text:
    In the Matter of Julia N. COMPTON, Respondent.
    No. 41S00-1304-DI-228.
    Supreme Court of Indiana.
    May 30, 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: On April 25, 2012, Respondent admitted guilt to a charge of public intoxication, a class C misdemeanor, and entered into a diversion program in Marion County.

On May 21, 2012, Respondent pled guilty to resisting law enforcement, a class A misdemeanor, and with public intoxication a class C misdemeanor, in Hancock County.

Respondent was charged with several offenses in Johnson County on May 4, 2012, and on June 4, 2012. On October 4, 2012, Respondent was convicted on a guilty plea to operating a vehicle while intoxicated (“OWI”), as a class D felony, and was granted alternative misdemeanor sentencing. The remaining charges were dismissed.

The parties cite the following fact in aggravation: Respondent had four alcohol-related arrests within three and a half months. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent was cooperative with the Commission; (3) Respondent is remorseful; (4) Respondent self-reported her arrests to the Commission in a timely manner; (5) at the time of the misconduct, Respondent was suffering from a chemical dependency; (6) Respondent has completed an inpatient program, continues treatment for alcoholism, and is complying with a voluntary monitoring agreement with the Indiana Judges and Lawyers Assistance Program (“JLAP”); (7) she has demonstrated a sustained period of rehabilitation; and (8) she has already suffered other penalties for her misconduct, including four months of incarceration.

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 on the date of this order, all stayed subject to completion of at least two (2) years of probation with JLAP monitoring. The Court incorporates by reference the terms and conditions of probation set forth in the parties’ Conditional Agreement, which include:

(1) During her probation, Respondent shall refrain totally from the use of alcohol and mind-altering substances.
(2) Respondent shall have no violations of JLAP requirements, the criminal laws of Indiana, or the Rules of Professional Conduct during her probation.
(3) If Respondent violates her probation, the Commission will petition to. revoke her probation and request 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).

With the acceptance of the parties’ conditional agreement, the Court denies as moot the Commission’s “Notice of Guilty Finding and Request for Suspension,” filed on April 15, 2013.

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 2S(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., and RUSH, J., who dissent.

DICKSON, C.J., dissents from approval of the conditional agreement, believing that the proposed discipline is significantly inadequate in light of Respondent’s felony conviction.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Thomas R. PHILPOT, Respondent.
    No. 45S00-1304-DI-224.
    Supreme Court of Indiana.
    May 30, 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(11.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 consideration of all materials submitted, now finds that on February 21, 2013, a judgment of guilty was entered against Respondent on jury verdicts of guilt on the following offenses under federal law: two counts of Mail Fraud and one count of Theft from a Federally Funded Program, all of which are felonies.

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

The Clerk of this Court is directed to send notice of this Order to 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 Randy C. EYSTER, Respondent.
    No. 49S00-1303-DI-214.
    Supreme Court of Indiana.
    May 30, 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: On August 17, 2011, Respondent was convicted on a guilty plea to operating a motor vehicle (“OWI”) with at a least 0.08 grams of alcohol per 210 letter of breath, a class C misdemeanor.

On June 12, 2013, Respondent was convicted on a guilty plea to the following offenses: OWI endangering a person, a class C misdemeanor; and OWI with a previous OWI conviction within five years, a class D felony.

The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent was cooperative with the Commission; (3) Respondent self-reported his conviction to the Commission in a timely manner; and (4) Respondent voluntarily engaged himself in alcohol treatment an monitoring through the Indiana Judges and Lawyers Assistance Program (“JLAP”) and is in compliance with his monitoring agreement.

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 ninety (90) days, beginning on the date of this order, all stayed subject to completion of at least two (2) years of probation. The Court incorporates by reference the terms and conditions of probation set forth in the parties’ Conditional Agreement, which include:

(1) During his probation, Respondent shall refrain totally from the use of alcohol and mind-altering substances except as prescribed, and he shall comply with all JLAP requirements and with the Rules of Professional Conduct.
(2) If Respondent violates his probation, 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).

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 acceptance of the parties’ conditional agreement, the Court denies as moot the Commission’s “Notice of Guilty Finding and Request for Suspension,” filed on March 25, 2013.

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., and RUSH, J. who dissent.

DICKSON, C.J., dissents from approval of the conditional agreement, believing that the proposed discipline is significantly inadequate in light of Respondent’s felony conviction.


text:
    In the Matter of Mary K. KLEISS, Respondent.
    No. 49S00-1304-DI-271.
    Supreme Court of Indiana.
    May 30, 2013.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW DUE TO DISABILITY

Pursuant to Indiana Admission and Discipline Rule 23, Section 25, the Disciplinary Commission has filed a “Verified Petition to Determine Disability,” requesting this Court to suspend Respondent from the practice of law in this state by reason of physical or mental illness or infirmity, or because of the use of or addiction to intoxicants or drugs. Along with that petition, Respondent has submitted an “Affidavit of Consent to Disability Suspension.”

Being duly advised, the Court GRANTS the Commission’s petition and ORDERS that Respondent be hereby suspended from the practice of law in this state, effective immediately, due to disability, pursuant to Admission and Discipline Rule 23(25). Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). Respondent may petition for reinstatement upon termination of the disability pursuant to Admission and Discipline Rule 23(4) and (18).

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:
RILEY, Judge.
      BARNES, Judge,

text:
    FAYETTE COUNTY BOARD OF COMMISSIONERS, Appellant-Defendant, v. Howard PRICE, Appellee-Plaintiff.
    No. 21A04-1208-PL-434.
    Court of Appeals of Indiana.
    April 1, 2013.
    Ordered Published May 17, 2013.
    Rosemary L. Borek, Stephenson Morow & Semler, Indianapolis, IN, Attorney for Appellant.
    John H. Haskin, Ryan P. Sink, Indianapolis, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

In this interlocutory appeal, Appellant/Defendant, the Fayette County Board of Commissioners (Board), appeals the trial court’s denial of its motion for summary-judgment after the trial court concluded that the Board’s decision not to reappoint Appellee/Plaintiff Howard Price (Price), as Director of Highway Operations was a quasi-judicial decision that is subject to judicial review.

We affirm.

ISSUE

Price raises one issue on appeal, which we restate as follows: Whether the Board’s decision not to reappoint Price as Director of Highway Operations was a quasi-judicial decision, which is appealable to the Circuit Court pursuant to Indiana Code section 36-2-2-27.

FACTS AND PROCEDURAL HISTORY

After serving as Director of Highway Operations from 1991 through 2002, Price was replaced in 2003. He was reappointed to the position in 2006 and served through 2010. At the January 4, 2011 public meeting, which Price attended, newly elected Commissioner Barton Barker mentioned that he was concerned about problems within the highway department. After discussing the concerns, the Commissioners agreed to hold executive sessions on January 13 and 14, 2011, to further examine the issue. During the January 13 session, the Board would meet with both union and nonunion employees, and during the January 14 session, the Board would meet with Price. The Board told Price to attend the January 14 session. The Board also issued a memorandum to all highway department staff setting forth the schedule for the two executive sessions, and a notice to the union president stating that the purpose of the meeting was to get input from employees about the future management of the highway department.

During the January 13, 2011 executive session, the Commissioners asked the union employees what was occurring at the highway department. Twelve employees told the Board that Price showed favoritism and gave inconsistent directions. The highway department foreman told the Commissioners that there were supervision problems at the department but that part of the blame rested with the employees as well as the Commissioners.

The following day, Price answered the Commissioners’ questions on various topics during a 60 to 90 minute executive session. Specifically, Price answered questions about his medical condition, his military service and work experience, and problems he had encountered with highway department employees. He complained that he needed the Board’s help to get the workers to do their jobs. Price was given an opportunity to answer all of the Board’s questions and to explain why he felt he was meeting expectations as the Director of Highway Operations.

At the next scheduled Board meeting on January 18, 2011, Commissioner Breiten-bach (Breitenbach) moved to reappoint Price as Director of Highway Operations. The motion failed for a lack of a second. Price’s reappointment was not discussed until the next regularly scheduled meeting on February 8, 2011. Breitenbach again moved to reappoint Price as Director of Highway Operations, pointing out that Price had recently handled a weather emergency despite being short on equipment and employees. Breitenbach also pointed out that Price never missed a day of work. Again, the Board failed to second the motion. Instead, Barker moved to appoint an interim supervisor until the position could be advertised and a replacement hired. Commissioner Pflum (Pflum) seconded the motion, which passed.

After the meeting, Price asked the commissioners why he had been terminated. Pflum explained that his decision was based on his personal observations and the best interests of the county’s taxpayers. According to Pflum, the highway department was not as efficient as it could be. Pflum further explained that his decision was based upon information learned in the executive sessions. He also spoke to people driving on country roads and citizens in the district. Breitenbach disagreed with the decision, and stated for the record the reasons he believed that Price should have been retained as the Director of Highway Operations.

On March 1, 2011, Price filed a complaint against the Board in the Fayette Circuit Court. Specifically, the complaint alleged that Price was bringing the original action and appeal against the Board pursuant to Indiana Code section 36-2-2-27, requesting a de novo hearing and review of the Board’s decision to terminate him. The Board filed a motion to dismiss, which the trial court converted to a motion for summary judgment following a hearing. The Board filed a summary judgment motion on December 2, 2011. The trial court held a hearing on the motion and denied it on March 8, 2012. Specifically, the trial court concluded that:

[T]he Fayette County Board of Commissioners provided [Price] and the union employees with prior notice of its executive sessions and general, open session pertaining to the employment of [Price] as county Highway Supervisor; the Board ascertained facts, heard witnesses, and determined the issue of whether or not to terminate the employment of [Price] as county Highway Supervisor; and, finally, the Board passed a motion to terminate [Price’s] continued employment as county Highway Supervisor -a decision that is enforceable by law. As such, the acts of the Board are quasi-judicial in nature and are subject to review. Accordingly, the [c]ourt finds that the Fayette County Board of Commissioners’ Motion for Summary Judgment must be denied.

(Appellant’s App. p. 373).

The Board now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

The Board argues that the trial court erred in denying its motion for summary judgment because the decision to terminate Price’s employment is not quasi-judicial in nature. In reviewing a trial court’s ruling on summary judgment, we stand in the shoes of the trial court, and apply the same standards in deciding whether to affirm or reverse summary judgment. Warren v. Warren, 952 N.E.2d 269, 272 (Ind.Ct.App.2011). Summary judgment is appropriate if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). Our standard of review is not changed by the trial court’s entry of findings of fact and conclusions thereon. C.M.L. ex rel. Brabant v. Republic Services, Inc., 800 N.E.2d 200, 202 (Ind.Ct.App.2003), trans. denied. Although the findings and conclusions provide valuable insight into the trial court’s decision, they are not binding upon this court. Id.

Further, the parties in this case agree that there is no disputed issue of fact and that the question to be determined is a matter of law. We review questions of law de novo, and therefore we owe no deference to the trial court’s conclusions. Simon Property Group, L.P., v. Michigan Sporting Goods Distributors, Inc., 837 N.E.2d 1058, 1070 (Ind.Ct.App.2005), trans. denied.

Indiana Code section 36-2-2-27 provides that a “party to a proceeding before the county executive who is aggrieved by a decision of the executive may appeal that decision to the circuit court for the county.” Only “judicial” or “quasi-judicial” decisions of the commissioners may be appealed. Great Lakes Transfer, LLC v. Porter County Highway Department, 952 N.E.2d 235, 241 (Ind.Ct.App.2011). The term “quasi-judicial” or “judicial in nature” is used to designate a judicial function and to indicate that it is being exercised by a person other than a judge. Lincoln v. Board of Commissioners of Tippecanoe County, 510 N.E.2d 716, 721 (Ind.Ct.App.1987), abrogated on other grounds, McDillon v. Northern Indiana Public Service Company, 841 N.E.2d 1148 (Ind.2006).

Although it is difficult to define quasi-judicial power and to discriminate between judicial and administrative acts in a way which will be applicable to every case, this court has previously noticed it is the nature, quality, and purpose of the act performed, rather than the name or character of the officer or board which performs it that determines its character as judicial. Id. Generally, the judicial function consists of: (1) the presence of the parties upon notice; (2) the ascertainment of facts; (3) the determination of the issues; and (4) the rendition of a judgment or final order regarding the parties’ rights, duties or liabilities. Id.

In Lincoln, the Board of Commissioners of Tippecanoe County affirmed Lincoln’s discharge from her employment as a courthouse custodian. Id. Lincoln filed an appeal in the Tippecanoe Circuit Court pursuant to Indiana Code section 36-2-2-27. Id. The Board of Commissioners filed a motion to dismiss, which the trial court granted. On appeal, this court noted that the Board of Commissioners provided notice to the parties, permitted the parties to be represented by counsel, convened a formal hearing, took evidence, judged the credibility of the witnesses and weighed the evidence, and then made a decision to affirm the decision Lincoln’s discharge. Id. at 721. The Board of Commissioners also adjudicated Lincoln’s challenge to her discharge and rendered a decision against her. Id. at 721-22. Based on the foregoing, the Lincoln court concluded that the Board was acting in a quasi-judicial capacity and that Indiana Code section 36-2-2-27 therefore provided Lincoln the right to appeal the Board of Commissioners’ decision to the circuit court. Id. at 722.

Here, as in Lincoln, the Board provided notice to the parties, convened a hearing, took evidence, judged the credibility of witnesses, weighed the evidence, ascertained the facts, determined the issues, and rendered a judgment regarding Price’s position. The Board was therefore acting in a quasi-judicial capacity and Indiana Code section 36-2-2-27 provides Price the right to appeal the Board’s decision to the Fayette Circuit Court. See also Hyde v. Board of Commissioners of Wells County, 198 N.E. 333, 209 Ind. 245 (1935); Hastings v. Board of Commissioners of Monroe County, 188 N.E. 207, 205 Ind. 687 (1933).

CONCLUSION

Based on the foregoing, we conclude that the trial court did not err in denying the Board’s motion for summary judgment.

Affirmed.

BAKER, J. concurs.

BARNES, J. concurs with separate opinion.

BARNES, Judge,

concurring.

I concur with the majority’s decision that the trial court properly granted summary judgment under the facts of this case. Given the Board’s quasi-judicial actions in terminating Price from his position as Director of Highway Operations, the trial court properly determined that Price was entitled to judicial review of the termination. I write separately to clarify that judicial review is not required in all terminations of such positions. The Board subjected its determination to judicial review under Indiana Code Section 36-2-2-27 by engaging in quasi-judicial actions when it terminated Price.


author: CRONE, Judge.

text:
    John V. SEBRING, Appellant-Plaintiff, v. AIR EQUIPMENT AND ENGINEERING, INC., Donaldson Company, Inc., William W. Meyer and Sons, Inc., Newton Conveyors, Inc., and Emerson Power Transmission Corporation, Appellees-Defendants.
    No. 02A05-1211-PL-566.
    Court of Appeals of Indiana.
    April 4, 2013.
    David M. Lutz, David M. Lutz LLC, Fort Wayne, IN, Attorney for Appellant.

      James P. Fenton, Eilbaeher Fletcher, LLP, Fort Wayne, IN, Attorney for Ap-pellee, Newton Conveyors, Inc.
   OPINION

CRONE, Judge.

Case Summary

John V. Sebring was injured while using a dust collector at his workplace in Fort Wayne, Indiana. A component of the dust collector was manufactured by Newton Conveyors, Inc. (“NCI”), a Texas corporation. Sebring sued NCI and several other defendants in Indiana. NCI filed a motion to dismiss for lack of personal jurisdiction, which the trial court granted.

Sebring appeals the dismissal. NCI’s role in the manufacturing process took place entirely within Texas, and the manufacturer of the final product unilaterally decided to ship the product to Indiana. Under these circumstances, NCI’s contact with Indiana is too attenuated to support jurisdiction. Therefore, we affirm.

Facts and Procedural History

On March 22, 2012, in Allen Superior Court, Sebring filed a complaint, which alleged that several of his fingers were amputated due to the malfunction of a modular baghouse dust collector unit that he was using at his job at OmniSource. OmniSource is located in Fort Wayne, Indiana. The dust collector was manufactured by Donaldson Company, Inc. (“Donaldson”), which is incorporated under the laws of Delaware and has a plant in Nich-olasville, Kentucky. Donaldson purchased a component part, a screw conveyor, from NCI, which is incorporated under the laws of Texas and has its sole place of business in Cleburne, Texas. Donaldson and NCI were among the defendants named in Sebring’s complaint.

On June 12, 2012, NCI filed a motion to dismiss for lack of personal jurisdiction. NCI submitted a memorandum in support of its motion, along with an affidavit from NCI’s president and documentation of the sale of the screw conveyor. The affidavit states that NCI does not have any employees or facilities in Indiana. Between March 1991 and October 1993, NCI “had a national advertising program via fax, portions of which may have been directed to Indiana,” but since then, NCI has not done any advertising in Indiana. Appellant’s App. at 72. NCI does not have a telephone number or listing in Indiana. Between June 15, 2001, and January 31, 2003, NCI had an independent sales representative in Ohio whose territory included northern Indiana; however, NCI has no record of any sales being made in Indiana during this time. Since January 31, 2003, NCI has not had a sales representative or a distribution network in Indiana. NCI does not hold any Indiana business licenses, nor does it have any “ongoing business relationships with any Indiana residents.” Id. at 73.

The affidavit gives the following account of the transaction between NCI and Donaldson:

42. On January 31, 2005, Donaldson faxed from its Nicholasville, Kentucky facility, a purchase order to NCI requiring NCI to have the screw conveyor ready for shipment by March 9, 2005. This purchase order was accepted by NCI on January 31, 2005 by a fax transmission to Donaldson’s facility in Nich-olasville, Kentucky....
43. By agreement of NCI and Donaldson the shipping date was changed to March 25, 2005.
44. In addition, on January 31, 2005, Donaldson’s purchase order informed NCI that the destination for the convey- or was “OmniSource, 7625 Vicksburg Pike, Fort Wayne, Indiana 46804.” The Donaldson purchase order specified that the shipment would be “F.O.B.[] ORIGIN SHIPPING POINT,” which was NCI’s facility in Cleburne, Texas.
45. On March 22, 2005, ATS truck line picked up the conveyor, F.O.B. at NCI’s location in Cleburne, Texas, for shipment to OmniSource’s location in Fort Wayne, Indiana....
46. All freight charges were paid by Donaldson and Donaldson chose the carrier, ATS truck line.
47. Ordinarily, Donaldson would have had NCI direct this conveyor to Donaldson’s plant in Nieholasville, Kentucky. However, because Donaldson wished to expedite delivery of the goods to OmniSource’s location, Donaldson arranged for the destination of the convey- or to be the OmniSource location in Fort Wayne, Indiana.
48. Donaldson is a manufacturer of dust collectors, and from time to time it has purchased conveyors from NCI to be used with Donaldson’s dust collectors.
49. NCI’s business records indicate that in the ten years 2002 to the present, NCI products have been shipped to Indiana only six times. Five of these shipments were made for Donaldson, and all such shipments were “F.O.B. Cleburne, Texas.” One of these shipments was the shipment which Donaldson directed to OmniSource in Fort Wayne, Indiana. In all five cases, Donaldson chose the carrier, and Donaldson paid all freight charges....
50. In addition, one of the six shipments was to the Romweber Company, located in Batesville, Indiana. This shipment was also F.O.B. Cleburne, Texas, and Romweber paid all freight charges....
51. The total revenue NCI derived from the conveyor Donaldson had NCI direct to Indiana in March 2005 was $10,286.00. Adding in the replacement parts shipped to Indiana for Donaldson over the past ten years and the Romwe-ber shipment, NCI’s total revenue from all products shipped to Indiana, including the March 2005 conveyor, over ten years was $20,427.00. This represents only .003% of NCI’s total revenues over the past ten years.
52. NCI did not install or inspect the March 2005 conveyor at OmniSource and no employee, representative, or agent of NCI performed any work on the conveyor after it was delivered to Donaldson’s carrier on March 22, 2005. NCI has never had any contact with OmniSource or the Plaintiff in this case, Mr. Sebring.

Id. at 74-75.

On October 8, 2012, the trial court granted NCI’s motion to dismiss. Sebring appeals from this order.

Discussion and Decision

Personal jurisdiction is a question of law. LinkAmerica Corp. v. Albert, 857 N.E.2d 961, 965 (Ind.2006). Therefore, our review is de novo, and we do not defer to the trial court’s legal conclusion as to whether personal jurisdiction exists. Id. However, to the extent that the issue of personal jurisdiction turns on disputed facts, the trial court’s findings of fact are reviewed for clear error. Id.

Indiana Trial Rule 4.4(A) serves as Indiana’s long-arm jurisdiction provision. Id. This provision extends to the limits of the United States Constitution; therefore, analysis of personal jurisdiction is reduced “to the issue of whether the exercise of personal jurisdiction is consistent with the Federal Due Process Clause.” Id. at 967.

The Due Process Clause of the Fourteenth Amendment requires that before a state may exercise jurisdiction over a defendant, the defendant must have “certain minimum contacts with [the state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.”’ Int'l Shoe Co. v. Wash., 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). If the defendant’s contacts with the state are so “continuous and systematic” that the defendant should reasonably anticipate being haled into the courts of that state for any matter, then the defendant is subject to general jurisdiction, even in causes of action unrelated to the defendant’s contacts with the forum state. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415 n. 9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).
If the defendant’s contacts with the forum state are not “continuous and systematic,” specific jurisdiction may be asserted if the controversy is related to or arises out of the defendant’s contacts with the forum state. Id. at 414 & n. 8, 104 S.Ct. 1868. Specific jurisdiction requires that the defendant purposefully availed itself of the privilege of conducting activities within the forum state so that the defendant reasonably anticipates being haled into court there. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). A single contact with the forum state may be sufficient to establish specific jurisdiction over a defendant, if it creates a “substantial connection” with the forum state and the suit is related to that connection. McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). But a defendant cannot be haled into a jurisdiction “solely as a result of random, fortuitous, or attenuated contacts or of the unilateral activity of another party or a third person.” Burger King, 471 U.S. at 475, 105 S.Ct. 2174 (internal quotation marks omitted) (citing Helicopteros, 466 U.S. at 417, 104 S.Ct. 1868; Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 299, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)).

Id.

Sebring concedes that NCI is not subject to general jurisdiction in Indiana; however, Sebring argues that there is specific jurisdiction pursuant to North Texas Steel Company, Inc. v. R.R. Donnelley & Sons Co., 679 N.E.2d 513 (Ind.Ct.App.1997) trans. denied, cert. denied (1998). In that case, R.R. Donnelley (“RRD”) entered into a contract with Associated Material Handling Industries, an Illinois corporation, for a material handling system including storage racks, sophisticated forklifts, conveyors, and other related equipment for RRD’s facility in Warsaw, Indiana. Associated Material Handling subcontracted the storage rack design and manufacture to Frazier Industrial Company, a New Jersey corporation, which contracted with NTS, a Texas corporation, to fabricate the rack system according to Frazier’s design. After completing the rack system, NTS shipped it to RRD’s Warsaw facility at Frazier’s expense. A few months after the racks were installed, they collapsed and damaged the products stored on the racks.

RRD filed suit against Associated Material Handling, Frazier, and NTS. NTS filed a motion to dismiss for lack of personal jurisdiction, which the trial court denied. On appeal, we agreed that the trial court had specific personal jurisdiction over NTS:

NTS specifically manufactured the rack system for a corporation located in Indiana and then shipped that system to Indiana. The acts of manufacturing and shipping were done with the knowledge that the system was for use by RRD in Indiana. The evidence does not indicate that NTS was a “local” company which “happened” to expand its business into Indiana. Instead, the evidence indicates NTS had a twelve year relationship with Frazier, a New Jersey company. Pursuant to this relationship, Frazier provided NTS with customers for rack systems, including four customers in Indiana. NTS, through its relationship with Frazier, purposely availed itself of the privilege of conducting business in Indiana, and it cannot complain that jurisdiction is being asserted by an Indiana court upon the basis of a “random, fortuitous, or attenuated” contact with the state.

Id. at 519.

NCI argues that North Texas Steel is distinguishable and that the rationale of that case has been eroded by more recent eases from the Indiana Supreme Court and the Supreme Court of the United States. First, NCI argues that, unlike the manufacturer in North Texas Steel, NCI was not responsible for shipping the product to Indiana. The purchase order indicated that the shipment would be “F.O.B. Cleburne, TX.” Appellant’s App. at 80. NCI asserts, and Sebring does not dispute, that the contract between NCI and Donaldson would most likely be governed by the law of Texas or Kentucky, both of which have adopted the Uniform Commercial Code (“UCC”). Pursuant to UCC Section 2-319, “F.O.B. the place of shipment” means that the seller must place the goods in the possession of the carrier at that place. See Tex. Bus. & Com.Code Ann. § 2.319(a)(1); Ky.Rev.Stat. Ann. § 355.2-319(l)(a). Thus, NCI argues that “Donaldson took possession of the goods in Texas upon NCI’s tender of delivery to the carrier, and it was Donaldson that transported the goods into Indiana, using its chosen carrier.” Appellee’s Br. at 11. NCI further argues that, although NCI was aware that Donaldson planned to ship the screw conveyor to Indiana, once NCI tendered the product to the carrier, Donaldson could have redirected the shipment anywhere it wanted.

Based on the affidavit of NCI’s president, it appears that the decision to ship the screw conveyor to Indiana was made unilaterally by Donaldson. NCI’s ordinary practice was to ship goods to Donaldson’s plant in Kentucky. The screw conveyor was shipped to Indiana only because Donaldson wanted to expedite the delivery to its customer, OmniSource. In sum, it appears that NCI played no role in the decision to ship the screw conveyor to Indiana and its involvement in the transaction was complete when it tendered the screw conveyor to the carrier in Texas. Although Sebring characterizes NCI as the shipper of the screw conveyor, it does not appear to dispute any of the factual statements in the affidavit nor NCI’s interpretation of the term “F.O.B. the place of shipment.”

Relying primarily on LinkAmerica and J. McIntyre Machinery, Ltd. v. Nicastro, — U.S. -, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011), NCI also argues that the reasoning of North Texas Steel has been undermined since that case was decided in 1997. In LinkAmerica, an Indiana resident, William Cox, entered into an agreement with Hi-Cube Express in which Cox purchased a semi-tractor from Hi-Cube and leased it back to Hi-Cube. Hi-Cube later terminated the lease and repossessed the truck. Cox sued Hi-Cube and later attempted to add Hi-Cube’s parent corporation, LinkAmeriea, as a defendant. Lin-kAmerica was an Oklahoma corporation and had no direct involvement in the transaction between Cox and Hi-Cube. Lin-kAmerica filed a motion to dismiss for lack of personal jurisdiction, which the trial court denied. Our supreme court reversed. The supreme court’s analysis started “with the presumption that a parent and a subsidiary are independent entities and a subsidiary’s contacts with the forum are not attributed to the parent corporation for jurisdictional purposes.” LinkAmeriea, 857 N.E.2d at 968.

Overcoming this presumption requires clear evidence that either: (1) the parent utilizes its subsidiary in such a manner that an agency relationship can be perceived; (2) the parent has greater control over the subsidiary than is normally associated with common ownership and directorship; or (3) the subsidiary is merely an “empty shell.”

Id. In the instant case, Sebring did not have to overcome a presumption against jurisdiction, and we conclude that Lin-kAmerica is not sufficiently analogous to provide guidance.

In J. McIntyre, Robert Nicastro, who worked in New Jersey, injured his hand while using a metal-shearing machine manufactured by a British company, J. McIntyre. Nicastro filed a products liability suit against J. McIntyre in New Jersey. J. McIntyre argued that it was not subject to personal jurisdiction in New Jersey. The Supreme Court of New Jersey found that personal jurisdiction existed, relying primarily on the following three facts:

(1) [J. McIntyre’s] American Distributor on one occasion sold and shipped one machine to a New Jersey customer, namely, Mr. Nicastro’s employer, Mr. Curcio; (2) the British Manufacturer permitted, indeed wanted, its independent American Distributor to sell its machines to anyone in America willing to buy them; and (3) representatives of the British Manufacturer attended trade shows in such cities as Chicago, Las Vegas, New Orleans, Orlando, San Diego, and San Francisco.

J. McIntyre, 131 S.Ct. at 2791 (Breyer, J., concurring) (quotation omitted). The Supreme Court of New Jersey held that its courts “can exercise jurisdiction over a foreign manufacturer of a product so long as the manufacturer knows or reasonably should know that its products are distributed through a nationwide distribution system that might lead to those products being sold in any of the fifty states.” Id. at 2785 (quotation omitted). A plurality consisting of Justice Kennedy, Chief Justice Roberts, Justice Scalia, and Justice Thomas rejected that holding and held that New Jersey did not have personal jurisdiction over J. McIntyre. Justice Breyer, joined by Justice Alito, concurred in the judgment, but disagreed with the plurality’s analysis.

When a fragmented court decides a case and no single rationale explaining the result enjoys the assent of five Justices, “the holding of the court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). NCI asserts that Justice Breyer’s opinion is the narrowest ground for the decision, and Sebring likewise focuses his analysis on Justice Breyer’s opinion.

Justice Breyer felt that the plurality opinion introduced a new, strict rule that limited jurisdiction when the defendant does not intend to submit to the power of a sovereign and cannot be said to have targeted the forum. J. McIntyre, 131 S.Ct. at 2793 (Breyer, J., concurring) (citing the plurality opinion at page 2788). Justice Breyer felt that the case could be resolved by applying existing precedent:

None of our precedents finds that a single isolated sale, even if accompanied by the kind of sales effort indicated here, is sufficient. Rather, this Court’s previous holdings suggest the contrary. The Court has held that a single sale to a customer who takes an accident-causing product to a different State (where the accident takes place) is not a sufficient basis for asserting jurisdiction. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). And the Court, in separate opinions, has strongly suggested that a single sale of a product in a State does not constitute an adequate basis for asserting jurisdiction over an out-of-state defendant, even if that defendant places his goods in the stream of commerce, fully aware (and hoping) that such a sale will take place. See Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U.S. 102, 111, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (opinion of O’Connor, J.) (requiring “something more” than simply placing “a product into the stream of commerce,” even if defendant is “awar[e]” that the stream “may or will sweep the product into the forum State”); id., at 117, 107 S.Ct. 1026 (Brennan, J., concurring in part and concurring in judgment) (jurisdiction should lie where a sale in a State is part of “the regular and anticipated flow” of commerce into the State, but not where that sale is only an “edd[y],” i.e., an isolated occurrence); id., at 122, 107 S.Ct. 1026 (Stevens, J., concurring in part and concurring in judgment) (indicating that “the volume, the value, and the hazardous character” of a good may affect the jurisdictional inquiry and emphasizing Asahi’s “regular course of dealing”).
Here, the relevant facts found by the New Jersey Supreme Court show no “regular ... flow” or “regular course” of sales in New Jersey; and there is no “something more,” such as special state-related design, advertising, advice, marketing, or anything else. Mr. Nicastro, who here bears the burden of proving jurisdiction, has shown no specific effort by the British Manufacturer to sell in New Jersey. He has introduced no list of potential New Jersey customers who might, for example, have regularly attended trade shows. And he has not otherwise shown that the British Manufacturer “purposefully avail[ed] itself of the privilege of conducting activities” within New Jersey, or that it delivered its goods in the stream of commerce “with the expectation that they will be purchased” by New Jersey users. Worldwide Volkswagen, supra, at 297-298, 100 S.Ct. 559 (internal quotation marks omitted).

Id. at 2792.

However, Justice Breyer did agree with the plurality that the approach taken by the New Jersey Supreme Court was inappropriate:

But though I do not agree with the plurality’s seemingly strict no-jurisdiction rule, I am not persuaded by the absolute approach adopted by the New Jersey Supreme Court and urged by respondent and his amici. Under that view, a producer is subject to jurisdiction for a products-liability action so long as it “knows or reasonably should know that its products are distributed through a nationwide distribution system that might lead to those products being sold in any of the fifty states.” [Nicastro v. McIntyre Mach. Am., Ltd., 201 N.J. 48, 987 A.2d 575, 592 (2010)] (emphasis added). In the context of this case, I cannot agree.
For one thing, to adopt this view would abandon the heretofore accepted inquiry of whether, focusing upon the relationship between “the defendant, the forum, and the litigation,” it is fair, in light of the defendant’s contacts with that forum, to subject the defendant to suit there. Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) (emphasis added). It would ordinarily rest jurisdiction instead upon no more than the occurrence of a product-based accident in the forum State. But this Court has rejected the notion that a defendant’s amenability to suit “travel[s] with the chattel.” World-Wide Volkswagen, 444 U.S., at 296, 100 S.Ct. 559.

Id. at 2793 (Breyer, J., concurring).

Sebring argues that “[a]ll that can be said about the J. McIntyre Machinery, LTD decision is that Nicastro did not meet his burden of proof in establishing specific jurisdiction.” Appellant’s Reply Br. at 4. However, Sebring acknowledges that the reason that Justice Breyer found that Ni-castro had not met his burden of proof was because he “felt that something more than simply placing a product into the stream of commerce was required for specific jurisdiction to exist.” Id. at 5. Sebring argues that the “something more” in this case is that NCI had “actual knowledge” that it “was designing, manufacturing, assembling, performing test runs and quality control as well as approving and preparing a screw conveyer that was for use by an Indiana company.” Id. However, mere knowledge that a product would end up in a particular state after being placed in the stream of commerce does not resemble any of the examples that Justice Breyer provided of “something more,” such as a state-specific design, advertising, or advice. J. McIntyre, 131 S.Ct. at 2792. Furthermore, as discussed above, all of NCI’s actions relating to this case took place within Texas, the decision to ship the product to Indiana was made by Donaldson, and Donaldson took responsibility for sending the product to Indiana. We cannot agree that NCI did “something more” than placing the screw conveyor in the stream of commerce. Therefore, we affirm the judgment of the trial court.

Affirmed.

BAKER, J., and MATHIAS, J., concur.

      . "F.O.B." stands for "free on board.” The meaning and import of this term is explained in more detail in the "Discussion and Decision” section of this opinion, infra.

      . Federal courts have held that when they are exercising diversity jurisdiction, the burden of proof is on the party seeking to invoke the jurisdiction of the federal court. Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 n. 11 (7th Cir.2003). By contrast, Indiana courts have stated that the party challenging jurisdiction bears the burden of proof. See, e.g., N. Tex. Steel, 679 N.E.2d at 519. These cases appear to stem from Weenig v. Wood, 169 Ind.App. 413, 420-21, 349 N.E.2d 235, 240-41 (1976). The Weenig court's reasoning was based on Indiana Trial Rule 8(C), which lists lack of jurisdiction as an affirmative defense and states that the defendant bears the burden of proving an affirmative defense. The court also based its reasoning on the fact that Indiana trial courts (unlike federal courts) are courts of general jurisdiction and jurisdiction is presumed. Id. at 419, 349 N.E.2d at 240.
      In Anthem Insurance Companies, Inc. v. Tenet Healthcare Corp., 730 N.E.2d 1227 (Ind.2000), our supreme court took a more nuanced approach to the burden of proof. At that time, Indiana Trial Rule 4.4 listed specific bases for exercising personal jurisdiction over a non-resident. Id. at 1232. Thus, courts applied a two-step process: "First, the court must determine if the defendant’s contacts with the forum state fall under the long-arm statute. Second, if they do, the court must then determine whether the defendant’s contacts satisfy federal due process analysis.” Id. When discussing application of the Indiana Trial Rules, Anthem stated that when the defendant raises the issue of personal jurisdiction, the plaintiff "must present evidence to show that there is personal jurisdiction over the defendant,” but the burden of proving the lack of personal jurisdiction by a preponderance of the evidence remains on the defendant. Id. at 1231. When discussing the constitutional prong of the analysis, Anthem stated that the plaintiff must establish that the defendant has sufficient minimum contacts with the state, and then the defendant bears the burden of proving that asserting jurisdiction is unfair and unreasonable. Id. at 1237 (citing Burger King, 471 U.S. at 477, 105 S.Ct. 2174).
      In 2003, Indiana Trial Rule 4.4(A) was amended to extend to the limits of the United States Constitution, rather than a finite list of circumstances. LinkAmerica, 857 N.E.2d at 967. Thus, LinlcAmerica concluded that the 2003 amendment "was intended to, and does, reduce analysis of personal jurisdiction to the issue of whether the exercise of personal jurisdiction is consistent with the Federal Due Process Clause.” Id. Therefore, LinkAmerica proceeded directly to analysis of federal due process and did not mention the rule from the Weenig line of cases that the defendant bears the burden of proving the lack of jurisdiction.
      Although some Indiana cases continue to state that the party challenging jurisdiction bears the burden of proof, see, e.g., Foley v. Schwartz, 943 N.E.2d 371, 378-79 (Ind.Ct.App.2011) trans. denied, those cases appear to overlook the fact that Anthem applied the same standard as federal cases when analyzing the constitutional issue — the only prong of the analysis that is still pertinent. However, we acknowledge that Indiana Trial Rule 8(C) still purports to place the burden on the defendant.
      Neither party has discussed the applicable burden of proof in this case. However, we believe that the undisputed evidence in this case demonstrates that we do not have jurisdiction regardless of which party bore the burden of proof.


author: MAY, Judge.

text:
    Virgil D. CORNELIOUS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1206-CR-335.
    Court of Appeals of Indiana.
    April 9, 2013.

      David Becsey, Zeigler Cohen & Koch, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Eric Babbs, Deputy Attorneys General, Indianapolis, In, for Attorneys for Appellee.
   OPINION

MAY, Judge.

Virgil Cornelious appeals his conviction of Class B felony aggravated battery and the twenty-year sentencing enhancement based on his adjudication as an habitual offender. He presents two issues for our review:

1. Whether the State presented sufficient evidence he committed Class B felony aggravated battery; and
2. Whether the trial court abused its discretion when it enhanced Cornelious’ sentence by twenty years based on his adjudication as an habitual offender.

We affirm.

FACTS AND PROCEDURAL HISTORY

On January 29, 2012, Rico Vaughn and his friend, Tinika Johnson, drove to Monica Finch’s house to deliver cigarettes. Vaughn entered Finch’s house, and Johnson remained in the car. Vaughn saw Haley Gonzalez sleeping. Gonzalez owed him money, so Vaughn tapped Gonzalez in an attempt to wake her. Cornelious told Vaughn not to touch Gonzalez. Vaughn and Cornelious exchanged words, and Cor-nelious stood up and pulled out a knife. Vaughn asked Cornelious why he was brandishing a knife, and Cornelious responded that Vaughn now owed Cornelious money because Vaughn had touched Gonzalez.

Vaughn tried to leave, but Cornelious was standing near the door. Vaughn bumped into Cornelious as he left, and then the two fought until Vaughn realized he was bleeding because Cornelious had stabbed him. At the hospital, Vaughn was treated for cuts on his hand, nose, face, neck, and arm. His injuries required over 200 stitches and staples.

The State charged Cornelious with Class B felony aggravated battery, and later alleged Cornelious was an habitual offender. A jury found Cornelious guilty of aggravated battery, and Cornelious admitted he was an habitual offender. The trial court imposed a thirty-year sentence: ten years for aggravated battery, enhanced by twenty years for his status as an habitual offender.

DISCUSSION AND DECISION

1. Sufficiency of the Evidence

When reviewing the sufficiency of the evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the decision. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). It is the fact-finder’s role, and not ours, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Id. To preserve this structure, when we are confronted with conflicting evidence, we consider it most favorably to the verdict. Id. We affirm a conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence; rather, the evidence is sufficient if an inference reasonably may be drawn from it to support the verdict. Id. at 147.

To prove Cornelious committed Class B felony aggravated battery, the State was required to present evidence he “knowingly or intentionally inflict[ed] injury on a person that create[d] a substantial risk of death or cause[d]: (1) serious permanent disfigurement; [or] (2) protracted loss or impairment of the function of a bodily member or organ[.]” Ind.Code § 35-42-2-1.5. The State alleged Cornelious inflicted “multiple severe lacerations to the face and/or neck and/or the severance of part of [Vaughn’s] nose,” causing “serious, permanent disfigurement.” (App. at 28.)

Cornelious argues “his conviction for [sic] aggravated battery rested on insufficient evidence” because while Vaughn’s injuries were serious, “the evidence failed to show that he was placed in a condition of a substantial risk of death or that his wounds left him with serious permanent disfigurement or a protracted loss or impairment of the function of a bodily member or organ.” (Br. of Appellant at 3.) At trial, Vaughn testified about the impact of his injuries:

[State]: Have the injuries to your face, neck, and nose cause [sic] you some concern at this point?
[Vaughn]: Yeah, but I never — never had this kind of damage to my face. I don’t even — I cut my — I usually wear a beard now.
[State]: Why?
[Vaughn]: Because of [the] scar that’s on my face. I kind of like — I’m ashamed of it, or — like I said, I ain’t never been through nothing like this, so when I see the scar in the mirror, it kind of mess[es] with me mentally.

(Tr. at 49.)

The element that distinguishes aggravated battery from battery is the nature of the injury caused by the touching. Salone v. State, 652 N.E.2d 552, 559 (Ind.Ct.App.1995), reh’g denied, trans. denied. Cornelious concedes Vaughn was seriously injured in the altercation, but he argues “that alone does not prove serious permanent disfigurement ... necessary to convict for aggravated battery.” (Br. of Appellant at 6.)

We have defined “permanent” as “continuing or enduring without fundamental or marked change[,]” and “disfigure” as: “to make less complete, perfect or beautiful in appearance or character: deface, deform, mar.” James v. State, 755 N.E.2d 226, 230 (Ind.Ct.App.2001) (citing Webster’s International Dictionary), trans. denied. In James, we held the serious permanent injury required by Ind.Code § 35-42-2-1.5 existed when the injured officer testified he lost teeth during an altercation with James: “[although he was fitted with fake teeth, he continues to have a large hole in his gum line and has lost several of his original teeth.” James, 755 N.E.2d at 230. We noted the officer had “suffered disfigurement of his mouth that will last indefinitely” and held that evidence was “sufficient to establish permanent disfigurement.” Id.

Sufficient evidence demonstrated Vaughn suffered serious permanent disfigurement. The cut to Vaughn’s face was approximately twelve inches long and almost one inch deep. Vaughn testified he wore a beard to hide the scar, and it “mess[ed] with him mentally” when he looked in the mirror. (Tr. at 49.) Based on the definition we adopted in James, we conclude Vaughn’s injuries resulted in serious permanent disfigurement.

2. Habitual Offender Enhancement

The trial court pronounced a thirty-year sentence — ten years for Class B felony aggravated battery, enhanced by twenty years because Cornelious’ adjudication as an habitual offender. Cornelious challenges only the habitual offender enhancement. The sentence enhancement based on a finding a person is an habitual offender is left to the trial court’s sound discretion. Johnston v. State, 578 N.E.2d 656, 659 (Ind.1991). Pursuant to Ind.Code § 35-50-2-8(h):

The court shall sentence a person found to be a habitual offender to an additional fixed term that is not less than the advisory sentence for the underlying offense nor more than three (3) times the advisory sentence for the underlying offense. However, the additional sentence may not exceed thirty (30) years.

“Aside from setting the parameters regarding the length of a habitual offender enhancement, the relevant statutes contain no guidelines or formulas for courts to apply or follow when determining the length of the habitual offender enhancement.” Montgomery v. State, 878 N.E.2d 262, 268 (Ind.Ct.App.2007).

The advisory sentence for a Class B felony is ten years. Ind.Code § 35-50-2-5. The trial court enhanced Cornelious’ sentence by twenty years, or two times the advisory sentence for a Class B felony. Additionally, Cornelious’ criminal activities began in 1988 when he was a juvenile, and he has five felony convictions of crimes such as rape, child molesting, and criminal recklessness; he has also violated probation. As the trial court acted within the confínes of the statute and Cornelious has an extensive criminal record, we conclude it did not abuse its discretion when it enhanced Cornelious’ ten year sentence by twenty years based on his adjudication as an habitual offender. See, e.g., Montgomery, 878 N.E.2d at 268 (trial court did not abuse its discretion in imposing maximum habitual offender enhancement in light of Montgomery’s criminal history).

CONCLUSION

The State presented sufficient evidence Cornelious committed Class B felony aggravated battery because Vaughn’s injuries resulted in serious permanent disfigurement. Additionally, the trial court did not abuse its discretion when it enhanced Cornelious’ sentence by twenty years based on his adjudication as an habitual offender. Accordingly, we affirm.

Affirmed.

NAJAM, J., and BARTEAU, Sr. J., concur.

      . Ind.Code § 35-42-2-1.5.

      . Ind.Code § 35-50-2-8.

      . We heard oral argument March 13, 2013, at Vincennes University. We thank the University for inviting us, the University staff for their hospitality, and counsel for their excellent advocacy.

      . Regarding his sentence, Cornelious argues his sentence does not comport with the Indiana Constitution’s proclaimed purpose of the penal code: "The penal code shall be founded on the principle of reformation, and not of vindictive justice.” Ind. Const. Art. 1 § 18. However, it is well-settled "Section 18 applies only to the penal code as a whole and not to individual sentences.” Lindsey v. State, 888 N.E.2d 319, 322 (Ind.Ct.App.2008), trans. denied. Further, we have long held an habitual offender sentencing enhancement is not unconstitutional under Ind. Const. Art. 1 § 18. Funk v. State, 427 N.E.2d 1081, 1086 (Ind.1981).


author: BARTEAU, Senior Judge.

text:
    TPUSA, INC., Appellant-Defendant, v. UNEMPLOYMENT INSURANCE APPEALS OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT, Appellee-Plaintiff.
    No. 93A02-1207-EX-605.
    Court of Appeals of Indiana.
    April 18, 2013.

      Thomas Deer, Todd Kaiser, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Elizabeth Rogers, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARTEAU, Senior Judge.

STATEMENT OF THE CASE

TPUSA Inc. appeals the liability administrative law judge’s (“LALJ”) determination that TPUSA owes $125,666.33 to the Indiana Department of Workforce Development (“Department”).

We reverse and remand.

ISSUE

TPUSA presents five issues, which we consolidate into a single dispositive issue: whether the LALJ erred by determining that TPUSA owes $125,666.33 in unemployment insurance contributions, interest, and penalties for 2010 when TPUSA had no employees in Indiana in 2010 and paid no wages in Indiana in 2010.

FACTS AND PROCEDURAL HISTORY

TPUSA owns and manages call centers around the country. It is owned by Telep-erformance Group Inc., a Florida holding company. In 2009, TPUSA operated a call center in Fishers, Indiana. After September 30, 2009, TPUSA no longer had employees in Indiana, and the Fishers facility officially closed on October 31, 2009. TPUSA made contributions to the Department for unemployment insurance for its employees until the facility closed. TPU-SA submitted its 2009 fourth quarter wage report showing that it had no employees and had paid no wages. Having no operations or employees in the State of Indiana in 2010, TPUSA did not file any quarterly payroll reports with the Department for that year.

The Department sent a notice (“Penalty Letter”) to TPUSA on March 21, 2011, informing TPUSA that it had failed to submit payroll reports for 2010 and instructing that it file all reports or have its account subject to estimation of its overdue unemployment insurance contributions. Receiving no response to the Penalty Letter, the Department sent another notice (“Notice and Demand Letter”) to TPUSA on April 26, 2011, notifying TPU-SA of the estimation amount that had been placed on its account. The Department’s estimation of TPUSA’s overdue unemployment insurance contributions, plus interest and penalties, totaled $125,666.33. TPU-SA protested this assessment on November 18, 2011.

On June 11, 2012, a liability hearing was held before the LALJ. The first issue upon which the parties presented evidence was the timeliness of TPUSA’s protest. On this issue, the LALJ found:

With regard to an issue of the timeliness of the filing of a protest, the burden of proof lies with the Department. The Liability Administrative Law Judge finds that the Department has failed to conclusively establish, by introduction of a copy of the four Notice and Demands, the date on the face of the Notice and Demands, or that appeal rights were communicated to the employer. Therefore, Liability Administrative Law Judge finds the employer’s protest to be timely under the circumstances.

Appellant’s App. p. 8. Although the LALJ determined that TPUSA’s protest was timely filed, it denied the protest and found the Department’s estimation of contributions and assessment of interest and penalties to be proper. It is from this decision that TPUSA appeals.

DISCUSSION AND DECISION

TPUSA contends that the LALJ erred in its determination that, although TPUSA had no Indiana employees and paid no Indiana wages for 2010, it owes unemployment insurance contributions for 2010, plus interest and penalties totaling $125,666.33. The Indiana Unemployment Compensation Act provides that any decision of the LALJ shall be conclusive and binding as to all questions of fact. See Ind.Code § 22-4-32-9(a) (1995). When the LALJ’s decision is challenged as contrary to law, we are limited to a two-part inquiry into the sufficiency of the facts found to sustain the decision and the sufficiency of the evidence to sustain the findings of fact. UTLX Mfg., Inc. v. Unemployment Ins. Appeals of Ind. Dep’t. of Workforce Dev., 906 N.E.2d 889, 891-92 (Ind.Ct.App.2009); see Ind.Code § 22-4-32-12 (1990). Pursuant to this standard, basic facts are reviewed for substantial evidence, conclusions of law are reviewed for their correctness, and ultimate facts are reviewed to determine whether the LALJ’s finding is a reasonable one. UTLX Mfg., 906 N.E.2d at 892. Ultimate facts are conclusions or inferences from the basic facts. Id.

Indiana’s unemployment compensation system is in place to protect against economic insecurity due to unemployment. Ind.Code § 22-4-1-1 (1995). This system is administered by the Department, see Ind.Code § 22-4-18-1 (b)(1) (2007), and is funded by imposing a tax, referred to as a “contribution,” on employers of this state. Ind.Code §§ 22-4-10-1 (2009), 22-4-2-4 (1987). Contributions are determined based upon a percentage of wages paid in a calendar year. Ind.Code §§ 22-4-10-3 (2009), -1.

Every employer that is subject to Indiana Code article 22^1 must file quarterly contribution reports and wage reports. 646 Ind. Admin. Code 3-1-1 (1994). Where the status of an employer is changed by cessation, the employer shall immediately notify the Department and immediately file the necessary contribution and wage reports. 646 Ind. Admin. Code 3-l-6(a) (1994). Reports dealing with the quarter in which the employer’s change of status occurred shall be marked “final report.” Id.

In the present case, TPUSA did not mark its fourth quarter 2009 report as “final report,” and it did not file any reports with the Department in 2010. It also did not notify the Department that it had ceased operations in Indiana. Thus, the Department, unaware that TPUSA had ceased doing business and paying wages in Indiana, expected to continue to receive quarterly contribution and wage reports from TPUSA. Therefore, when the Department did not receive the required reports, it followed the course of action as outlined in the applicable statutes.

First, Indiana Code section 22-4-19-9 (2001) mandates that a written notice (Penalty Letter) be mailed to the employer if it fails to submit any payroll report required under the unemployment compensation system statutes. The Penalty Letter informs the employer that it must file all reports within ten days or have its account subject to estimation. If, after ten days, the employer fails to file a report, an estimation is made of the amount of the contribution due from the employer, and this amount is considered prima facie correct. Id.

Once an estimation is placed on an employer’s account, the Department must notify the employer via a Notice and Demand Letter. Ind.Code § 22-4-ll-4(a) (2002). The employer then has fifteen days in which to file a report in order to establish the correct amount it owes to the Department. Id. If the employer does not file a report within this time period, the Department uses its estimation amount, and this amount generally may not be reduced even upon subsequently ascertained information. Id. Further, the estimation amount is considered prima facie correct. Id. In addition to the estimation amount, Indiana Code section 22-4-29-1 (1995) permits the calculation of penalties and interest upon delinquent contributions. If certain criteria are met, however, subsection (b) of Indiana Code section 22^-11^ does allow for a reduction of the estimated amount of contribution based upon subsequently ascertained information. These criteria are: (1) the employer makes an affirmative showing of “reasonable cause” for the failure to timely file any payroll report, and (2) the employer submits accurate and reliable payroll reports. Id.

Here, the Department sent a Penalty Letter to TPUSA on March 21, 2011. The Department nevertheless received no reports from TPUSA, so the Department placed an estimation on TPUSA’s account. Subsequently, on April 26, 2011, the Department sent Notice and Demand Letters to TPUSA, to which TPUSA did not respond. The Department then used its estimation of contributions owed, plus interest and penalties, to arrive at $125,666.33.

At the hearing, TPUSA introduced Exhibit 4, which shows that for the fourth quarter of 2009, TPUSA paid no wages in Indiana and had no employees in the state. Appellant’s App. pp. 85, 86. In addition, Christina Miller, Reporting Manager at TPUSA, testified at the hearing on behalf of her employer. She stated that in 2009, TPUSA’s finance and payroll department was split into two departments with one department located on the East Coast and one department located on the West Coast. Miller testified that the East Coast operation was handling payroll notifications at the time, and by the time the two departments were consolidated into the West Coast operation, the Indiana site had been officially closed, and she had no reason to believe that everything had not been taken care of. Miller was not aware that TPU-SA’s unemployment insurance tax account in Indiana was still active until September 2011 when she received a notice from the Department. She further testified that until she received this notice, she had not been made aware of any delinquency or any Notice and Demand Letters. After receiving the notice, TPUSA protested the $125,666.33 assessment.

When questioned about the certified mail return receipts from the Notice and Demand Letters mailed by the Department on April 26, 2011, Miller testified that she had since researched the signature on the receipts and had discovered that they were signed for by a receptionist in Columbus, Indiana on April 29, 2011. However, Miller never received any letters. Further investigation showed the letters were sent to the human resources department in Columbus which sent them on to another department, but no one could verify where the letters were sent or to whom, and no one had any record or copies of the letters.

Jennifer Chappel, Director of Unemployment Insurance Tax Administration with the Department, testified that reasonable cause, as provided for in Indiana Code section 22-4-ll-4(b), is defined as acts of God, nature, war or terrorism, death or incapacitation of an owner/preparer, or theft or embezzlement by a fiduciary of the company.

In finding for the Department, the LALJ determined:

Ind.Code § 22-4-11-4 (2011) [sic] requires an estimate of contributions if the employer fails to file a quarterly report. The estimate is considered prima facie correct in the absence of an affirmative showing of “reasonable cause” for failure to file a timely payroll report and provide accurate records. The Department interprets “reasonable cause” as extreme circumstances. Merely failing to notify the Department that the employer is out of business does not fall within the Department’s interpretation. Although the Department’s interpretation appears harsh concerning employers who no longer do business in the state and have to pay contributions, interest and penalties when there was no payroll, the statute requires the Department to take certain actions when an employer stops paying contributions without explanation. The Department has the authority to make estimations and charge interest and penalties] and there is no requirement that the Department take a “soft” approach in defining “reasonable cause.”

Appellant’s App. pp. 8-9.

In the present case, it is uncontested that TPUSA timely filed accurate reports with the Department showing that it had paid no wages and that it had no employees for the fourth quarter of 2009. In addition, the Department does not contest that TPUSA’s Fishers facility ceased operations in 2009 and had no employees and paid no wages in 2010. It is undisputed then, given these facts, that although TPUSA failed to mark its fourth quarter 2009 reports “final report,” it had no continuing obligation to pay further unemployment insurance contributions to the Department.

Therefore, we hold that where an employer has ceased business operations in Indiana, no longer pays wages or has any employees in the state, and files accurate reports with the Department indicating such, this may be considered “reasonable cause,” as required by Indiana Code section 22^1-1 l-4(b), so as to allow for an adjustment (i.e., reduction) in the amount of the estimated contribution.

Based upon the facts of this case, we find that the evidence shows that TPUSA demonstrated reasonable cause and that the Department erroneously assessed past due unemployment insurance contributions, together with interest and penalties. To hold otherwise under these facts would produce an absurdity whereby a business would be required to pay more than $125,000.00 on an account upon which it owed nothing. Moreover, we are mindful of the possible far-reaching effect of such a holding in thwarting businesses from opening new or maintaining existing operations within our state.

More appropriate action in these circumstances is provided for in Indiana Code section 22-4-19-10 (1995), which provides that an employer that negligently or willfully fails to submit any report required for proper administration of Indiana Code article 22-4 shall be assessed a penalty of $25.00. As we previously stated, because TPUSA failed to mark “final report” on its fourth quarter 2009 reports, the Department was unaware of its cessation of business in Indiana. Thus, quarterly reports were required to be filed with the Department by TPUSA for each quarter of 2010 until the Department was notified of TPUSA’s cessation of business in the state. See 646 Ind. Admin. Code 3-1-1, -6. Two reports are required each quarter. See 646 Ind. Admin. Code 3-1-1. A calculation of TPUSA’s fines for failing to file quarterly reports in 2010 is $200. Pursuant to our finding of reasonable cause under Indiana Code section 22-4-ll^l(b), the Department’s assessment against TPUSA for overdue estimated contributions, interest, and penalties in the amount of $125,666.33 is reduced to $200 in fines.

CONCLUSION

For the reasons stated, we conclude that the LALJ erred by determining that TPUSA owes $125,666.33 in unemployment insurance contributions, interest, and penalties for 2010 when TPUSA had no employees in Indiana in 2010 and paid no wages in Indiana in 2010.

Reversed and remanded.

BAKER, J., and PYLE, J., concur.