numbers from 2002 to 2007.

On March 17, 2007, Woods voluntarily terminated her Medicaid provider agreement with the State. Later in 2007, she moved to Wyoming. Meanwhile, Hedges’s investigation continued, and in December 2007, she contacted the Office of the Inspector General, which joined her in the on-going investigation. On August 1, 2008, Hedges presented her case to the United States Attorney’s Office for review of possible criminal charges. In March 2009, Hedges found Woods in Rawlins, Wyoming, and she and Special Agent Shelia Green interviewed Woods, who said that she had been under financial pressure and had a “readiness to make a mistake” in her favor when she submitted her Medicaid claims. Tr. p. 23. Hedges completed her investigation in May 2008, and the calculated value of loss was determined to be in excess of $350,000.

On November 9, 2009, a federal grand jury indicted Woods with health-care fraud for the fraudulent Medicaid claims she submitted between 2002 and 2007. The federal charges were dismissed on July 12, 2010. The State filed its own charges against Woods on February 9, 2011, for several counts of health-care billing fraud for the same activity between 2002 and 2007. Woods moved for a partial dismissal of the charges on the basis that any charged activities before February 9, 2006, were barred by the five-year statute of limitations. Following a hearing, the trial court denied the motion. Woods asked the trial court to certify its order on the partial motion to dismiss for interlocutory appeal, which the trial court granted. This Court accepted jurisdiction over the interlocutory appeal on May 18, 2012.

Discussion and Decision

Woods contends that the trial court erred by denying her partial motion to dismiss the charges against her because: (1) the information and probable-cause affidavit failed to provide sufficient information to allow the application of the concealment exception; (2) the charges based on activities before February 9, 2006, are time-barred under the five-year statute of limitations; and (3) the offenses charged constitute discrete, individual claims instead of a continuing wrong. Because this is an interlocutory appeal of a motion to dismiss, however, we review only the first issue. The State must only make sufficient allegations in the charging information that the alleged crimes fall within the statute of limitations; whether the State has actually met its burden of proving that the alleged crimes fall within the statute of limitations is a question for trial. Reeves v. State, 938 N.E.2d 10,15-16 (Ind.Ct.App. 2010), reh’g denied, trans. denied.

When reviewing a trial court’s ruling on a motion to dismiss, we use an abuse of discretion standard. Id. at 14. We will only reverse if the trial court’s decision is clearly against the logic and effect of the facts and circumstances. Id. Indiana Code section 35 — 41—4—2(h)(2) allows tolling of the statute of limitations to serve “the State’s interest of ensuring that it can later prosecute a criminal suspect even if, for a time, he conceals evidence of the offense such that authorities are unaware and unable to determine that a crime has been committed.” Id. at 17 (quoting Kifer v. State, 740 N.E.2d 586, 588 (Ind.Ct.App.2000) (quotation omitted)). As this Court explicitly held in Reeves, the State must “plead the circumstances of the concealment exception in the charging information,” id. at 17 (emphasis added), and that pleading must contain sufficient facts so that the “defendant is apprised of the facts upon which the State intends to rely on and may be prepared to meet that proof at trial.” Willner v. State, 602 N.E.2d 507, 509 (Ind.1992). Additionally, the charging information must also state “the date of the offense with sufficient particularity to show that the offense was committed within the period of limitations applicable to that offense.” Ind.Code § 35 — 34—1—2(a)(5).

Our Supreme Court examined a related charging information requirement in a similar context when determining whether the charging information sufficiently stated the alleged offense in Patterson v. State, 495 N.E.2d 714, 719 (Ind.1986). Indiana Code section 85-34-l-2(a)(4) states that the charging information must “set[ ] forth the nature and elements of the offense charged in plain and concise language without unnecessary repetition.” In Patterson, the charging information alleging murder did not set forth the manner of death, rendering it insufficient under Subsection (a)(4). Our Supreme Court held, however, that while the charging information did not contain sufficient factual detail of the alleged offense, the probable-cause affidavit that supported the charging information did contain the necessary details to apprise Patterson of the charges against her. Since Patterson was made aware of the charges against her by virtue of the two documents viewed together, her substantial rights were not prejudiced by the deficiency in the charging information. Patterson, 495 N.E.2d at 719.

Indiana Code section 35-34-1-2 as a whole sets forth the required contents of the charging information, the overarching purpose of which is to give the defendant particular notice of the crimes with which she is charged during the applicable statute of limitations period so that she can prepare an appropriate defense. See Bei Bei Shuai v. State, 966 N.E.2d 619, 626 (Ind.Ct.App.2012), trans. denied; Reeves, 938 N.E.2d at 16. If the probable-cause affidavit can be used to supplement the charging information in Patterson where the offense was not alleged with sufficient detail — charging information is insufficient under Indiana Code section 35-34-1-2(a)(4) — we see no reason why the same cannot be true in a case where the concealment exception has not been alleged with sufficient detail to place the charged crimes within the applicable statute of limitations — charging information is insufficient under Indiana Code section 35-34-1-2(a)(5). As long as the defendant is given enough information and notice to prepare an appropriate defense and does not have any of her substantial rights prejudiced, we see no reason why the probable-cause affidavit should not be considered in the analysis.

Since the charging information and probable-cause affidavit are filed together, they should be viewed in tandem to determine if they satisfy the goal of putting the defendant on notice of the crimes with which she is charged during the applicable statute of limitations period so that she can prepare an appropriate defense. We therefore disagree with the holding in Reeves that we must look only to the charging information in this case, as that would hinder the true intent behind charging informations, Indiana Code section 35-34-1-2, and Patterson.

Here, the charging information and probable-cause affidavit taken together provided both sufficient facts to allege concealment and apprise Woods that the State was going to argue that theory at trial. The charging information alleges that Woods “did knowingly or intentionally conceal information, to wit: that not all services claimed for her Medicaid patients were actually rendered,” and “did knowingly or intentionally use the identifying information, to wit: the Medicaid Recipient Identification Number (“RID”) of many of her Medicaid patients, without their consent, with the intent to harm or defraud another person.” Appellant’s App. p. 12. Additionally, the probable-cause affidavit gave further detail as to how Woods filed fraudulent claims; specifically, that Woods filed illegitimate claims along with legitimate claims for many patients using their unique RID numbers. Id. at 15, 17-18. In particular, the State’s claim is that Woods concealed her crime by hiding illegitimate Medicaid claims within a sea of legitimate claims, using patients’ RID numbers on the illegitimate claims to make it appear that those claims were also legitimate.

Further, the probable-cause affidavit indicated that the evidence that Woods was submitting fraudulent claims was not known until March 2006 when Health Care Excel conducted an audit of her practice due to unusually high billing levels. Id. at 15. Since February 9, 2011, when the charges were filed, is within five years of March 2006, these facts are sufficient to allege concealment and that the crimes charged were committed within the applicable statute of limitations.

We find that when viewing the charging information and probable-cause affidavit together, the State has sufficiently alleged concealment to put Woods on notice that the State will argue that theory at trial. Proving concealment and therefore that the crimes charged fell within the applicable statute of limitations are questions that the State has the burden of proving at trial, not at this point of the proceedings. We therefore affirm the trial court’s denial of Woods’s partial motion to dismiss.

Affirmed.

MATHIAS, J., and BARNES, J., concur.

      . Woods argues that we should use a de novo standard of review because this is a case of statutory interpretation. Appellant’s Br. p. 5. However, we review a motion to dismiss a criminal charge under the statute of limitations for an abuse of discretion. State v. Lindsay, 862 N.E.2d 314, 317 (Ind.Ct.App. 2007), trans. denied. Further, Woods does not make a statutory interpretation argument; rather, she argues that the facts do not support the concealment exception. But, even if we were to use the de novo standard of review, the outcome would be the same.

      . We recognize that our Supreme Court has noted that the "evidence of the offense” language of the concealment exception articulated at Indiana Code section 35 — 41—4—2(h)(2) may apply to “concealment of any evidence, including evidence of guilt, and thus would toll the statute of limitations in any crime in which a defendant tries to avoid apprehension.” Sloan v. State, 947 N.E.2d 917, 922 n. 8 (Ind.2011). However, we agree with the holding in Kifer, 740 N.E.2d at 588-89, that interpreting "evidence of the offense” to include any evidence, including evidence of guilt, would allow the exception to swallow the rule, tolling the statute of limitations in "nearly all crimes in which a defendant attempts to avoid apprehension.” Id. at 589.


text:
    In the Matter of Thomas N. NUTTLE, Respondent.
    No. 20S00-1112-DI-698.
    Supreme Court of Indiana.
    Jan. 10, 2013.
   PUBLISHED ORDER CONVERTING SUSPENSION FOR NONCOOPERATION WITH THE DISCIPLINARY PROCESS TO INDEFINITE SUSPENSION

On March 15, 2012, 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. The Disciplinary Commission has now moved to convert Respondent’s suspension to an indefinite suspension from the practice of law pursuant to Admission and Discipline Rule 23(10)(f)(4). Respondent has not responded to the Commission’s motion to convert the current suspension.

The Court finds that more than six months have passed since Respondent was suspended due to noncooperation with the disciplinary process. Accordingly, the Court concludes that Respondent’s suspension should be converted to an indefinite suspension from the practice of law pursuant to Admission and Discipline Rule 23(10)ffi(4).

IT IS THEREFORE ORDERED that Respondent’s current suspension from the practice of law for failure to cooperate with the disciplinary process is converted to an indefinite suspension, effective immediately. Respondent is ordered to fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26). To be readmitted to the practice of law in this State, Respondent must cure the causes of all suspensions in effect and successfully petition this Court for reinstatement pursuant to Admission and Discipline Rule 23(4) and (18).

The Clerk of this Court is directed to forward notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys; 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 Diamond Z. HIRSCHAUER, Respondent.
    No. 49S00-1201-DI-24.
    Supreme Court of Indiana.
    Jan. 10, 2013.
   PUBLISHED ORDER CONVERTING SUSPENSION FOR NONCOOPERATION WITH THE DISCIPLIN- . ARY PROCESS TO INDEFINITE SUSPENSION

On March 15, 2012, 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. The Disciplinary Commission has now moved to convert Respondent’s suspension to an indefinite suspension from the practice of law pursuant to Admission and Discipline Rule 23(10)(f)(4). Respondent has not responded to the Commission’s motion to convert the current suspension.

The Court finds that more than six months have passed since Respondent was suspended due to noncooperation with the disciplinary process. Accordingly, the Court concludes that Respondent’s suspension should be converted to an indefinite suspension from the practice of law pursuant to Admission and Discipline Rule 23(10)CO(4).

IT IS THEREFORE ORDERED that Respondent’s current suspension from the practice of law for failure to cooperate with the disciplinary process is converted to an indefinite suspension, effective immediately. Respondent is ordered to fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26). To be readmitted to the practice of law in this State, Respondent must cure the causes of all suspensions in effect and successfully petition this Court for reinstatement pursuant to Admission and Discipline Rule 23(4) and (18).

The Clerk of this Court is directed to forward notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys; 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 Jon A. CRISS, Respondent.
    No. 71S00-1209-DI-521.
    Supreme Court of Indiana.
    Jan. 10, 2013.
   PUBLISHED ORDER OF INTERIM SUSPENSION UPON NOTICE OF GUILTY FINDING

The Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(ll.l)(a), has filed 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: possession of methamphetamine, a class D felony; and maintaining a common nuisance, a class D felony.

IT IS THEREFORE ORDERED that Respondent is suspended pendente lite from the practice of law in this State, effective immediately. Respondent is already under suspension for continuing legal education noncompliance. Respondent is ordered to fulfill the continuing 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 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 William E. DITTRICH, Respondent.
    No. 64S00-1206-DI-367.
    Supreme Court of Indiana.
    Jan. 10, 2013.
   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: Respondent admits to four counts of misconduct occurring from 2008 through 2010. The misconduct includes neglecting clients’ cases, failing to do the work for which he was hired, failing to respond to clients’ requests for information, failing to inform clients of the status of their cases, failing to safeguard unearned fees by placing them in a trust account, and failing to completely refund unearned fees. Respondent knew he was suffering from depression and other health related issues that interfered with his ability to attend to his clients’ needs

The parties cite no facts in aggravation. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent was cooperative with the Commission; (3) at the time of his misconduct, Respondent was under emotional stress and depression, caused in part by the illness of his young daughter, for which he voluntarily sought the assistance of the Indiana Judges and Lawyers Assistance Program; (4) after the verified complaint was filed, Respondent made full refunds of unearned fees to all clients affected by his misconduct.

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(a)(4): Failure to comply promptly with a client’s reasonable requests for information.
1.15(a): Failure to safeguard property of a client.
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.
1.16(d): Failure to refund an unearned fee promptly upon termination of representation.
3.2: Failure to expedite litigation consistent with the interests of a client.

Discipline: The parties propose the appropriate discipline is a 90-day suspension with automatic reinstatement. The Court, having considered the submissions of the parties, now approves the agreed discipline.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 90 days, beginning February 15, 2013. 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). At the conclusion of the period of suspension, provided there are no other suspensions then in effect, Respondent shall be automatically reinstated to the practice of law, subject to the conditions of Admission and Discipline Rule 23(4)(c).

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 Olubunmi O. OKANLAMI, Respondent.
    No. 71S00-1108-DI-522.
    Supreme Court of Indiana.
    Jan. 10, 2013.
   PUBLISHED ORDER ACCEPTING RESIGNATION AND CONCLUDING PROCEEDING

A “Verified Complaint for Disciplinary Action” against Respondent was filed on August 8, 2012. Respondent has now 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 allegations 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 costs of this proceeding are assessed against Respondent. With the ac-ceptanee of this resignation, 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 Maria E. MUSE, Respondent.
    No. 49S00-1208-DI-454.
    Supreme Court of Indiana.
    Jan. 11, 2013.
   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:

Procedural Background: On August 13, 2012, the Commission filed a “Notice of Guilty Finding and Request for Suspension,” seeking interim suspension under Ind. Admission and Discipline Rule 23(ll.l)(a) for being found guilty of a crime punishable as a felony. The Commission filed a verified complaint on December 6, 2012, and the parties tendered their conditional agreement on the same date.

Stipulated Facts: On April 10, 2012, Respondent entered a guilty plea to one count of possession of marijuana, a class D felony. The State agreed to alternative misdemeanor sentencing. She was sentenced to 365 days, with four days served and the balance suspended. The parties cite no facts in aggravation. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent was cooperative with the Commission; and (3) Respondent executed a voluntary monitoring agreement with the Indiana Judges and Lawyers Assistance Program (“JLAP”) on November 5, 2012.

Violation: The parties agree that Respondent violated Indiana Professional Conduct Rule 8.4(b), which prohibits committing a criminal act that reflects adversely on 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 180 days, beginning February 15, 2013, with 30 days actively served and the remainder stayed subject to completion of at least two years of probation. The Court incorporates by reference the terms and conditions of probation set forth in the parties’ Conditional Agreement, which include:

(1) Respondent shall maintain complete abstinence from mind-altering drugs during her probation.
(2) Respondent shall have no violations of the criminal law of this state or the Rules of Professional Conduct during her probation.
(3) If Respondent violates her probation or the JLAP monitoring agreement, the Commission will petition to revoke her probation and request the balance of the stayed suspension be actively served without automatic reinstatement, and Respondent may be reinstated only through the procedures of Admission and Discipline Rule 23(4) and (18).

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 minimum term of probation set forth above, Respondent’s probation shall remain in effect until it is terminated pursuant to a petition to terminate probation filed under Admission and Discipline Rule 23(17.1).

With the entry of this order of final discipline, the Commission filed a “Notice of Guilty Finding and Request for Suspension,” seeking interim suspension under Ind. Admission and Discipline Rule 23(ll.l)(a), is moot and is therefore denied. 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, except DICKSON, C.J., who believes the period of active suspension to be too lenient.


author: BRENT E. DICKSON, Chief Justice.

text:
    In the Matter of Leonard M. HOLAJTER, Respondent.
    No. 45S00-1301-DI-35.
    Supreme Court of Indiana.
    Jan. 14, 2013.
   PUBLISHED ORDER ACCEPTING RESIGNATION AND CONCLUDING PROCEEDING

BRENT E. DICKSON, Chief Justice.

Respondent has tendered to this Court an affidavit of 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)(d).

IT IS FURTHER ORDERED that any attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent’s resignation.

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). If Respondent seeks reinstatement, the misconduct admitted in Respondent’s affidavit of resignation, as well as any other allegations of misconduct, may be addressed in the reinstatement process. 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 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.


author: ROBB, Chief Judge.

text:
    AMERISAFE RISK SERVICES, INC., and Leerae Riggs, Appellants-Defendants, v. The ESTATE OF Hazel D. WADSACK, deceased, by Ronald J. WADSACK as Personal Representative, and Ronald J. Wadsack, individually, Appellees-Plaintiffs.
    No. 88A01-1204-CT-144.
    Court of Appeals of Indiana.
    Nov. 9, 2012.

      Danford R. Due, Scott E. Andres, Due Doyle Fanning, LLP, Indianapolis, IN, Attorney for Appellant.
    David W. Craig, Scott A. Faultless, Craig Kelley & Faultless LLC, Indianapolis, IN, Attorney for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

Amerisafe Risk Services, Inc. and its case worker Leerae Riggs (collectively “Amerisafe”) appeal the trial court’s denial of their motion to dismiss for lack of subject matter jurisdiction. Amerisafe raises one issue for our review, which we restate as whether the trial court erred in denying Amerisafe’s motion to dismiss. Concluding that the trial court did not have subject matter jurisdiction, and thus that it erred in denying the motion to dismiss, we reverse.

Facts and Procedural History

Ronald Matthew Wadsaek (“Matthew”) is the son of Hazel Wadsaek (“Hazel”) and Ronald J. Wadsaek (“Ronald”). On November 20, 2008, Matthew was electrocuted and severely burned while working for

Mills Tree Service when a tree limb came into contact with a power line. He was nineteen years old at the time. Matthew was hospitalized' and induced into a coma for an extended period of time. Not long after he was hospitalized, Hazel and Ronald (the ‘Wadsacks”) were appointed as temporary guardians of Matthew.

At the time of Matthew’s injury, Ameri-safe was the worker’s compensation insurer for Mills Tree Service, and Riggs was assigned to handle Matthew’s claim. In their complaint, the Wadsacks allege that Riggs “intentionally or recklessly undertook a course of extreme and outrageous conduct that was designed to deny Matthew of the worker’s compensation benefits he was entitled to ... and deprive Matthew from receiving [necessary] medical care,” as well as to interfere with the Wadsacks’ obligations as guardians. Brief of Appellees at 2-3. The Wadsacks claim that Riggs’s actions caused them to suffer extreme emotional distress and that Hazel died as a result of that distress. The Wadsacks filed this suit in June 2010. Amerisafe then filed a motion to dismiss pursuant to Indiana Trial Rule 12(B)(1), alleging that the trial court had no subject matter jurisdiction. The trial court held a hearing on the motion, and then denied the motion without explanation or issuing findings of fact. This appeal followed. Additional facts will be supplied as necessary.

Discussion and Decision

I. Standard of Review

The standard of appellate review of a trial court’s grant or denial of a motion to dismiss pursuant to Trial Rule 12(B)(1) is a function of what occurred in the trial court. Turner v. Richmond Power & Light Co., 763 N.E.2d 1005, 1007 (Ind.Ct.App.2002), trans. denied. The standard of appellate review is dependent upon: (1) whether the trial court resolved disputed facts; and (2) if the trial court resolved disputed facts, whether it conducted an evidentiary hearing or ruled on a “paper record.” Id. If the facts before the trial court are not in dispute, or if the trial court ruled on a paper record, then the question of subject matter jurisdiction is purely one of law and no deference is afforded to the trial court’s conclusion. Id. at 1007-08. The standard of review is then de novo, which is the appropriate standard in this case. Id. at 1007.

II. Subject Matter Jurisdiction

Subject matter jurisdiction is the power of a court to hear and determine a particular class of cases. K.S. v. State, 849 N.E.2d 538, 540 (Ind.2006). “Failure to exhaust administrative remedies is a defect in subject matter jurisdiction.” State ex rel. Atty. Gen. v. Lake Superior Court, 820 N.E.2d 1240, 1247 (Ind.2005), cert, denied, 546 U.S. 927, 126 S.Ct. 398, 163 L.Ed.2d 276 (2005). Therefore, where an administrative remedy is available, the plaintiff must pursue that remedy before he or she will be allowed access to the courts. Sun Life Assur. Co. of Can. v. Ind. Comprehensive Health Ins. Ass’n, 827 N.E.2d 1206, 1209 (Ind.Ct.App.2005), trans. denied. The value of exhausting administrative remedies has been emphasized by our courts, and the reasons for requiring exhaustion are well established: (1) avoiding premature litigation; (2) eom-piling an adequate record for judicial review; and (3) allowing agencies to retain the opportunity and autonomy to correct their own errors. Id. Failure to exhaust administrative remedies makes a motion to dismiss for lack of subject matter jurisdiction appropriate. Id.

When interpreting a statute, our goal is to give effect to the intent of the legislature, and in doing so we are guided by the principle that the best evidence of the legislature’s intent is the language of the statute itself. Robinson v. Gazvoda, 783 N.E.2d 1245, 1250 (Ind.Ct.App.2003), trans. denied.

The Wadsacks argue that the Worker’s Compensation Board (the “Board”) does not have jurisdiction because their claims are not on behalf of Matthew, or based directly on his injuries, but instead are based on the handling of Matthew’s claims. We disagree. The exclusivity provision of the Worker’s Compensation Act, which grants employees rights and remedies under the worker’s compensation system and excludes all other remedies, specifically extends to personal representatives and next of kin. Ind. Code § 22-3-2-6. Further, the exclusivity provision encompasses a bad faith provision of the statute that grants the Board exclusive jurisdiction to determine whether an insurance carrier has acted in bad faith or has committed an independent tort in settling claims. Ind.Code § 22-3-4-12.1(a). Thus, the Board’s jurisdiction to hear claims of bad faith extends not only to the injured employee, but to his personal representatives and next of kin.

In Borgman v. State Farm Ins. Co., we reviewed a case in which the husband of an injured worker tried to bring suit in court rather than before the Board, claiming that his wife’s benefits were wrongfully denied and that the insurance company acted in bad faith in denying her claim. 713 N.E.2d 851, 853 (Ind.Ct.App. 1999), trans. denied. Borgman argued that the exclusivity provision of the Worker’s Compensation Act did not bar his claims because the alleged acts “were committed subsequent to, and independent of, the original injury that [his wife] sustained while working.” Id. at 854. There, as here, the family of the injured worker made claims based not on the underlying injury itself, but on the handling of the claim by the insurance company. Like Borgman, the Wadsacks rely at least in part on our supreme court’s decision in Stump v. Commercial Union, 601 N.E.2d 327, 334 (Ind.1992), which determined that an employee could proceed in court against an insurance provider for fraud or gross negligence, notwithstanding the exclusivity provision. Borgman, 713 N.E.2d at 854. However, we noted in Borgman that Stump was decided before our legislature enacted the bad faith provision of the Worker’s Compensation Act. Borgman, 713 N.E.2d at 854 (citing Ind.Code § 22-3-4-12.1). We held that in light of the plain language of the bad faith provision, Borgman’s claim fell within that provision and thus within the exclusive jurisdiction of the Board, and therefore the trial court did not have subject matter jurisdiction. While the Wadsacks may not have a claim for benefits pending themselves, the Board nonetheless has jurisdiction over their suit, which is a derivative of Matthew’s claim for benefits.

The Wadsacks also argue that requiring them to have their claim heard by the Board would unconstitutionally deprive them of a remedy pursuant to the open courts provision of the Indiana Constitution. See Ind. Const, art. 1, § 12. We analyzed the same argument in Borgman, and determined that the statute was constitutional. Borgman, 713 N.E.2d at 856; see also Sims v. U.S. Fid. & Guar. Co., 782 N.E.2d 345, 351 (Ind.2003) (agreeing with the Borgman court that the statute does not violate the open courts provision of our Constitution). We also note, as did the Sims court, that the Wadsacks are not completely denied access to the courts under this scheme. Sims, 782 N.E.2d at 351. The Wadsacks must present their claim first to the Board, but if they receive an adverse ruling there, they may appeal to our court. Ind.Code § 22-3-4-8 (stating that an award by the Board may be appealed to the court of appeals under the same terms and conditions as apply to ordinary civil actions).

We also agree with Amerisafe that in general, direct suits against third party insurers are not allowed in Indiana. State Farm Mut. Auto. Ins. Co. v. Estep, 873 N.E.2d 1021,1026-27 (Ind.2007). We have noted before" that “[t]he kinds of actions which have been barred by the direct action rule are actions against the insurer for the insurer’s own negligence or bad faith in handling claims.” City of S. Bend v. Century Indem. Co., 821 N.E.2d 5,11 (Ind. Ct.App.2005), clarified on reh’g, 824 N.E.2d 794, trans. denied. Limited exceptions have been allowed to the rule, but they have been cases where a party was seeking only declarations regarding the insurer’s responsibilities should the underlying case be proven. Id. This case does not fall under that exception, as the Wadsacks are seeking more than a declaration.

Finally, the Wadsacks present two hypothetical, which they argue are comparable to the case at bar and would not be barred by the exclusivity provision. In both hypothetical, a non-employee father is visiting his injured child’s place of employment and is himself injured by the employer’s or an employee’s negligence. We agree with the Wadsacks, as does Amerisafe, that in such situations the father would have a cause of action against the employer that would not require going before the Board, and would not be covered by the exclusivity provision. However, those scenarios are distinguishable from the case at bar. In those scenarios, the subsequent negligence is completely separate from the child’s workplace injury — the father would have a cause of action against the employer for the negligence that harmed him regardless of whether his child had been injured previously. Here however, the Wadsacks’ claims are intimately tied to what happened to their son and Amerisafe’s handling of Matthew’s worker’s compensation claim.

Conclusion

Concluding that the trial court did not have subject matter jurisdiction over this case and that the Wadsacks must take their complaint to the Board, we reverse.

Reversed.

BAKER, J., and BRADFORD, J., concur.

      . The suit was filed by Hazel’s estate with Ronald as the personal representative, and by Ronald individually.

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

      . The worker’s compensation board, upon hearing a claim for benefits, has the exclusive jurisdiction to determine whether the employer, the employer’s worker's compensation administrator, or the worker’s compensation insurance carrier has acted with a lack of diligence, in bad faith, or has committed an independent tort in adjusting or settling the claim for compensation.


author: BROWN, Judge.

text:
    Richard Troy DUNNO, Appellant, v. Ronalee RASMUSSEN, Appellee.
    No. 02A03-1207-PO-310.
    Court of Appeals of Indiana.
    Nov. 20, 2012.

      Daniel L. Lauer, Blume, Connelly, Jordan, Stucky & Lauer, LLP, Fort Wayne, IN, Attorney for Appellant.
   OPINION

BROWN, Judge.

Richard Troy Dunno appeals the trial court’s judgment ordering him to pay attorney fees. Dunno raises one issue which we revise and restate as whether the trial court abused its discretion by denying Dunno’s motion to correct error. We reverse.

The relevant facts follow. On December 21, 2011, Dunno filed a petition for an order for protection and request for a hearing against Ronalee Rasmussen. Dunno alleged that Rasmussen struck him with a vodka bottle and that he received eighteen stitches as a result of the injury. On December 22, 2011, the court issued an ex parte order for protection.

A chronological case summary (“CCS”) entry dated February 9, 2012, indicates that Dunno failed to appear for a hearing and present evidence. That same day, the court ordered that the petition for an order for protection be dismissed and that the order for protection issued on December 22, 2011, be terminated.

A CCS entry dated February 13, 2012, indicates that Rasmussen presented evidence at the hearing that she was not the individual that caused Dunno to receive stitches and requested the payment of attorney fees. On February 13, 2012, the court granted Rasmussen’s motion and stated that she was entitled to recover reasonable attorney fees in the sum of $500. Specifically, the court’s order provided:

[Dunno] fails to appear. [Rasmussen] appears with counsel and the Court finds as follows:

1. The Court granted an Ex Parte Order of Protection based on [Dunno’s] sworn statement that [Rasmussen] struck him with a vodka bottle resulting in injury to [Dunno]. [Dunno] stated that he was taken to the emergency room and received 18 stitches for the injury caused by [Rasmussen].
2. At the hearing [Rasmussen] presented evidence that she was not the individual that caused [Dunno] to receive stitches.
3. The Court then dismissed and terminated the Order of Protection and [Rasmussen], by counsel, requested the payment of attorney fees. [Rasmussen’s] motion is granted. [Rasmussen] is entitled to recover reasonable attorney fees which the Court finds to be the sum of $500.00. [Rasmussen] is now given a judgment in favor of [Rasmussen] against [Dunno] in the sum of $500.00.

Appellant’s Appendix at 1.

On February 24, 2012, Dunno filed a motion to correct error. Dunno alleged that attorney fees may not be assessed against him pursuant to Ind.Code § 34-26—5—9(c). That same day, Dunno also filed a motion for relief from judgment under Ind. Trial Rule 60(B)(1). Dunno alleged that his attorney advised him that his petition would be dismissed if he chose not to attend the hearing and was not advised that attorney fees could be assessed against him.

On March 5, 2012, the court denied Dunno’s motion for relief from judgment. On March 19, 2012, Dunno filed a request for a hearing with respect to his motion to correct error. The court held a hearing on June 18, 2012, and denied Dunno’s motion to correct error.

Before addressing Dunno’s arguments, we note that Rasmussen did not file an appellee’s brief. When an appellee fails to submit a brief, we do not undertake the burden of developing appellee’s arguments, and we apply a less stringent standard of review, that is, we may reverse if the appellant establishes prima fade error. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind.Ct.App.2006). This rule was established so that we might be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. Wright v. Wright, 782 N.E.2d 363, 366 (Ind.Ct.App.2002). Questions of law are still reviewed de novo, however. McClure v. Cooper, 893 N.E.2d 337, 339 (Ind.Ct.App.2008).

The issue is whether the trial court abused its discretion by denying Dunno’s motion to correct error. The standard of appellate review of trial court rulings on motions to correct error is abuse of discretion. Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1055 (Ind.2003). An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before the court, including any reasonable inferences therefrom. Id.

Dunno argues that the trial court improperly assessed attorney fees against him because Ind.Code § 34-26-5-9 allows for a trial court to order only a respondent to pay attorney fees. Dunno argues that “[allowing the trial court to award attorney fees against someone petitioning for a protective order would undoubtedly have a chilling effect and cause some victims of domestic violence to forgo making a legitimate plea for protection.” Appellant’s Brief at 7. Dunno also claims that the record does not support an attorney fee assessment under Ind.Code § 34-52-1-1(b).

Generally, Indiana has consistently followed the American Rule in which both parties generally pay their own fees. Lo-parex, LLC v. MPI Release Techs., LLC, 964 N.E.2d 806, 815-816 (Ind.2012). In the absence of statutory authority or an agreement between the parties to the contrary — or an equitable exception — a prevailing party has no right to recover attorney fees from the opposition. Id. at 816. The record does not reveal what statutory basis, if any, or what reason Rasmussen cited in support of her request for attorney fees. The court’s order also did not specify a statutory provision supporting the award of attorney fees.

Ind.Code § 34-26-5-9(c) of the Indiana Civil Protection Order Act governs the relief after notice and hearing and provides that “[a] court may grant the following relief after notice and a hearing, whether or not a respondent appears, in an order for protection or in a modification of an order for protection: ... [o]rder a respondent to ... pay attorney’s fees.” This statute does not mention that a trial court may order a petitioner to pay attorney fees. Rather, the statute limits the trial court’s discretion to an order against the respondent.

The first section of the Indiana Civil Protection Order Act provides that “[t]his chapter shall be construed to promote the: (1)protection and safety of all victims of domestic or family violence in a fair, prompt, and effective manner; and (2) prevention of future domestic and family violence.” Ind.Code § 34-26-5-1. In light of the statements in Ind. Code § 34-26-5-1 and Ind.Code § 34-26-5-16, which provides that certain fees may not be charged in seeking relief under this chapter but that costs may be collected from a party against whom an order of protection is sought, we observe that ordering a petitioner to pay the respondent’s attorney fees may chill the filing of meritorious protective order cases because potential claimants face the possibility of being ordered to pay fees. We cannot say that Ind.Code § 34-26-5-9 provides statutory authority to order Dunno to pay Rasmussen’s attorney fees.

Subsection (b) of Ind.Code § 34-52-1-1, also known as the General Recovery Rule, provides:

In any civil action, the court may award attorney’s fees as part of the cost to the prevailing party, if the court finds that either party:

(1) brought the action or defense on a claim or defense that is frivolous, unreasonable, or groundless;
(2) continued to litigate the action or defense after the party’s claim or defense clearly became frivolous, unreasonable, or groundless; or
(3) litigated the action in bad faith.

Ind.Code § 34-52-1-1.

A claim is “frivolous” if it is made primarily to harass or maliciously injure another; if counsel is unable to make a good faith and rational argument on the merits of the action; or if counsel is unable to support the action by a good faith and rational argument for extension, modification, or reversal of existing law. America’s Directories Inc., Inc. v. Stell-horn One Hour Photo, Inc., 883 N.E.2d 1059, 1070-1071 (Ind.Ct.App.2005), trans. denied. A claim is “unreasonable” if, based upon the totality of the circumstances, including the law and facts known at the time, no reasonable attorney would consider the claim justified or worthy of litigation. Id. at 1071. A claim or defense is groundless if no facts exist which support the legal claim relied on and presented by the losing party. SLR Plumbing & Sewer, Inc. v. Turk, 757 N.E.2d 193, 201 (Ind.Ct.App.2001). However, an action is not groundless merely because a party loses on the merits. Id. Bad faith is demonstrated where the party presenting the claim is affirmatively operating with furtive design or ill will. SJS Refractory Co., LLC v. Empire Refractory Sales, Inc., 952 N.E.2d 758, 770 (Ind.Ct.App.2011).

Dunno argues that the trial court made no specific finding that he brought or continued his action after his claim became frivolous, unreasonable, or groundless, or that he litigated in bad faith. Dunno also argues that while Rasmussen presented evidence that she was not the individual that caused him to receive stitches, it is undisputed that he was injured by someone at the party and that he verified under oath that Rasmussen caused the injuries.

The trial court’s decision to award attorney fees under § 34-52-1-1 is subject to a multi-level review: the trial court’s findings of facts are reviewed under the clearly erroneous standard and legal conclusions regarding whether the litigant’s claim was frivolous, unreasonable, or groundless are reviewed de novo. Purcell v. Old Nat. Bank, 972 N.E.2d 835, 843 (Ind.2012). Finally, the trial court’s decision to award attorney fees and any amount thereof is reviewed for an abuse of discretion. Id. A trial court abuses its discretion if its decision clearly contravenes the logic and effect of the facts and circumstances or if the trial court has misinterpreted the law. Id.

To the extent that Dunno argues that the trial court made no specific finding that he brought or continued his action after his claim became frivolous, unreasonable, or groundless, or that he litigated in bad faith, we observe that the Indiana Supreme Court recently held that when a trial court grants a petition for attorney fees without making special findings of fact, “we look to the basis of the prevailing party’s petition and view the court’s order as an implicit legal conclusion consistent with the main thrust of the petition — that the claim or defense at issue was frivolous, unreasonable, groundless, or litigated in bad faith.” R.L. Turner Corp. v. Town of .Broumsburg, 963 N.E.2d 453, 461 (Ind.2012). As previously mentioned, the record does not reveal what statutory basis, if any, or what reason Rasmussen cited in support of her request for attorney fees.

Even assuming, without deciding, that the General Recovery Rule applies in the context of this case, and recognizing again that Rasmussen did not file an appellee’s brief, we cannot say that the record supports an award of attorney fees. While Dunno failed to appear at the hearing and the court found that Rasmussen presented evidence that she was not the individual that caused Dunno to receive stitches, we cannot say that the record supports the conclusion that Dunno’s action was frivolous, unreasonable, or groundless, that Dunno continued to litigate after his claim clearly became frivolous, unreasonable, or groundless, or that he litigated the action in bad faith. Accordingly, we conclude that Dunno has made a prima facie showing that the award of attorney fees was improper. See Dorothy Edwards Realtors, Inc. v. McAdams, 525 N.E.2d 1248, 1253 (Ind.Ct.App.1988) (concluding that appellant had made a prima facie showing on appeal that the award of attorney fees was inappropriate and should be reversed), reh’g denied.

For the foregoing reasons, we reverse the trial court’s judgment ordering Dunno to pay Rasmussen’s attorney fees.

Reversed.

FRIEDLANDER, J., and PYLE, J., concur.

      . The record does not contain a transcript of the hearing.

      . The February 13, 2012 order stated that Dunno alleged that Rasmussen struck him with a vodka bottle resulting in "injury to the Respondent.” Appellant's Appendix at 1. The next day, the court entered an amended order to correct the scrivener’s error.

      . We note that a statement above the affirmation in Dunno's petition for an order for protection states: "I understand that if a Hearing is set, and if I fail to appear for the Hearing, the Court may terminate the Ex Parte Order and dismiss the case." Appellant’s Appendix at 22.

      . Dunno’s notice of appeal refers to the court’s February 14, 2012 order and the denial of his motion to correct error on June 18, 2012. Dunno does not mention on appeal or develop any argument with respect to the denial of his motion for relief from judgment.

      . There are three well-established common-law exceptions to the American Rule: the "obdurate behavior” exception, the "common fund” exception, and the “private attorney general” exception. Indiana embraces the first two of these and not the third. Loparex, LLC, 964 N.E.2d at 816 n. 5.

      . Ind.Code § 34-26-5-16 provides:
      Fees for:
      (1) filing:
      (2) service of process;
      (3) witnesses; or
      (4)subpoenas;
      may not be charged for a proceeding seeking relief or enforcement as provided in this chapter, including a proceeding concerning a foreign protection order as described in section 17 of this chapter. This section may not be construed to prevent the collecting of costs from a party against whom an order for protection is sought if the court finds a claim to be meritorious and issues an order for protection under this chapter.