author: Robb, Judge.

text:
    Scott RANDALL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 49A02-1708-CR-1779
    Court of Appeals of Indiana.
    FILED April 26, 2018
    Attorneys for Appellant: Ruth Johnson, Deborah Markisohn, Rory Gallagher, Marion County Public Defender, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Caryn N. Szyper, Deputy Attorney General, Indianapolis, Indiana
   Robb, Judge.

Case Summary and Issues

[1] Scott Randall brings this interlocutory appeal from the trial court's denial of his motion to suppress evidence resulting from a police officer's observations while conducting a welfare check. The trial court concluded the welfare check was supported by the community caretaking function. Randall now appeals presenting three issues which we restate as: (1) whether the trial court erroneously applied the community caretaking function; (2) whether Randall's seizure was reasonable under the Fourth Amendment to the United States Constitution and Article 1, Section 11, of the Indiana Constitution ; and (3) whether Randall's statements were made in violation of Miranda . Concluding the trial court erroneously applied the community caretaking function but that Randall's seizure was reasonable under both the Fourth Amendment and Article 1, Section 11 pursuant to the emergency aid doctrine, and that Randall's statements were not made in violation of Miranda , we affirm.

Facts and Procedural History

[2] Around 9:00 p.m. on July 29, 2016, Deputy Ashley Rose, a special deputy of the Marion County Sheriff's Office performing off-duty security work for St. Vincent's Hospital, was patrolling the same-day surgery parking lot when he observed a man sitting in the driver's seat of a black Ford Focus with the driver's door open and ignition off. The man, later identified as Randall, "appeared to be leaning forward over the steering wheel" or "slumped over." Transcript, Volume 1 at 10-11.

[3] Deputy Rose decided to conduct a "welfare check" and proceeded to pull behind Randall's car while activating his "overhead takedown lights." Id. at 10. As soon as Deputy Rose put his car in park, "Randall abruptly exited his vehicle and started walking toward my vehicle at a fast pace." Id. at 10. Deputy Rose ordered Randall back to his car and Randall obliged, returning to the driver's seat of his car. Deputy Rose then approached Randall's car and began speaking with him while the driver's door was still open. During this time, Deputy Rose observed that Randall was speaking quickly, "sweating very intensely," and that he began "reaching around the car very nervously." Id. at 12. Deputy Rose also observed a "folded square of aluminum foil" on the dashboard of the car, which he believed to be consistent with narcotic use. Id.

[4] Suspecting drugs were in the car, Deputy Rose attempted to "find out what else would be in the vehicle that would be paraphernalia or narcotics related." Id. at 14. Specifically, Deputy Rose told Randall that he "had experience and I asked him what else in the vehicle he would not want a canine officer to find." Id. at 17. Randall admitted that he had a marijuana pipe, and Deputy Rose then instructed him to exit his vehicle. After Randall refused and began raising his voice, another officer who had arrived on scene activated his taser and pointed it at Randall while Deputy Rose placed Randall's left wrist in a wrist lock.

[Randall] began crying immediately and stated it's in the door, it's in the door. And so I had to, you know, ask him what are you talking about. And he said that there was meth in the door. And I looked to the left and clearly in plain view in the door in the pocket I could see a clear plastic baggie which had a white powdery substance in it.

Id. at 14-15. Randall was detained, placed in handcuffs, and seated nearby while a search of the vehicle revealed methamphetamine and two marijuana pipes. Because Deputy Rose had no further questions to ask Randall once he was in custody, he "did not feel Miranda was required" and therefore, Randall "was not read Miranda that night." Id. at 16.

[5] Randall was subsequently charged with possession of methamphetamine, a Level 6 felony, and two counts of possession of paraphernalia, both Class C misdemeanors. Randall moved to suppress the evidence against him and the trial court denied his motion after a hearing, concluding:

In this case, Officer Rose approached the Defendant for the purpose of a welfare check, under his community caretaking function, which allows for a seizure of the Defendant as long as it reasonably takes to assess his wellbeing (as well as to provide aid if necessary). Based on Officer Rose's testimony, he did not have his concern for the Defendant's wellbeing alleviated by the Defendant exiting his vehicle, ordering the Defendant to return to his vehicle for officer safety and then approaching-arguably a seizure. Additionally, there are no facts alleged to suggest that Officer Rose had any reasonable suspicion of a crime-he stated that he saw a man slumped over his steering wheel and excitedly exit his vehicle. Even if Officer Rose might have had a slight suspicion that the Defendant had taken an illegal substance to cause his incapacitated state, the objective reasoning of checking on someone who clearly looks distressed, as well as the fact that someone in an incapacitated state in a hospital parking lot could have easily been caused by numerous other reasons, more than outweighs such suspicion. More importantly, public need and interest (i.e., we want Officer Rose to check on the wellbeing of someone slumped over a steering wheel, and we do not want him to prejudge the situation because he sees the person simply exit his vehicle-assuming a person is fine seconds after being incapacitated and not possibly still suffering from the effects of whatever caused the incapacity could be tragic) significantly outweigh the minimal intrusion upon the privacy of the Defendant in this case (i.e., having to return to his vehicle and briefly talk with Officer Rose about his wellbeing).
After reviewing the totality of the circumstances, balancing the interests, and determining reasonableness, the Court finds that Officer Rose acted reasonably and was justified in ordering the Defendant to return to his vehicle and approaching the vehicle to talk with the Defendant.

Appellant's Appendix Volume II at 52.

[6] Randall filed a petition to certify the trial court's order for interlocutory appeal and for a stay of the proceedings, which the trial court granted on July 11, 2017. This court accepted jurisdiction on September 18, 2017.

Discussion and Decision

I. Standard of Review

[7] We review a trial court's ruling on a motion to suppress in a manner similar to other sufficiency matters. Taylor v. State, 69 N.E.3d 502, 505 (Ind. Ct. App. 2017).

The record must disclose substantial evidence of probative value supporting the trial court's decision. We do not reweigh the evidence. We consider conflicting evidence most favorable to the trial court's ruling, but unlike other sufficiency matters, we must also consider undisputed evidence favorable to the defendant.

Id. (internal citations omitted). Where, as here, an appellant's challenge to such a ruling is premised on a claimed constitutional violation, we review the issue de novo because it raises clear questions of law. Guilmette v. State , 14 N.E.3d 38, 40-41 (Ind. 2014). We may affirm the trial court's ruling if it is sustainable on any legal basis in the record, even though it was not the reason that the trial court enunciated. Scott v. State , 883 N.E.2d 147, 152 (Ind. Ct. App. 2008).

II. Seizure

[8] The Fourth Amendment to the United States Constitution states that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend IV.

[9] "Accordingly, a warrantless search or seizure is per se unreasonable, and the State bears the burden to show that one of the well-delineated exceptions to the warrant requirement applies." M.O. v. State , 63 N.E.3d 329, 331 (Ind. 2016) (quotations omitted). "[A] person is 'seized' ... when, by means of physical force or a show of authority, his freedom of movement is restrained." U.S. v. Mendenhall , 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). On appeal, the State concedes that Deputy Rose ordering Randall to return to his vehicle constituted a seizure. Brief of Appellee at 10. The trial court found the seizure reasonable pursuant to the community caretaking function and Randall now argues its application was erroneous. Although we agree that the community caretaking function was inapplicable on the facts presented, we nevertheless find Randall's seizure permissible under the emergency aid doctrine.

A. Community Caretaking Function

[10] Put simply, the community caretaking function is:

a catchall term for the wide range of responsibilities that police officers must discharge aside from their criminal enforcement activities. Indeed, besides enforcing criminal laws, police aid those in distress, combat actual hazards, prevent potential hazards ... and provide an infinite variety of services to preserve and protect community safety.

Wilford v. State , 50 N.E.3d 371, 375 (Ind. 2016) (citations and quotations omitted).

[11] In its Findings of Fact, Conclusions of Law, and Order, the trial court relied primarily on our decision in McNeal v. State , 62 N.E.3d 1275 (Ind. Ct. App. 2016), vacated in relevant part by McNeal v. State, 76 N.E.3d 136 (Ind. 2017). There, a panel of this court adopted a three-prong analysis "for evaluating claims of police community caretaking functions as set out by the Wisconsin Supreme Court in State v. Kramer , 315 Wis.2d 414, 759 N.W.2d 598, 605 (2009)." McNeal, 62 N.E.3d at 1281. The trial court applied the Kramer three-prong analysis before concluding Deputy Rose's actions were justified by the community caretaking function. Just a few weeks after the trial court's order, however, our supreme court issued its opinion in McNeal v. State , which expressly vacated the Kramer analysis:

[McNeal] asks this Court to vacate a portion of the Court of Appeals' opinion discussing the community caretaking exception to the Fourth Amendment's warrant requirement.
McNeal's request is well-taken. We now grant transfer, vacating the Court of Appeals' discussion of the community caretaking function ....

76 N.E.3d at 137.

[12] Because our supreme court expressly vacated the Kramer analysis, Randall alleges the trial court's legal basis for denying his motion to suppress "cannot be upheld." Brief of Appellant at 13. We agree, and to the extent the trial court applied the community caretaking function, such application was erroneous.

[13] Our supreme court has only applied the community caretaking function as an exception to the warrant requirement in the limited context of inventory searches, and even then "only when the State meets a strict two-prong standard for proving the warrantless impoundment was reasonable." M.O. , 63 N.E.3d at 332 n.2 (quotation omitted). However, as noted above, we may affirm the trial court's ruling if it is sustainable on any legal basis in the record, even though it was not the reason that the trial court enunciated. Scott , 883 N.E.2d at 152.

B. Emergency Aid Doctrine

1. Fourth Amendment

[14] Although the trial court erroneously applied the community caretaking function, its reasoning tracked another exception to the warrant requirement with a basis in the record-the emergency aid doctrine. The emergency aid doctrine is premised on the theory that police should be able to act without obtaining a warrant when they reasonably believe a person needs immediate aid or attention. Mincey v. Arizona , 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). "The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." Id. (quotation omitted). Under the emergency aid doctrine, an officer may act without a warrant where the officer had "an objectively reasonable basis for believing that medical assistance was needed, or persons were in danger." Michigan v. Fisher , 558 U.S. 45, 49, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (quotations omitted).

[15] Our supreme court recently explored the emergency aid doctrine through two cases decided the same day: M.O. v. State , and Cruz-Salazar v. State , 63 N.E.3d 1055 (Ind. 2016). First, in M.O. , the clerk of a gas station reported that a woman was "stuck underneath her vehicle in the parking lot." 63 N.E.3d at 330. By the time an officer arrived on scene, dispatch had advised the officer that the woman was leaving the gas station and the officer observed her vehicle leaving the parking lot. "[F]earing for her well-being[,]" the officer initiated a traffic stop and approached her vehicle "where he observed no signs of physical injury." Id. at 330-31. The officer then engaged the defendant in conversation and she explained why she had been stuck underneath her vehicle, but during this conversation the officer observed signs of impairment and smelled the odor of alcohol coming from the vehicle. The defendant was arrested, charged with operating a vehicle while intoxicated, and later moved to suppress the evidence claiming the traffic stop was invalid under both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution.

[16] On transfer, our supreme court turned to two cases that seemingly delineate the boundaries of Indiana's recognized emergency aid doctrine: Bruce v. State, 268 Ind. 180, 216, 375 N.E.2d 1042, 1062 (1978) (holding search of vehicle revealing a shotgun used in murder prosecution was permissible where officer was responding to a report of an accident with injury) and Trotter v. State , 933 N.E.2d 572, 577 (Ind. Ct. App. 2010) (holding search was impermissible where there was no evidence that the defendant was in need of emergency assistance where police responded to gunshots on private property and were told a man had gone inside to use the bathroom and the police entered the barn to find the man). Applying the reasoning of the two cases to the facts before it, the M.O. Court explained:

Officer Arnold responded to a report that a woman was trapped under her car, which undoubtedly could give rise to a reasonable concern that emergency medical assistance was needed, prompting further investigation, as in both Bruce and Trotter . However, the actual facts he subsequently confronted did not objectively support that concern: Officer Arnold learned that M.O. had freed herself prior to his arrival at the gas station, M.O. operated her vehicle normally, and Officer Arnold witnessed no traffic infractions or criminal conduct. This is distinctly different from Bruce , where the responding officer came upon facts consistent with a continuing emergency, and thus the officer had "no reasonable alternative" but to conduct a warrantless search of the vehicle. Bruce , 268 Ind. at 216-17, 375 N.E.2d at 1062. Rather, as in Trotter , while the evidence Officer Arnold observed firsthand, when combined with the report, may have "indicat[ed] a possible unsafe situation, such evidence does not establish an exigency sufficient to justify [the] warrantless intrusion" of stopping M.O.'s car. Trotter , 933 N.E.2d at 580.
We do not believe Officer Arnold's assertion that he feared for M.O.'s medical state was merely a pretext to conduct an investigatory stop, but his subjective intent is not decisive: "[T]he test is objective, and the government must establish that the circumstances as they appear[ed] at the moment of [the stop] would lead a reasonable, experienced law enforcement officer to believe that someone inside the [vehicle] required immediate assistance." Trotter , 933 N.E.2d at 579. And in a close case on these unique facts, we err, if at all, on protecting the privacy rights of Hoosiers against intrusion by the State. Accordingly, we find that the State has failed to carry its burden of showing that an exception to the warrant requirement of the Fourth Amendment justified the stop.

Id. at 333-34.

[17] In Cruz-Salazar v. State , an officer responded to a report of a suspicious vehicle which had been parked in front of a residence for thirty minutes while still running. 63 N.E.3d at 1055. The officer found the vehicle as described and shined his spot light on the vehicle to find the defendant "sleeping or passed out." Id. After the defendant failed to respond to knocks on the window, the officer opened the vehicle's door and awoke the defendant by "shaking him a little." Id. at 1056. The officer then immediately observed behavior consistent with intoxication and arrested the defendant for public intoxication. A subsequent search incident to arrest revealed cocaine on his person. The trial court denied the defendant's motion to suppress and he was convicted following a bench trial. On transfer, our supreme court cited its discussion of the emergency aid exception in M.O. , and proceeded directly to its application:

Police received a report of a stationary vehicle that had been running for 30 minutes, in the early hours of a cold December morning. This alone is sufficiently unusual to merit further investigation, as it could be an indicator of distress. Police arrived on scene to find the situation as reported, and indeed worse: Cruz-Salazar was at the wheel of the vehicle, and was not responsive when Officer Ayler both shined his flashlight through the windows or when he tapped on the window. At this point, the officer had an objectively reasonable basis to open the door and check on Cruz-Salazar's well-being. Accordingly, we find the warrantless entry into Cruz-Salazar's vehicle permissible under the Fourth Amendment to the Federal Constitution and Article 1, Section 11 of the Indiana Constitution.

Id. at 1056-57 (citation omitted).

[18] Returning to the facts presented here, while patrolling a hospital parking lot where he testified that people have died, Deputy Rose observed a man appearing to be "slumped over" the steering wheel of his car with his driver's door open. Tr., Vol. 1 at 11. We believe these observations "could give rise to a reasonable concern that emergency medical assistance was needed, prompting further investigation ...." M.O., 63 N.E.3d at 333. Therefore, we conclude that Deputy Rose had an objectively reasonable basis to believe that Randall required medical assistance when he initially observed his vehicle.

[19] As Deputy Rose activated his overhead white lights and pulled behind Randall to conduct a welfare check, Randall "abruptly exited his vehicle and started walking toward [Deputy Rose's] vehicle at a fast pace." Tr., Vol. 1 at 10. Deputy Rose then ordered Randall to return to his vehicle and he obliged, but Randall argues that at this point in the encounter, although the facts may have initially supported application of the emergency aid exception, "any such concern dissipated once [he] promptly became alert and got out of his car without incident." Br. of Appellant at 16. In so arguing, Randall relies on the facts of M.O. , where, as discussed above, our supreme court concluded the facts did not support an exigency sufficient to justify the warrantless intrusion of stopping M.O.'s car. M.O. , 63 N.E.3d at 333. Concluding the facts that Deputy Rose confronted objectively supported his concern and constituted an exigency sufficient to justify Randall's brief seizure, we find Cruz-Salazar controlling and M.O. distinguishable.

[20] We disagree that Randall's behavior immediately dispelled Deputy Rose's concern. The trial court found that "[b]ased on Officer Rose's testimony, he did not have his concern for [Randall's] wellbeing alleviated by [Randall] exiting his vehicle ...." Appellant's App., Vol. II at 52. On appeal, Randall alleges that the trial court's finding is unsupported by the record because "there is no testimony that Deputy Rose remained concerned for Randall's well-being after Randall became alert and approached [Deputy Rose's vehicle]." Br. of Appellant at 19. Instead, Randall points to Deputy Rose's testimony that he "ordered him back to his vehicle ... for concerns of officer safety," tr., vol. 1 at 10, and the facts that Deputy Rose never asked about Randall's well-being or inquired as to whether he required medical attention as evidencing that Randall's detention was unrelated to any ongoing emergency.

[21] Having concluded there was an objectively reasonable basis to believe Randall initially required medical assistance, we also conclude that his subsequent behavior-quickly becoming alert, exiting his vehicle, and approaching Deputy Rose's vehicle at a fast pace-objectively supported that concern, even if that same behavior dispelled any suspicion that Randall was dead or unconscious. See Fisher, 558 U.S. at 49, 130 S.Ct. 546 (noting that "Officers do not need ironclad proof of a likely serious, life-threatening injury to invoke the emergency aid exception.").

[22] Moreover, we do not view Deputy Rose ordering Randall to return to his vehicle for "concerns of officer safety," tr., vol. 1 at 10, as necessarily negating his concern for Randell's well-being. Concerns of officer safety and the emergency aid exception are not mutually exclusive. See Jones v. State, 54 N.E.3d 1033, 1039 (Ind. Ct. App. 2016) (holding a protective sweep under emergency aid exception was permissible where it was conducted before the underlying concern of the emergency aid exception was dissipated). And, unlike the traffic stop in M.O. , conducted after the vehicle safely left the gas station and after the officer observed M.O. safely operating her vehicle, the facts that Deputy Rose confronted were uncertain and rapidly evolving: Randall was suddenly alert and approaching Deputy Rose's vehicle at a "fast pace" just moments after appearing "slumped over" his steering wheel. Tr., Vol. 1 at 10. Therefore, mindful of our deference to the trial court's determination of facts, we cannot say that Deputy Rose's concern for Randall's safety dissipated immediately after Randall exited his vehicle. Because Deputy Rose possessed an objectively reasonable concern for Randall's safety, we conclude Randall's brief seizure was permissible under the emergency aid exception.

2. Article 1, Section 11

[23] Randall also argues that his seizure was unreasonable under Article 1, Section 11 of the Indiana Constitution.

[24] Although Article 1, Section 11 shares the same language as the Fourth Amendment, we nevertheless interpret and apply the provision independently. State v. Bulington , 802 N.E.2d 435, 438 (Ind. 2004). Notably, instead of "focusing on the defendant's reasonable expectation of privacy, we focus on the actions of the police officer, and employ a totality-of-the-circumstances test to evaluate the reasonableness of the officer's actions." Duran v. State , 930 N.E.2d 10, 17 (Ind. 2010) (internal quotations omitted). We give Article 1, Section 11"a liberal construction in favor of protecting individuals from unreasonable intrusions on privacy." Rush v. State , 881 N.E.2d 46, 52 (Ind. Ct. App. 2008). Further, it is the State's burden to prove its intrusion was reasonable under the circumstances. Bulington , 802 N.E.2d at 438. To determine reasonableness, we consider: "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." Litchfield v. State , 824 N.E.2d 356, 361 (Ind. 2005).

[25] Beginning with the first factor, Randall argues that suspicion a violation occurred was "nonexistent." Br. of Appellant at 22. While true, the State raises an interesting issue in that the Litchfield opinion was written in the criminal context and notes that our supreme court has never specifically addressed how to apply the first Litchfield factor outside a criminal investigation. Br. of Appellee at 20. Indeed, although our supreme court mentioned the Litchfield factors in M.O. , the court never expressly addressed them but rather simply explained that, "Given that our extensive Fourth Amendment analysis ... also discusses these factors, we see no need to repeat that discussion here," before concluding that the traffic stop was also impermissible under the Indiana Constitution. M.O., 63 N.E.3d at 334. As discussed in more detail above, however, the Court addressed the officer's concern for M.O.'s safety in the context of the Fourth Amendment and explained that while the concern was reasonable when responding to a report of a woman stuck under her car-the "actual facts" he confronted "did not objectively support that concern." Id. Conversely, in Cruz-Salazar , the supreme court found that opening the door of a vehicle was reasonable where it had been running for thirty minutes and its occupant was unresponsive to police attempts to awake him. 63 N.E.3d at 1056-57.

[26] The combination of the two cases suggests that the "the degree of concern, suspicion, or knowledge that a violation has occurred," Litchfield , 824 N.E.2d at 361, can be read in the context of the emergency aid exception as "the degree of concern that emergency medical assistance was needed," M.O., 63 N.E.3d at 333. As noted above, Deputy Rose's initial degree of concern was high-he encountered a man slumped over a steering wheel with his door open in a hospital parking lot where people had previously died. Tr., Vol. 1 at 11. Although that concern may have lowered when Randall exited his vehicle, his objectively reasonable concern remained.

[27] The second factor is "the degree of intrusion the method of the search or seizure imposes on the citizen's ordinary activities." Litchfield , 824 N.E.2d at 361. Deputy Rose ordered Randall to return to his vehicle before approaching the driver's side and speaking with him through his driver's door. Although the State admits that Randall was seized for the purposes of the Fourth Amendment, the degree of intrusion was low because Deputy Rose simply directed Randall to return to his own vehicle-the place where he had been just moments before. Compare State v. Cunningham, 26 N.E.3d 21, 26 (Ind. 2015) (noting that ordering an occupant to remain in the car is a "lesser" intrusion) with Trotter, 933 N.E.2d at 582 (noting the degree of officer's intrusion was "immense" where officers entered a structure attached to private residence).

[28] Finally, despite the extent of law enforcement needs being relatively low, we conclude that the balancing of a high concern and minimal intrusion weighs in favor of Randall's brief seizure. Accordingly, we conclude the seizure was permissible under Article 1, Section 11 of the Indiana Constitution.

III. Miranda

[29] Next, Randall argues his incriminating statements were made in violation of Miranda and that the evidence resulting therefrom was fruit of the poisonous tree. The State responds that Randall was not in custody for the purposes of Miranda . We agree with the State and conclude that Randall's seizure was no more custodial than a routine traffic stop.

[30] Here, after observing Randall's various behaviors and a small piece of folded aluminum foil that Deputy Rose believed to be consistent with narcotic use, Deputy Rose told Randall that he "had experience" and asked him "what else [was] in the vehicle he would not want a canine officer to find." Tr., Vol. 1 at 17. In response, Randall confessed to having a marijuana pipe and Deputy Rose ordered Randall out of his vehicle in order to conduct a search. When Randall failed to comply, Deputy Rose placed him in a wrist lock and another officer aimed a taser at him. Deputy Rose then testified:

[Randall] began crying immediately and stated it's in the door, it's in the door. And so I had to, you know, ask him what are you talking about. And he said that there was meth in the door. And I looked to the left and clearly in plain view in the door in the pocket I could see a clear plastic baggie which had a white powdery substance in it.

Tr., Vol. 1 at 14-15.

[31] "[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Prior to any custodial interrogation, "the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Id. Statements elicited in violation of Miranda generally are inadmissible in a criminal trial. Loving v. State , 647 N.E.2d 1123, 1125 (Ind. 1995).

The triggering requirement for a Miranda warning is "custodial interrogation." State v. Brown, 70 N.E.3d 331, 335 (Ind. 2017).

[32] " 'Interrogation' for the purposes of Miranda constitutes questions, words, or actions that the officer knows or should know are reasonably likely to elicit an incriminating response." Id. Undoubtedly, Deputy Rose knew his question, asking Randall "what else [was] in the vehicle he would not want a canine officer to find," was likely to elicit an incriminating response. Tr., Vol. 1 at 17. Therefore, this issue turns on whether Randall was in custody at the time of Deputy Rose's questioning.

[33] Randall argues that he was in custody for the purposes of Miranda because "no reasonable person in his shoes would have felt free to terminate the questioning and leave the parking lot." Br. of Appellant at 28. Although that indeed may be true, Randall's argument confuses a seizure under the Fourth Amendment with custody under the Fifth Amendment. Our supreme court recently explained this issue in Brown :

to the extent that Brown is arguing that a seizure under the Fourth Amendment is akin to custody under the Fifth Amendment, the U.S. Supreme Court has made clear that this is not the case. The test of whether a defendant is in custody is not whether a defendant feels free to go, but rather whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Further, the United States Supreme Court has repeatedly held that a person temporarily detained in an ordinary traffic stop is not in custody for the purposes of Miranda . In Berkemer [v. McCarty , 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) ], the U.S. Supreme Court made clear that a traffic stop "significantly curtails the 'freedom of action' of the driver" and that "[c]ertainly few motorists would feel free to disobey a direction to pull over or leave the scene of a traffic stop without being told they might do so." Berkemer , 468 U.S. at 436-37, 104 S.Ct. 3138. Thus, it concluded that a traffic stop is a "seizure" within the meaning of the Fourth Amendment. Nevertheless, the Court declined to find that this seizure was custody for Miranda purposes. Id. at 437, 104 S.Ct. 3138. Our Court has similarly held that a suspect who was stopped and "seized" for purposes of the Fourth Amendment is not ordinarily in custody. Meredith v. State , 906 N.E.2d 867, 873-74 (Ind. 2009).

70 N.E.3d at 335-36 (emphasis added) (some citations and quotations omitted).

[34] Although Randall's seizure was initiated by the emergency aid exception, it quickly evolved into a criminal investigation. See Cruz-Salazar , 63 N.E.3d at 1056 (emergency aid exception evolving into criminal investigation); State v. Gray, 997 N.E.2d 1147, 1152 (Ind. Ct. App. 2013) ("Once a justifiable stop is made, the scope of the officer's investigation may be broadened beyond the purpose for which the person was stopped only if additional particularized and objective suspicions come to light."), trans. denied. Thus, for purposes of Miranda , we find no meaningful distinction between this encounter and a traffic stop-or a Terry stop, for that matter. In Berkemer , the United States Supreme Court noted two reasons why those two types of encounters do not trigger Miranda . First, it emphasized the temporary and brief nature of the stop: "questioning incident to an ordinary traffic stop is quite different from stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek." Berkemer at 438, 104 S.Ct. 3138. Second, it noted the public nature of the stop: "[t]he atmosphere surrounding an ordinary traffic stop is substantially less 'police dominated' than that surrounding the kinds of interrogation at issue in Miranda ...." Id. at 438-39, 104 S.Ct. 3138.

[35] Both reasons apply to the facts presented here. The record reveals that Deputy Rose only asked one question before Randall admitted to the possession of paraphernalia and the seizure occurred in a public hospital parking lot. See Brown , 70 N.E.3d at 336-37 (concluding an Arby's parking lot was "at least as public as a routine traffic stop"). Although Randall argues Deputy Rose engaged in subterfuge by mentioning a police canine, we conclude his seizure was no more custodial than a routine traffic stop.

Conclusion

[36] Despite the trial court erroneously applying the community caretaking function, its ruling was sustainable on the emergency aid exception. We therefore conclude that Randall's seizure was reasonable and his statements were not made in violation of Miranda . Accordingly, we affirm the trial court's denial of Randall's motion to suppress.

[37] Affirmed.

Crone, J., and Altice, J., concur.

      We heard oral argument at DePauw University in Greencastle, Indiana, on April 9, 2018. We thank the faculty-especially Professor Bruce Stinebrickner-staff, and students of DePauw University for their generous hospitality and commend counsel for their skilled and informative oral advocacy.

      Deputy Rose later testified "[w]e've had people die in that lot ...." Id. at 17.

      "Overhead take down lights" are white lights for "scene lighting[,]" not flashing red-and-blue lights. Id. at 18.

      The trial court denied the defendant's motion to suppress and the Court of Appeals reversed. M.O. v. State , 54 N.E.3d 428, 439 (Ind. Ct. App. 2016).


source: Caselaw Access Project

author: Pyle, Judge.

license: Public Domain

text:
    SCRIBBLES, LLC, Pittsboro Christian Church, d/b/a Scribbles Ministry of Pittsboro Christian Church, Christeen Michael, and Debbie Spurlock, Appellants/Defendants, v. Camden "Jax" WEDGEWOOD, BY next of friend Brian Scott WEDGEWOOD, Hannah Jade Hill, and Camden Riley Wedgewood, Appellees/Plaintiffs.
    Court of Appeals Case No. 49A04-1706-CT-1434
    Court of Appeals of Indiana.
    FILED April 27, 2018
    Attorneys for Appellant, Pittsboro Christian Church, d/b/a Scribbles Ministry of Pittsboro Christian Church: Robert B. Thornburg, Julia Blackwell Gelinas, Maggie L. Smith, Frost Brown Todd LLC, Indianapolis, Indiana, Katherine J. Noel, Noel Law, Kokomo, Indiana
    Attorneys for Appellant, Scribbles LLC: Scott P. Sullivan, Flynn & Sullivan PC, Indianapolis, Indiana
    Attorneys for Appellant, Christeen Michael: Jan N. Campbell, Jeffrey R. Oberlies, Leeuw Oberlies & Campbell, Indianapolis, Indiana
    Attorneys for Appellant, Debbie Spurlock: Kyle Michael Baker, Salma Naji Qaddourah, McNeely, Stephenson, Shelbyville, Indiana
    Attorney for Appellees: Nicholas C. Deets Hovde Dassow & Deets LLC Indianapolis, Indiana
   Pyle, Judge.

Statement of the Case

[1] In this interlocutory appeal, Scribbles, LLC ("Scribbles"); Pittsboro Christian Church d/b/a Scribbles Ministry of Pittsboro Christian Church ("the Church"); Christeen Michael ("Michael"); and Debbie Spurlock ("Spurlock") (collectively "the Defendants") appeal the trial court's denial of their motion to transfer venue to Hendricks County in a negligence action filed against them in Marion County by infant Camden "Jax" Wedgewood ("Infant Wedgewood"), by his next friend, his grandfather, Brian Scott Wedgewood ("Grandfather"); Hannah Jade Hill ("Mother"); and Camden Riley Wedgewood ("Father") (collectively ("the Plaintiffs") ). Because Hendricks County is a preferred venue and Marion County is not, the trial court erred in denying the Defendants' motion to transfer venue to Hendricks County. We therefore reverse and remand with instructions for the trial court to grant the Defendants' motion and transfer this case to Hendricks County.

[2] We reverse and remand with instructions.

Issue

The sole issue for our review is whether the trial court erred in denying the Defendants' motion to transfer venue.

Facts

[3] Scribbles and the Church operate a child care ministry located in Hendricks County. Michael is an infant caregiver at Scribbles, and Spurlock is the director. Both women are Hendricks County residents. Infant Wedgewood, Grandfather, Mother, and Father are also Hendricks County residents.

[4] In January 2016, Infant Wedgewood began attending Scribbles. Shortly thereafter, he suffered a catastrophic brain injury. The following year, the Plaintiffs filed a two-count complaint in the Marion Superior Court. The first count was a negligence action against Scribbles, the Church, Michael, and Spurlock. The second count was a claim for a declaratory judgment against the Indiana Family and Social Services Administration (FSSA). Specifically, the Plaintiffs explained that Infant Wedgewood was a beneficiary of the Indiana Medicaid Plan ("the Plan") and asked the trial court to determine whether the Plan had a lien on the Plaintiffs' recovery and, if so, the amount of the lien. The Defendants all raised the affirmative defense of improper venue under Indiana Trial Rule 75 in their respective answers. They all also alleged that it was the Plaintiffs who were at fault for Infant Wedgewood's injuries. FSSA did not respond to the complaint.

[5] In May 2017, the Defendants filed a joint motion to transfer venue wherein they asked the trial court to transfer venue from Marion County to Hendricks County because Marion County was not a preferred venue. The Plaintiffs responded that Marion County was a preferred venue pursuant to Trial Rule 75(A)(5) because FSSA was a governmental organization located in Marion County. The trial court concluded that "Marion County [was] a preferred venue and the Court lack[ed] the authority to transfer the case to Hendricks County" and denied the Defendants' motion. (App. 11). The Defendants appeal.

Decision

[6] The Defendants argue that the trial court erred in denying their motion to transfer venue to Hendricks County. Specifically, they contend that the trial court should have granted their motion because Marion County is not a preferred venue, and Hendricks County is. We agree with both contentions.

[7] We review factual findings on an appeal from a ruling on a motion for transfer of venue for clear error and review conclusions of law de novo. Am. Family Ins. Co. v. Ford Motor Co. , 857 N.E.2d 971, 973 (Ind. 2006). Where factual determinations are made from a paper record, however, those determinations are also reviewed de novo. Id.

[8] Trial Rule 75(A), which governs preferred venue in Indiana, provides, in relevant part, as follows:

Any case may be venued, commenced and decided in any court in any county, except, that upon the filing of a pleading or a motion to dismiss allowed by Rule 12(B)(3), the court, from allegations of the complaint or after hearing evidence thereon or considering affidavits or documentary evidence filed with the motion or in opposition to it, shall order the case transferred to a county or court selected by the party first properly filing such motion or pleading if the court determines that the county or court where the action was filed does not meet preferred venue requirements or is not authorized to decide the case and that the court or county selected has preferred venue and is authorized to decide the case. Preferred venue lies in:
(1) the county where the greater percentage of individual defendants included in the complaint resides, or, if there is no such greater percentage, the place where any individual defendant so named resides; or
(2) the county where the land or some part thereof is located or the chattels or some part thereof are regularly located or kept, if the complaint includes a claim for injuries thereto or relating to such land or such chattels, including without limitation claims for recovery of possession or for injuries, to establish use or control, to quiet title or determine any interest, to avoid or set aside conveyances, to foreclose liens, to partition and to assert any matters for which in rem relief is or would be proper; or
(3) the county where the accident or collision occurred, if the complaint includes a claim for injuries relating to the operation of a motor vehicle or a vehicle on railroad, street or interurban tracks; or
(4) the county where either the principal office of a defendant organization is located or the office or agency of a defendant organization or individual to which the claim relates or out of which the claim arose is located, if one or more such organizations or individuals are included as defendants in the complaint; or
(5) the county where either one or more individual plaintiffs reside, the principal office of a governmental organization is located, or the office of a governmental organization to which the claim relates or out of which the claim arose is located, if one or more governmental organizations are included as defendants in the complaint; or
(6) the county or court fixed by written stipulations signed by all the parties named in the complaint or their attorneys and filed with the court before ruling on the motion to dismiss; or
(7) the county where the individual is held in custody or is restrained, if the complaint seeks relief with respect to such individual's custody or restraint upon his freedom; or
(8) the county where a claim in the plaintiff's complaint may be commenced under any statute recognizing or creating a special or general remedy or proceeding; or
(9) the county where all or some of the property is located or can be found if the case seeks only judgment in rem against the property of a defendant being served by publication; or
(10) the county where either one or more individual plaintiffs reside, the principal office of any plaintiff organization or governmental organization is located, or the office of any such plaintiff organization or governmental organization to which the claim relates or out of which the claim arose is located, if the case is not subject to the requirements of subsections (1) through (9) of this subdivision or if all the defendants are nonresident individuals or nonresident organizations without a principal office in the state.

[9] The Indiana Supreme Court has explained the role of this rule in determining preferred venue as follows:

Trial Rule 75 governs venue requirements in Indiana. It contains ten subsections, each setting forth criteria establishing 'preferred' venue. A case or complaint may be filed in any county in Indiana, but if the complaint is not filed in a preferred venue, the court is required to transfer the case to a preferred venue upon a proper request from a party. The rule does not create a priority among the subsections establishing preferred venue. Id. If the complaint is filed in a county of preferred venue, then the trial court has no authority to transfer the case based solely on preferred venue in one or more other counties.

Id. at 973-74. The preferred venue status of a given county can only be determined as of the time a complaint is filed. Painters Dist. Council 91 v. Calvert Enterprises Electronic Services, Inc., 906 N.E.2d 254, 257 (Ind. Ct. App. 2009).

[10] The Indiana Supreme Court further explained preferred venue as follows in Randolph County v. Chamness , 879 N.E.2d 555, 557 (Ind. 2008) :

Preferred venue is located in counties where information is readily available, where relevant land and personal property can be found, where witnesses can be easily brought to court, and where the litigants reside or hold office. Reliable preferred venue rules increase judicial efficiency because a judge can focus on the merits of a dispute rather than its relocation to a more convenient forum. Litigants likewise benefit from relative certainty about the preferred forum and from the savings in time and expense that such rules provide.

[11] Here, although the alleged injury to Infant Wedgewood occurred in Hendricks County, and all of the Plaintiffs and Defendants were either located in or lived in Hendricks County, the Plaintiffs filed their complaint in Marion County. The Defendants filed a motion to transfer venue to Hendricks County, which the trial court denied. On appeal, the Defendants argue that "Indiana law does not allow preferred venue to be asserted simply by including a separate count seeking a declaratory judgment action against a governmental organization with an attenuated interest in the underlying litigation." (Defendants' Br. at 9). The Defendants further contend that the "possible assertion of a lien by FSSA in the present case lacks any connection to the underlying negligence action and, therefore, cannot establish preferred venue." (Defendants' Br. at 9). We agree.

[12] First, it has already been held that the Uniform Declaratory Judgment Act does not create a basis for preferred venue requirements. Jasper Cty. Bd. of Cty. Comr's v. Monfort , 663 N.E.2d 1166, 1167 (Ind. Ct. App. 1996). Second, the Defendants are correct that a "county's 'incidental' connection to the claims asserted will not establish preferred venue ...." (Defendants' Br. at 12).

[13] For example, in R & D Trans., Inc. v. A.H. , 859 N.E.2d 332 (Ind. 2006), Joseph Hazel ("the truck driver") was driving a tractor-trailer owned by R & D Transport when he was involved in an accident that injured A.H. The accident occurred in Dearborn County. The truck driver's residence and R & D's principal place of business were in Hendricks County. A.H.'s mother filed a negligence action in Porter County where A.H. resided. Her complaint alleged the "destruction and loss of A.H.'s 'orthotic devices, clothing, and other chattels regularly located in Porter County.' " Id. at 333. The truck driver and R & D filed a motion to transfer venue, which the trial court denied. This Court affirmed the denial on direct appeal. R & D Trans. v. A.H., No. 64A05-0502-CV-95, 835 N.E.2d 232 (Ind. Ct. App. Sept. 28, 2005).

[14] The Indiana Supreme Court granted transfer. In support of her argument that preferred venue was found in Porter County, A.H.'s mother relied on Trial Rule 75(A)(2), which provides, in relevant part, that preferred venue lies in the county where the chattels or some part of them are regularly kept, if the complaint includes a claim for injuries relating to such chattels. According to A.H.'s mother, because "A.H. suffered in the accident, the destruction and loss of 'orthotic devices, clothing, and other chattels' and those chattels were 'regularly located' in Porter County, Porter County [was] a county of preferred venue under the literal reading of [ T.R. 75(A)(2) ]." R & D, 859 N.E.2d at 334.

[15] The defendants responded that:

[T]he clear purpose and spirit of Rule 75(A) taken as a whole [was] that incidental damage to chattels in a motor vehicle accident [was] not enough to create preferred venue under [ T.R. 75(A)(2) ]; rather, Dearborn County [was] a county of preferred venue under subsection [ T.R. 75(A)(3) ] because that [was] 'the county where the accident or collision occurred' and Hendricks County [was] a county of preferred venue under [ T.R. 75(A)(4) ] because that is the county where 'the principal office' of R & D Transport [was] located.

Id.

[16] The Indiana Supreme Court agreed with the defendants and concluded that, although technically permitted under Trial Rule 75(A)(2), basing preferred venue on the existence of A.H.'s chattels in that instance was inappropriate because those chattels, such as the orthotics, "played no role in the accident itself or in the claims of the lawsuit that [Mother] filed. Rather, her claim involved a motor vehicle accident; the location that played the important role was that of the actual collision." Id. The Indiana Supreme Court explained that to decide otherwise would defeat the purpose of Trial Rule 75(A) and "allow T.R. 75(A)(2) to serve as the means to bypass the clear intent of the rule's overall text." Id. at 336.

[17] We reached a similar result in Salsbery Pork Producers, Inc. v. Booth , 967 N.E.2d 1 (Ind. Ct. App. 2012). Booth was a passenger involved in a motor vehicle accident in Tipton County. The driver of the other vehicle was a resident of Tipton County acting within the scope of his employment with a Tipton County employer. Booth filed a negligence action against both drivers, the employer, the Tipton County Commissioners, and the Indiana Department of Transportation ("IDOT). Booth filed the action in Marion County based upon the count against IDOT, which is headquartered there. The other defendants filed a motion to transfer the case to Tipton County, which the trial court denied.

[18] On appeal, this Court pointed out that a "Marion County venue for the case [was] discordant with the general purpose of the venue rules, which [was] to allow trial in the county where the events giving rise to a dispute or where the greatest amount of evidence with respect to the dispute [would] likely be found." Id. at 6. We noted that the "collision that injured Booth occurred in Tipton County; Booth, the majority of the defendants, and the County all reside[d] in or [were] headquarter[ed] in Tipton County," and concluded that Marion County was not a preferred venue. Id. We therefore reversed the trial court and remanded the case with instructions to transfer it to Tipton County. Id.

[19] Here, as in R & D and Salsbery , FSSA has an incidental connection to the subject matter of the litigation, which is insufficient to support preferred venue. Specifically, as in R & D , FSSA played no role in the underlying litigation, which involved an alleged catastrophic brain injury to an infant. Further, the alleged injury occurred in Hendricks County. In addition, all of the Plaintiffs and Defendants resided in or were headquartered in Hendricks County. Under these circumstances, we agree with the Defendants that Marion County is not a preferred venue. See Salsbery , 967 N.E.2d at 6. To decide otherwise would defeat the purpose of T.R. 75(A) and allow T.R. 75(A)(5) to serve as the means to bypass the clear intent of the rule's overall text. See R & D' 859 N.E.2d at 336.

[20] Having determined that Marion County is not a county of preferred venue, we must determine whether Hendricks County is. Our review of Trial Rule 75(A), as well as the facts of this case, reveal that Hendricks County is a preferred venue pursuant to T.R. 75(A)(1) because all of the Defendants reside in or are located in Hendricks County. Hendricks County is also a preferred venue pursuant to T.R. 75(A)(4) because both Scribbles and the Church are located in Hendricks County.

[21] Because Hendricks County is a preferred venue and Marion County is not, the trial court erred in denying the Defendants' motion to transfer venue to Hendricks County. We therefore reverse and remand with instructions for the trial court to grant the Defendants' motion and transfer this case to Hendricks County.

[22] Reversed and remanded with instructions.

Kirsch, J., and Bailey, J., concur.

      We note that FSSA has a statutory right to assert a lien against any recovery that the Plaintiffs might obtain. See Ind. Code § 12-15-8-1 et seq. (setting forth the specific procedures that FSSA must follow to perfect its lien). FSSA may also waive its right to a lien. I.C. § 12-15-8-9. Here, at the time the Plaintiffs filed their complaint, FSSA had not performed any of the statutory prerequisites to perfecting a lien.

      The Indiana Supreme Court concluded that this Court's prior decisions that broadly interpreted Trial Rule 75(A)(2) were "contrary to the intent of T.R. 75(A) and [were] disproved." R & D, 859 N.E.2d at 336-37 (citing Swift v. Pirnat , 828 N.E.2d 444 (Ind. Ct. App. 2005) and Halsey v. Smeltzer , 722 N.E.2d 871 (Ind. Ct. App. 2000) ).


author: Kirsch, Judge.

text:
    Pamela WEBB, Appellant-Plaintiff, v. CITY OF CARMEL, Carmel Clay Parks Building Corporation, and Carmel/Clay Board of Parks & Recreation, Appellees-Defendants.
    Court of Appeals Case No. 29A05-1710-CT-2420
    Court of Appeals of Indiana.
    FILED April 30, 2018
    Attorney for Appellant: Stacy L. Kelley, Glaser & Ebbs, Indianapolis, Indiana
    Attorney for Appellees: Aimée Rivera Cole, Travelers Staff Counsel Indiana, Indianapolis, Indiana
   Kirsch, Judge.

[1] Pamela Webb ("Webb") appeals the trial court's grant of summary judgment in favor of City of Carmel ("Carmel"), Carmel Clay Parks Building Corporation ("the Corporation"), and Carmel/Clay Board of Parks & Recreation ("the Park Board") (collectively, "the Appellees") in her action against the Appellees for negligence. She raises the following restated issues for our review on appeal:

I. Whether the trial court abused its discretion in granting the Appellees' motion to strike portions of Webb's response in opposition to the motion for summary judgment; and
II. Whether the trial court erred in granting summary judgment in favor of the Appellees.

[2] We affirm.

Facts and Procedural History

[3] This case arises from an incident that occurred on June 20, 2014 at the Monon Community Center located at 1235 Central Park Drive East, Carmel, Indiana ("the Property"). Webb alleges that as she was walking down the gymnasium bleacher steps, the bottom step of the bleachers slid causing her to fall to the floor. Webb contends that the Property is "owned, operated, managed and/or maintained by" the Appellees. Appellant's App. Vol. II at 169. Webb alleges that the Appellees were negligent for failure to keep the entry/exit of the bleacher steps in a reasonably safe condition, failing to warn guests of the unsafe condition of the steps, failure to exercise reasonable care in the design, operation and maintenance of the steps, failure to provide adequate lighting, and/or failure to design a safe entryway for guests. Id. at 169-70.

[4] The Corporation is the sole owner of the Property. Id. at 81-108. The Corporation and Clay Township entered into a Sublease and Management Agreement with the Park Board granting the Park Board the exclusive right, power, and authority to access, occupy, improve, and operate the approximately 161 acres comprising Central Park in Carmel, Indiana, which includes the Property. Id. at 55-61, 141. Williams and Associates, Ltd. designed the Property. Id. at 141. Neither the Corporation nor Carmel developed, constructed, operated, designed, or maintained the Property. Appellees' App. Vol. II at 92. Carmel never owned the Property. Id. at 181. Carmel has no knowledge of the inspection practices of the Property. Id. at 183. The Park Board operates as a political subdivision on its own behalf and, pursuant to Article IV, Section 4.2(i) of the Interlocal Agreement, has the right to sue and be sued by or in its legal name as the "Carmel/Clay Board of Parks and Recreation" with service of process being had upon the President of the Board. Id. at 91, 96-126.

[5] On or about July 7, 2014, Webb served the Mayor of Carmel with a Tort Claim Notice. Carmel acknowledged receipt of Webb's Tort Claim Notice and referred the notice to their liability insurance carrier, Travelers Insurance ("Travelers"), and Travelers subsequently requested further documentation of Webb's medical records and billing statements. On May 25, 2016, almost two years after filing the Tort Claim Notice, Webb filed a Complaint for Damages against Carmel and the Indiana Parks and Recreation Association. On June 16, 2016, counsel for Carmel advised counsel for Webb that Carmel did not have any ownership interest in the Property. Id. at 187. On June 20, 2016, counsel for the City provided counsel for Webb with documents, confirming that the owner of the Property was the Corporation and the manager of the Property was the Park Board. Id. On September 13, 2016, Carmel served its responses to Webb's discovery, which included the same documents provided on June 20, 2016 by Carmel's counsel showing the Corporation as the owner and the Park Board as the operator of the Property and the lack of any role by the City in the development, construction, ownership, operation, design or maintenance thereof. Id. at 179-85, 188-94. Carmel filed a motion for summary judgment on November 4, 2016 on the basis that it did not own, manage, or control the Property. Id. at 6-14.

[6] On December 28, 2016, Webb filed a motion seeking leave to file an amended complaint naming the Corporation and the Park Board as defendants ("the Amended Complaint"). Along with the motion seeking leave to file the Amended Complaint, Webb filed a proposed summons for both the Corporation and for the Park Board. The trial court made a notation on the summonses that service was to be done by the attorney. Id. at 25-28. Webb's motion was granted on December 29, 2016. The Amended Complaint was filed December 30, 2016. The Park Board was not served with the summons or the Amended Complaint, nor was it served with a Notice of Tort Claim. Id. at 92. The Corporation was not served with the summons or the Amended Complaint. Id. at 195. On January 10, 2017, the trial court ordered that Carmel's motion for summary judgment was rendered moot by the filing of the Amended Complaint. On June 6, 2017, the Appellees filed a motion for summary judgment on the basis that the complaint against the Corporation and the Park Board was not filed within the statute of limitation and on the basis that Carmel was not the owner or operator of the Property, and Webb later filed her response in opposition to the summary judgment motion and designated evidence. Id. at 36-53, 196-212. The Appellees filed their reply to Webb's response as well as a motion to strike various purported representations of fact contained in Webb's response in opposition to the Appellees' motion for summary judgment. A hearing was held on the Appellees' motion for summary judgment and the motion to strike, and on September 25, 2017, the trial court entered an order granting the Appellees' motion to strike and motion for summary judgment. Appellant's App. Vol. II at 12-18. Webb now appeals.

Discussion and Decision

I. Motion to Strike

[7] Webb initially contends that the trial court abused its discretion in granting the Appellees' motion to strike several statements contained in her response in opposition to the Appellees' motion for summary judgment. A trial court has broad discretion in ruling on the admissibility of evidence. Morris v. Crain , 71 N.E.3d 871, 877 (Ind. Ct. App. 2017). Such discretion extends to rulings on motions to strike affidavits on the grounds that they fail to comply with the summary judgment rules. Id. "We will determine that a trial court has abused its discretion when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it." Id.

[8] Affidavits in support of or in opposition to a motion for summary judgment are governed by Indiana Trial Rule 56(E), which provides, in relevant part: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein." The requirements of Trial Rule 56(E) are mandatory; hence, a court considering a motion for summary judgment should disregard inadmissible information contained in supporting or opposing affidavits. Reed v. City of Evansville , 956 N.E.2d 684, 695-96 (Ind. Ct. App. 2011), trans. denied . Further, the party offering the affidavit into evidence bears the burden of establishing its admissibility. Id. at 696. A party may not rest on the mere allegations of his or her pleadings. T.R. 56(E). Unsupported factual assertions or bare factual allegations should be excluded from consideration.

[9] In their motion to strike, the Appellees sought to have six statements stricken from Webb's response in opposition to the Appellees' motion for summary judgment, and the trial court granted the motion to strike as to all six statements.

[10] First, the Appellees moved to strike the following statements: (1)"The City of Carmel approved and acknowledged receipt of Ms. Webb's Tort Claim Notice and referred the notice to their liability insurance carrier, Travelers, to handle Ms. Webb's personal injury claim and requested further documentation of Ms. Webb's medical records and billing statements"; and (2) "It is undisputed that the City of Carmel approved and acknowledged receipt of Plaintiff's Tort Claim Notice." Appellant's App. Vol. II at 184-185. The trial court granted the motion in part by striking the word "approved" from each sentence reasoning that no properly designated evidence supported the assertion that Carmel "approved" Webb's Tort Claim Notice. Id. at 13. Indiana Code section 34-13-3-11 provides that a claim is denied if the governmental entity fails to approve the claim in its entirety within ninety days, unless the parties have reached a settlement before the expiration of that period. Webb argues that the repeated requests by Travelers for her medical records and billing statements "suggests" that Carmel approved her claim and requested the documents to assess damages in preparation for settlement negotiations. Appellant's Br. at 19. This argument acknowledges that settlement discussions had not even begun. While Webb relies upon the Tort Claim Notice, the certified mail return receipt of the Tort Claim Notice, and correspondence related to the routine request by Travelers for Webb's medical records and itemized billing statements, id. at 19, those documents merely reflect a request for information and in no way support her argument that her Tort Claim Notice was approved by anyone. Appellant's App. Vol. II at 155-57. On the contrary, by operation of law pursuant to Indiana Code section 34-13-3-11, the Tort Claim Notice was deemed denied when Carmel failed to approve the claim in its entirety within ninety days and no settlement was reached. The trial court did not abuse its discretion in striking this portion of the statements as no evidence was presented to support it.

[11] Second, the trial court granted the Appellees' motion to strike the following statements: (1) "The Interlocal Cooperation Agreement verified that on June 20, 2014, Defendant City of Carmel owned, operated, managed, and/or maintained the Monon Community Center pursuant to the Interlocal Cooperation Agreement"; and (2) "It is undisputed that Defendant City of Carmel through the Interlocal Cooperation Agreement operated, managed and maintained the Monon Community Center located at 1235 Central Park Drive East, Carmel, IN as a recreation, fitness and nature center for the City of Carmel." Id. at 13-14. In her challenge to the trial court's striking of these statements, Webb relies solely on her original complaint and on the Amended Complaint as support for those statements. Appellant's Br. at 20. However, Webb had the burden to present sufficient evidence to demonstrate that a genuine issue of fact existed, and the factual allegations in her complaints were insufficient to meet this burden. See Abbott v. Bates , 670 N.E.2d 916, 923 (Ind. Ct. App. 1996) (stating that when the moving party files materials establishing the lack of any issues of material fact, the nonmovant may not rely upon his pleadings, but must bring forth specific facts, by affidavit or otherwise, to show a genuine issue for trial). Webb also asserts for the first time on appeal that the Interlocal Agreement fails to reference, mention, or identify the Property. Therefore, this argument is waived since it is being raised for the first time on appeal. Hrezo v. City of Lawrenceburg , 81 N.E.3d 1146, 1156-57 (Ind. Ct. App. 2017). Additionally, this argument directly contradicts the very statements Webb challenges as being improperly stricken by the trial court. Webb urges that the Interlocal Agreement fails to reference, mention, or identify the Property, so it cannot logically follow that the Interlocal Agreement also verified that Carmel owned, operated, managed, and/or maintained the Property. Therefore, the trial court correctly determined that these statements were not supported by any properly designated evidence, and it did not abuse its discretion when it struck them.

[12] Third, the trial court granted the Appellees' motion to strike the following statement, "It was not until November 4, 2016 when Defendant City of Carmel filed a Motion for Summary Judgment arguing and identifying additional parties who may be necessary for proper adjudication of Plaintiff's claims." Appellant's App. Vol. II at 15-16. In doing so, the trial court held that this statement was contradicted by evidence that was already before the trial court, reasoning that the Appellees' designated evidence showed: (1) on May 25, 2016, Webb filed a complaint against Carmel, and on June 16, 2016, counsel for Carmel advised Webb that Carmel did not have any ownership interest in the Property; (2) on June 20, 2016, Carmel's counsel provided Webb with documents to confirm the owner and manager of the Property; (3) on September 13, 2016, Carmel served its responses to Webb's discovery, which included the same source documents provided on June 20, 2016. Id. In challenging the striking of this statement, Webb makes no argument or cites to any facts to support her contention that it was not until November 4, 2016 when she learned of the additional parties necessary for the adjudication of her claims. Instead, she again cites only to the Amended Complaint, in which she alleges that Carmel owns the Property. The nonmovant may not rest upon the allegations or denials of her pleadings, but must respond with affidavits or other evidence setting forth specific facts showing there is a genuine issue in dispute. Abbott , 670 N.E.2d at 923. Thus, Webb failed to present any evidence beyond her complaint and fails to offer any argument to support her claim that she did not learn of the parties necessary for proper adjudication until November 4, 2016, when, in fact, the evidence clearly showed that she was made aware of this information as early as June 16, 2016. The trial court properly granted the motion to strike.

[13] Fourth, the trial court granted the Appellees' motion to strike Webb's statement "All remaining Defendants have the same insurance carrier, Travelers," holding that this assertion was not supported by any properly designated evidence before the trial court. Appellant's App. Vol. II at 16. Webb contends that it "is disingenuous, misleading and a misrepresentation for defense counsel to even suggest that all remaining defendants do not have the same insurance carrier" because all of the defendants are represented by an attorney from Travelers Staff Counsel Indiana. Appellant's Br. At 22. There is nothing in the record to support Webb's claim that parties represented by the same attorney must therefore also be represented by the same insurance carrier. Therefore, the trial court did not abuse its discretion when it granted the Appellees' motion to strike.

[14] Fifth, the trial court granted Appellees' Motion to Strike the statement "Defendants['] Interlocal Agreement is a private agreement between the Defendants. The public, including Plaintiff, were not privy to any of the relationships and/or agreements between the Defendants and thereby not privy to any other potential liable/responsible parties until after litigation commenced despite the City of Carmel having received, approved and acknowledged Plaintiff's Tort Claim Notice on or about July 7, 2014." Appellant's App. Vol. II at 16-17. In granting the motion to strike, the trial court held that the Interlocal Agreement is a public record and was filed with the Hamilton County Recorder on July 31, 2002. Id. Webb argues that this finding was not sufficient grounds to strike the statement. Appellant's Br. at 23. However, the stamp on the first page of the Interlocal Agreement is proof that it was filed for record on July 31, 2002. Appellant's App. Vol. II at 31. Furthermore, the Interlocal Agreement was provided by Carmel to Webb within the statute of limitations and more than six months prior to the filing of the Amended Complaint. Id. at 187; Appellees' App. Vol. II at 187. The trial court did not abuse its discretion in granting the motion to strike as to these statements.

[15] Lastly, the trial court granted the Appellees' motion to strike the statement, "Defendant's motion fails to designate any affidavits or other admissible evidence in support of the argument that the City of Carmel did not own, operate, manage and/or maintain the Monon Community Center on June 20, 2014." Appellant's App. Vol. II at 6-7. In doing so, the trial court noted that the Appellees provided the following evidence of ownership and management of the Monon Community Center: (1) Certified Lease Agreement and Option to Purchase between Clay Township and the Corporation; (2) the affidavit of Mark Westermeier, who oversaw the operations of the Carmel Clay Department of Parks and Recreation on behalf of the Park Board; (3) the Interlocal Agreement between Carmel and the Township; (4) Sublease and Management Agreement between the Township, the Corporation, and the Park Board; (5) Carmel's verified responses to Webb's interrogatories; and (6) Carmel's responses to Webb's Request for Production. Id. at 17-18. Webb argues that the trial court erred in striking this statement but does not offer any factual or legal citation for her argument and, instead, solely relies on her complaint and the Amended Complaint which is not sufficient to defeat a motion for summary judgment. Abbott , 670 N.E.2d at 923. We, therefore, conclude that the trial court properly struck this statement and did not abuse its discretion in granting the Appellees' motion to strike.

II. Summary Judgment

[16] When reviewing the grant of summary judgment, our standard of review is the same as that of the trial court. FLM, LLC v. Cincinnati Ins. Co. , 973 N.E.2d 1167, 1173 (Ind. Ct. App. 2012) (citing Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of Ind., Inc. , 832 N.E.2d 559, 562 (Ind. Ct. App. 2005) ), trans. denied . We stand in the shoes of the trial court and apply a de novo standard of review. Id. (citing Cox v. N. Ind. Pub. Serv. Co. , 848 N.E.2d 690, 695 (Ind. Ct. App. 2006) ). Our review of a summary judgment motion is limited to those materials designated to the trial court. Ind. Trial Rule 56(H) ; Robson v. Tex. E. Corp. , 833 N.E.2d 461, 466 (Ind. Ct. App. 2005), trans. denied . Summary judgment is appropriate only where the designated evidence shows there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. T.R. 56(C). For summary judgment purposes, a fact is "material" if it bears on the ultimate resolution of relevant issues. FLM , 973 N.E.2d at 1173. We view the pleadings and designated materials in the light most favorable to the non-moving party. Id. Additionally, all facts and reasonable inferences from those facts are construed in favor of the non-moving party. Id. (citing Troxel Equip. Co. v. Limberlost Bancshares , 833 N.E.2d 36, 40 (Ind. Ct. App. 2005), trans. denied ).

[17] A trial court's grant of summary judgment is clothed with a presumption of validity, and the party who lost in the trial court has the burden of demonstrating that the grant of summary judgment was erroneous. Henderson v. Reid Hosp. and Healthcare Servs. , 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans. denied . Where a trial court enters specific findings and conclusions, they offer insight into the rationale for the trial court's judgment and facilitate appellate review, but are not binding upon this court. Id. We will affirm upon any theory or basis supported by the designated materials. Id. When a trial court grants summary judgment, we carefully scrutinize that determination to ensure that a party was not improperly prevented from having his or her day in court. Id.

A. The Corporation and the Park Board

[18] Webb argues that the trial court erred when it found that her claims against the Corporation and the Park Board were not timely filed, and it granted summary judgment in favor of the two parties on that basis. Initially, she asserts the issue of whether the Amended Complaint related back is moot because the trial court granted her motion for leave to amend her complaint on December 30, 2016, presumably considering her contentions supporting the filing of the Amended Complaint, and the Appellees did not object at that time. Webb also contends that the Amended Complaint, which named the Corporation and the Park Board as defendants, was timely filed and related back to the date the original complaint was filed pursuant to Indiana Trial Rule 15. Webb maintains that she met all of the requirements of Trial Rule 15(C) because the Amended Complaint alleged identical contentions as the original complaint and merely added parties identified by Carmel as being necessary parties. Webb further claims that her Tort Claim Notice served on Carmel on July 7, 2014 sufficiently put the Corporation and the Park Board on notice of her claims because, after being served with the Tort Claim Notice, Carmel referred it to Travelers and, later, after the Amended Complaint was filed, the same Travelers attorney who already represented Carmel entered an appearance on January 17, 2017 to represent the Corporation and the Park Board. Webb also asserts that her mistake in believing that Carmel owned and operated the Property was reasonable and the Corporation and the Park Board knew or should have known that, but for a mistake in the identity of all proper parties, they would have been named in the original complaint.

[19] The Amended Complaint alleged that the incident in which Webb was injured occurred on June 20, 2014. Appellant's App. Vol. II at 169. In Indiana, a claim for personal injury must be commenced within two years after the cause of action accrues. Ind. Code § 34-11-2-4. Therefore, the statute of limitations expired on June 20, 2016. "The onus of bringing suit against the proper party within the statute of limitation is upon the claimant." Brown v. Vanderburgh Cnty. Sheriff's Dep't , 85 N.E.3d 866, 869 (Ind. Ct. App. 2017) (citing Rieth-Riley Constr. Co. v. Gibson , 923 N.E.2d 472, 478 (Ind. Ct. App. 2010) ).

[20] Webb does not dispute that the Amended Complaint was filed after the statute of limitations expired as to her initial claim. Rather, she argues that the Amended Complaint relates back pursuant to Trial Rule 15(C). Generally, a new defendant to a claim must be added prior to the running of the statute of limitations; however, Trial Rule 15(C) provides an exception to that rule by allowing the amendment to relate back to the date of the original complaint under certain circumstances. Raisor v. Jimmie's Raceway Pub, Inc. , 946 N.E.2d 72, 76 (Ind. Ct. App. 2011). Under Trial Rule 15(C) :

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within one hundred and twenty (120) days of commencement of the action, the party to be brought in by amendment:
(1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and
(2) knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against him.

Ind. Trial Rule 15(C). Therefore, in order for an amended complaint changing the party against whom the claim is brought to relate back it must meet the following requirements: (1) the claim in the amended complaint must have arisen out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original complaint; (2) within 120 days after the commencement of the action, the party to be brought into the action must have received notice of the institution of the action that it will not be prejudiced in maintaining a defense on the merits; and (3) within 120 days after commencement of the action, the party knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against the party to be brought in by the amendment. "The party who seeks the benefit of the relation back doctrine bears the burden of proving that the conditions of Trial Rule 15(C) are met." Raisor , 946 N.E.2d at 76.

[21] Initially, Webb contends that the trial court erred in granting summary judgment as to the Corporation and the Park Board because the Amended Complaint related back based on the language of the order granting her leave to amend her complaint, and the Corporation's and the Park Board's arguments for summary judgment were untimely. However, at the time of the December 30, 2016 order granting Webb leave to amend her complaint, only Carmel was a party to the action, and Carmel did not base its argument for summary judgment on the Amended Complaint being untimely filed as to it. On December 30, 2016, when the order was entered, neither the Corporation nor the Park Board were parties to this action, and pursuant to Indiana Trial Rule 4, the trial court did not have jurisdiction over them because they had not yet been served with a summons or complaint and had not yet entered an appearance. Webb's argument that the Amended Complaint related back based on the December 30 order fails, and the Corporation's and Park Board's motion for summary judgment were not untimely.

[22] The Corporation and the Park Board do not dispute that the claims asserted by Webb in the Amended Complaint arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original complaint. However, the Corporation and the Park Board assert that Webb has failed to satisfy the additional conditions of the rule governing relation back of amendments. That is, Webb failed to prove that, within 120 days after the original complaint was filed, the Corporation and the Park Board were on notice of the institution of the action against Carmel and that they knew or should have known that but for a mistake concerning the identity of the proper party, the action should have been brought against them.

[23] Here, the 120-day period from the date of the original complaint extended to September 22, 2016. Prior to that date, there was no evidence to suggest that the Corporation and the Park Board had any notice, actual or constructive, of Webb's legal action filed against Carmel. Although Trial Rule 15(C) does not require service of process on the new defendant, "notice of the pending of the claim must be such that the added party received either actual or constructive notice of the legal action." Porter Cnty. Sheriff Dep't v. Guzorek , 857 N.E.2d 363, 368 (Ind. 2006). The defendant to be added must have received notice of the institution of the action that the defendant will not be prejudiced in maintaining a defense on the merits. Id. It is not sufficient that the party is on notice that an injury has occurred or that the plaintiff has retained counsel. Id. at 368-69. Here, there was no evidence that the Corporation and the Park Board received any actual or constructive notice of Webb's original complaint against Carmel within the 120-day time period.

[24] Moreover, there was no showing of a basis to impute knowledge of the filing of Webb's original complaint to the Corporation and the Park Board. "Notice of the lawsuit may be actual notice or constructive notice, which may be inferred based on either the identity of interest between the old and new parties or the fact that they share attorneys." Id. at 369. "An identity of interest may permit notice to be imputed to the added party when the original and added party are so closely related in business or other activities that it is fair to presume that the added part[y] learned of the institution of the action shortly after it was commenced." Id. (citation and quotation marks omitted). No evidence was presented to show that Carmel and the Corporation and the Park Board were so closely related in business or other activities that it would be fair to presume that the Corporation and the Park Board learned of the action against Carmel in the 120-day time period.

[25] Notice may also be imputed based on shared legal counsel if it is reasonable to infer that the attorney for the initial party will have communicated to the added party that it may be joined in the action. Id. Webb argues that the Corporation and the Park Board received sufficient notice of the institution of the action against Carmel because they shared counsel with Carmel, and therefore, notice may be imputed because it is reasonable to infer that Carmel's attorney would have communicated to the Corporation and the Park Board that they may be joined in Webb's action against Carmel. However, there was no designated evidence presented that supported Webb's contention that parties shared legal counsel prior to the end of the 120-day period. The evidence most favorable to Webb reveals that counsel for Carmel entered an appearance on June 13, 2016. Webb designated evidence that an appearance was filed on behalf of the Corporation and the Park Board on January 17, 2017 by the same attorney representing Carmel. Although this evidence indicates that the parties were represented by the same attorney on January 17, 2017, it does not establish that they shared the same counsel at any time prior, specifically during the 120-day period after the original complaint was filed. No evidence was presented that the parties shared counsel prior to the filing of the Amended Complaint or during the 120-day period such that the Corporation and the Park Board can be said to have received such notice of the institution of the action against Carmel that the added parties will not be prejudiced in maintaining a defense on the merits. Therefore, there was no basis to impute knowledge of the filing of Webb's original complaint to the Corporation and the Park Board.

[26] Because Webb has failed to show that the Corporation and the Park Board had notice of her lawsuit prior to the expiration of the 120-day period, we need not reach the question of whether the Corporation and the Park Board "knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against [them]." Ind. Trial Rule 15(C)(2) ; Brown , 85 N.E.2d at 871. Pursuant to the requirements of Indiana Trial Rule 15(C), Webb's Amended Complaint did not relate back to the date of the original complaint. We, therefore, conclude that the trial court did not err in granting summary judgment in favor of the Corporation and the Park Board.

B. Carmel

[27] Webb contends that the trial court erred in granting summary judgment in favor of Carmel based on the trial court's finding that Carmel had no ownership interest in the Property. She asserts that Carmel failed to designate any evidence in support of its contention that it did not own or manage the Property. Webb further argues that the trial court failed to consider her designated materials.

[28] Under Indiana's summary judgment procedure, the party moving for summary judgment has the burden of establishing that no genuine issue of material fact exists. Lacy-McKinney v. Taylor Bean & Whitaker Mortg. Corp. , 937 N.E.2d 853, 865-66 (Ind. Ct. App. 2010) (citing Jarboe v. Landmark Cmty. Newspapers , 644 N.E.2d 118, 123 (Ind. 1994) ). Only after the moving party has met this burden with a prima facie showing that no genuine issue of material fact exists does the burden then shift to the non-moving party to establish that a genuine issue of material fact does in fact exist. Id. at 866.

[29] Here, Carmel had the burden to affirmatively negate Webb's claim that it owned and operated the Property. Carmel designated the following evidence to the trial court in support of its motion for summary judgment: the Interlocal Agreement; the Certified Lease Agreement and Option to Purchase between Clay Township and the Corporation; the affidavit of Mark Westermeier; a Certified Copy of Interlocal Agreement between Carmel and Clay Township; the Sublease and Management Agreement between Clay Township, the Corporation, and the Park Board; Carmel's Verified Responses to Webb's Interrogatories; and Carmel's responses to Webb's Request for Production. Appellees' App. Vol. II at 36-37. This evidence established that: the Corporation is the sole owner of the Property, Id. at 59-89, 179; the Corporation and Clay Township entered into a Sublease and Management Agreement with the Park Board granting the Park Board the exclusive right, power, and authority to access, occupy, improve and operate the approximately 161 acres comprising Central Park in Carmel, Indiana, which includes the Property, Id. at 90-93, 127-78; Williams and Associates, Ltd. designed the Property, Id. at 90-93; neither the Corporation nor Carmel developed, constructed, operated, designed or maintained the Property, Id. at 90-93; Carmel never owned the Property, Id. at 181; Carmel has no knowledge of the inspection practices of the Property, Id. at 183. Therefore, Carmel designated evidence to make a prima facie showing that it was not the owner or operator of the Property. The burden then shifted to Webb to designate evidence establishing a genuine issue of fact that Carmel owned or operated the Property, which she failed to do. We conclude that the trial court properly granted summary judgment in favor of Carmel.

[30] Affirmed.

[31] Baker, J., and Bradford, J., concur.

      "Generally, 'Interlocal Agreements,' also referred to as 'Interlocal Cooperation Agreements,' are formal vehicles through which municipalities or political subdivisions may eliminate barriers imposed by jurisdictional lines in order to offer public services more efficiently." City of Carmel v. Steele , 865 N.E.2d 612, 620 (Ind. 2007) (citing Osborne M. Reynolds, Jr., Local Government Law 43 (1982); see also Ind. Code § 36-1-7-1 to -15 (providing for Interlocal Cooperation Agreements) ). The primary types of agreements are service contracts, under which "one local government provides services to another, and joint enterprise contracts, under which two or more local units jointly undertake a project." Id.

      Indiana Park & Recreation Association was later dismissed from the action through a "Stipulation of Dismissal" filed by the parties on March 28, 2017. Appellees' App. Vol. II at 35.

      The Appellees assert that the trial court's order granting their motion to strike and motion for summary judgment should be affirmed on the basis that Webb failed to include necessary documents in her Appellant's Appendix. The Appellees note that Webb's appendix does not contain the Appellees' motion for summary judgment and designated evidence in support of the motion, nor does it contain Webb's response in opposition to the summary judgment motion, which all are documents necessary in determining the issues raised on appeal. The purpose of the appendix in civil appeals is to provide us "only those parts of the record on appeal that are necessary for the Court to decide the issues presented." Ind. Appellate Rule 50(A)(1). The appellant's appendix shall contain ... copies of the following documents ... (f) pleadings and other documents from the Clerk's Record in chronological order that are necessary for resolution of the issues raised on appeal." App. R. 50(A)(2)(f). Therefore, "when appealing the grant or denial of a motion for summary judgment, it is not sufficient for the appellant to include in the appendix only those documents designated by it to the trial court." Kelly v. Levandoski , 825 N.E.2d 850, 856 (Ind. Ct. App. 2005) (quotation omitted), trans. denied . Rather, appellants should include in their appellant's appendix all documents relating to the disposition of the motion for summary judgment, including any documents that the appellee designated. Id. Although an appellant's claim may be deemed waived on appeal for failure to include documents designated to the trial court in its appendix, we prefer to decide issues on their merits when possible. Id. (citing Hughes v. King , 808 N.E.2d 146, 148 (Ind. Ct. App. 2004) (dismissing appeal of grant of summary judgment when appellant failed to include all designated evidence in the appendix) ). Despite Webb's failure to provide the Appellees' motion for summary judgment and the designated evidence supporting the motion and her own response in opposition to the summary judgment motion, the Appellees provided the documents in their Appellees' Appendix. Accordingly, we may decide the issue on the merits.

      Webb argues for the first time on appeal that the Appellees' motion to strike was not permissible under the Indiana Trial Rules. Issues that are not raised before the trial court on summary judgment cannot be argued for the first time on appeal and are therefore waived. Hrezo v. City ofLawrenceburg, 81 N.E.3d 1146, 1156-57 (Ind. Ct. App. 2017). Webb has, therefore, waived this issue because she is raising it for the first time on appeal.

      Trial Rule 4(A) provides: "The court acquires jurisdiction over a party or person who under these rules commences or joins in the action, is served with summons or enters an appearance, or who is subjected to the power of the court under any other law."

      Although Webb maintains that the Corporation and the Park Board had notice of the action against Carmel such that the Amended Complaint should relate back to the date of the original complaint, evidence was presented that Carmel actually provided notice to Webb prior to the statute of limitations running that Carmel did not own, maintain, or manage the Property in an email dated June 17, 2016. See Appellees' App. Vol. II at 187. On June 20, 2016, counsel for Carmel advised Webb's counsel of the identity of the parties who owned and managed the Property and provided the supporting documentation. Id. Carmel served discovery responses to Webb on September 13, 2017, which again provided documentation of the ownership and operation of the Property, the very same documents previously provided on June 20. Id. 179-86, 188-94. Additionally, Carmel filed its first motion for summary judgment in November 2016 on the basis that the Property was owned and/or operated by either the Park Board or the Corporation, but not Carmel. Id. at 6-14. Despite these repeated notices of the proper parties to the action, Webb did not file the Amended Complaint until December 30, 2016, 193 days after the statute of limitations had run.