author: OPINION

text:
    CUSTOM RADIO CORP., Custom Management Group, Inc., Richard Yarger and Robert O'Brien, Appellants-Plaintiffs, v. ACTUARIES & BENEFIT CONSULTANTS, INC., and John M. Fogle, Appellees-Defendants.
    No. 32A01-1303-CC-143.
    Court of Appeals of Indiana.
    Oct. 9, 2013.
    Rehearing Denied Jan. 16, 2014.

      John C. Theisen, Nathaniel O. Hubley, Theisen Bowers & Associates, LLC, Fort Wayne, IN, Attorneys for Appellants.
    Seth B. Lewis, Seth B. Lewis Law Office, LLC, Danville, IN, Attorney for Ap-pellees.
   OPINION

BRADFORD, Judge.

CASE SUMMARY

Appellants-Plaintiffs Custom Radio Corp.; Custom Management Group, Inc.; Richard Yarger; and Robert O'Brien appeal the trial court's grant of summary judgment in favor of Appellees-Defen-dants Actuaries & Benefit Consultants, Inc. and John Fogle. From 1995 to 2004, Appellees provided consulting services to Appellants with respect to certain Welfare Benefit Plans investing in cash value life insurance. The plans were designed to comply with 26 U.S.C. § 419(A)(F)(6) so that Appellants' contributions thereto would be tax-deductible. In July of 2003, however, the Internal Revenue Service ("IRS") issued final regulations with regard to subsection 419(A)(F)(6), which rendered Appellants' plans non-compliant and their contributions retroactively taxable. A subsequent IRS audit revealed that Appellants owed nearly $750,000 in back taxes, penalties, and interest, but, on October 20, 2008, Appellants entered into a settlement agreement with the IRS, whereby the tax penalties were waived.

On October 19, 2010, Appellants filed suit against Appellees, claiming negligent provision of consulting services and breach of oral contract. Appellees moved for summary judgment on the basis that the statutes of limitation had expired. The trial court determined that Appellants' causes of action accrued and their respective statutes of limitation began to run on April 30, 2004, by which date Appellants allegedly knew that their Welfare Benefit Plans were non-compliant with 26 U.S.C. § 419(A)(F)(6). On appeal, Appellants argue that their causes of action did not accrue until October 20, 2008, the date on which they reached their settlement agreement with the IRS and thereby discovered their damages.

We conclude that Appellants' causes of action accrued and the statutes of limitation began to run on the date Appellants knew or, through ordinary diligence, could have discovered that their Welfare Benefit Plans were non-compliant with subsection 419(A)(F)(6) and that their plan contributions were retroactively taxable. But finding a genuine issue of fact as to whether Appellants knew or could have known this information by April 30, 2004, we hold that summary judgment is inappropriate. The judgment of the trial court is reversed and remanded.

FACTS AND PROCEDURAL HISTORY

Yarger and O'Brien are the owners and operators of Custom Radio Corp. ("Custom Radio"), a company that supplies the truck and bus market with audio and video systems. Fogle is the President of and a consultant with Actuaries & Benefit Consultants, Inc. ("ABC"), a company that specializes in designing, installing, and administering retirement plans. From 1995 to 2006, ABC and Fogle provided consulting services to Yarger and O'Brien with respect to Custom Radio. Throughout the course of this business relationship, Yar-ger was the point of contact at Custom Radio, and O'Brien was relatively uninvolved.

In late 1995, Fogle discussed with Yar-ger the purchase of cash value life insurance to fund a buy-sell agreement between Yarger and O'Brien with respect to Custom Radio. Fogle advised that using a Welfare Benefit Plan in compliance with 26 U.S.C. § 419(A)(F)(6) would enable Yarger and O'Brien to claim tax deductions for their plan contributions (4.e., their life insurance premiums). Fogle further advised Yarger and O'Brien to establish a management company for Custom Radio, such that only a select few employees could benefit from the Welfare Benefit Plan. Yarger and O'Brien established Custom Management Group, Inc. ("Custom Management") for this purpose and named themselves as the company's only employees.

In January of 1996, Custom Management enrolled in a Welfare Benefit Plan known as the Prime Financial Multiple Employer Welfare Benefit Fund (the "Prime Plan"). At the time, the IRS had issued no regulations regarding 26 U.S.C. § but the sponsor of the Prime Plan believed that it complied with that subsection. In June of 1997, however, the United States Tax Court issue its decision in Booth v. Commissioner, 108 T.C. 524 (1997), striking down the Prime Plan as non-compliant with subsection 419(A)(F)(6).

In February of 1998, in response to the Booth decision, Fogle recommended that Custom Management switch to a different Welfare Benefit Plan, the National Benefit Plan and Trust (the "National Plan"). At the time, the IRS still had issued no regulations regarding 26 U.S.C. § 419(A)F)(6), but, like with the Prime Plan, the sponsor of the National Plan believed it to comply with that subsection. On July 17, 2008, however, the IRS issued final regulations declaring Welfare Benefit Plans investing in cash value life insurance-like the Prime and National Plans-to be non-compliant with subsection 419(A)(F)(6).

The final regulations included the following provision regarding their effective date:

Except as explained below, these regulations-which generally clarify existing law-are effective for contributions paid or incurred in taxable years of an employer beginning on or after July 11, 2002. For contributions made before this effective date, the IRS will continue applying existing law, including the analysis set forth in Notice 95-34 and relevant case law. Thus, taxpayers should not infer that a contribution that would be nondeductible under the regulations would be deductible if made before that date. In this regard, taxpayers are reminded that the IRS has already identified transactions that are the same as or substantially similar to the transactions described in Notice 95-34 as listed transactions for purposes of Sec. 1.6011-4T(b)(2) of the Temporary Income Tax Regulations and Sec. 301.6011-2T(b)(2) of the Temporary Procedure and Administration Regulations[.]

Appellants' App. p. 61 (emphasis in original). As a result, Yarger's and O'Brien's contributions to the National Plan were retroactively taxable. (Appellants' App. 43-44, 46).

In February of 2004, in response to the IRS's final regulations, Fogle recommended that Custom Management switch to a single employer plan under 26 U.S.C. § 419(E). Custom Radio's CPA agreed with Fogle's recommendation, and Yarger decided to have the CPA handle the transaction. In April of 2004, Yarger informed Fogle that his services with respect to Custom Management's Welfare Benefit Plan were no longer needed.

In early 2007, the IRS notified Yarger and O'Brien that it would be conducting an audit of Custom Management's taxes. In March of 2008, the IRS completed its audit and reported to Yarger and O'Brien that they owed $291,578.82 and $441,023.76, respectively, in back taxes, penalties, and interest. Yarger and O'Brien, however, were able to negotiate settlements with the IRS, whereby the tax penalties were waived in exchange for their payment of the back taxes and interest. The IRS prepared settlement agreements reflecting these terms on September 25, 2008, which agreements O'Brien and Yarger signed on October 19 and 20, 2008, respectively.

On October 19, 2010, Yarger and O'Brien filed a complaint against ABC and Fogle, claiming negligent provision of consulting services and breach of oral contract. ABC and Fogle answered the complaint, asserting the affirmative defense that both claims were barred by their respective statutes of limitation. On November 15, 2012, ABC and Fogle moved for partial summary judgment with respect to their statute of limitation defense. Specifically, ABC and Fogle argued that Yarger and O'Brien's causes of action accrued as early as July 17, 2003, the date on which the IRS issued its final regulations with regard to 26 U.S.C. § 419(A)(M(6), and, at the latest, on April 30, 2004, the date by which Yarger and O'Brien allegedly knew that their Welfare Benefit Plans were non-compliant with that subsection. Yarger and O'Brien responded in opposition to summary judgment, arguing that their causes of action acerued on October 20, 2008, the date on which they entered into their settlement agreements with the IRS.

The trial court heard argument on ABC and Fogle's motion on January 28, 2013, and, on March 1, 2013, granted summary judgment in their favor. In its order, the court specifically found as follows:

10. In the instant case, while it is perhaps arguable whether the Statutes of Limitations applicable to this case began to run on July 17, 2008, it is beyond doubt that Yarger and O'Brien knew that Section 419(A)(f)(6) Welfare Benefit Plans had been rendered "experience rated" and had become "listed transactions" because by April 30, 2004, they had been told of those facts by Fogle himself during a meeting or meetings with at least one of their accountants, and had acted independently to adopt a Single-Employer Plan (the Arrowhead Trust), without bothering to inform Fogle.
11. The Court, therefore, finds that each of the applicable Statutes of Limitations in this case began to run on April 30, 2004, and thus expired as a matter of law on April 30, 2006[,] as to Plaintiffs' negligence claim and on April 30, 2010[,] as to Plaintiffs' breach of oral contract claim.

Appellants' App. p. 19. Where appropriate, additional facts will be supplied below.

DISCUSSION AND DECISION

Yarger and O'Brien challenge the trial court's grant of summary judgment in favor of ABC and Fogle. The standard of appellate review of a summary judgment ruling is the same as that used in the trial court. Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 695 (Ind.2000). Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind.Ct.App.2008). In reviewing the designated evidence, we construe all facts and reasonable inferences drawn therefrom in favor of the nonmoving party. Boggs, 730 N.E.2d at 695. And where, as here, the trial court enters findings of fact and conclusions of law in support of its judgment, such special findings are not binding on appeal. Whorley, 891 N.E.2d at 608.

I. Whether Appellants' Causes of Action Accrued When They Knew or Could Have Discovered that Their Welfare Benefit Plans Were Non-Compliant

Yarger and O'Brien argue that the trial court erred in determining that their causes of action accrued on the date by which they allegedly knew that their Welfare Benefit Plans were non-compliant with 26 U.S.C. § 419(A)(f)(6). Under Indiana's discovery rule, "a cause of action accrues and the statute of limitations begins to run when the plaintiff knew or, in the exercise of ordinary diligence, could have discovered that an injury had been sustained as a result of the tortious act of another." Wehling v. Citizens Nat. Bank, 586 N.E.2d 840, 843 (Ind.1992). "In other words, a cause of action acerues ... when the resultant damage of a negligent act is susceptible of ascertainment." Page v. Hines, 594 N.E.2d 485, 487 (Ind.Ct.App.1992). This rule applies to both tort and contract claims. Del Vecchio v. Conseco, Inc., 788 NE2d 446, 449 (Ind.Ct.App.2003).

Yarger and O'Brien claim their causes of action did not acerue until they reached their respective settlement agreements with the IRS. Prior to that date, Yarger and O'Brien contend, their damages were not ascertainable. Yarger and O'Brien, however, confuse "damage," a requisite element of any tort, with "damages," a measure of compensation. See Shideler v. Dwyer, 275 Ind. 270, 417 N.E.2d 281, 289 (1981). "For a wrongful act to give rise to a cause of action and thus to commence the running of the statute of limitations, it is not necessary that the extent of the damage be known or ascertainable but only that damage has occurred." Id. at 281-87 (holding devi-see's damage from a negligently drafted will, if any, occurred at the moment testator died rather than upon probate court's decree that the devise was void); see Filip v. Block, 879 N.E.2d 1076, 1082 (Ind.2008) (holding insureds' claim against insurance agent for negligent procurement of coverage accrued on the date insureds could have discovered they were underinsured rather than the date that fire destroyed their property).

Here, the damage resulting from ABC and Fogle's alleged negligent provision of consulting services and their breach of oral contract, if any, was Yarger's and O'Brien's retroactive tax liability for unauthorized deductions associated with their Welfare Benefit Plans. This liability arose on the date the IRS published its final regulations regarding 26 U.S.C. § declaring Welfare Benefit Plans investing in cash value life insurance non-compliant with that subsection. Therefore, we hold that Yarger and O'Brien's causes of action accrued and the statutes of limitation began to run on the date they knew or, through the exercise of ordinary diligence, could have discovered that their Welfare Benefit Plans were non-compliant with subsection 419(A)(F)(6) and that their plan contributions were retroactively taxable. See Whorley, 891 N.E.2d at 610 (holding heir's breach of fiduciary duty claim against estate's court appointed guardian, who never informed heir about estate's ineligibility for Special Use Valuation and its corresponding favorable tax regime, accrued on the date the IRS notified heir that estate's farmland had been denied Special Use Valuation and incurred increased tax liabilities).

II. Whether Appellants Knew or Could Have Discovered that Their Welfare Benefit Plans Were Non-Compliant by April 30, 2008

Yarger and O'Brien argue that there is a genuine issue of material fact as to whether they knew or could have discovered by April 30, 2004, that their Welfare Benefit Plans were non-compliant with 26 U.S.C. § 419(A)(F)(6). Based on our review of the designated evidence, we agree. During his deposition, Fogle testified that, in February of 2004, he told Yarger that the IRS had issued final regulations with respect to subsection 419(A)(F)(6) that had rendered the National Plan "experience rated" and contributions to it "listed transactions." Appellants' App. p. 47. Yarger, however, testified in his deposition that he was unaware that the IRS had issued final regulations with respect to subsection 419(A)(F)(6), and that the terms "experience rated" and "listed transactions" did not mean anything to him until Custom Management was audited in 2007. The parties also dispute whether Fogle told Yarger there would be no adverse tax consequences if Custom Management switched to a single employer plan.

From this evidence, we conclude there is a genuine issue of material fact as to whether Yarger and O'Brien knew or, through ordinary diligence, could have discovered by April 30, 2004, that their Welfare Benefit Plans were non-compliant with 26 U.S.C. § 419(A)(F)(6) and their contributions thereto, retroactively taxable. When application of a statute of limitation rests on questions of fact, it is generally an issue for a jury to decide. Wehling, 586 N.E.2d at 843. Therefore, summary judgment premised on the running of the statute of limitations is inappropriate.

The judgment of the trial court is reversed and remanded.

BAILEY, J., and MAY, J., concur.

      . On July 29, 2013, Appellants filed a motion to strike certain portions of Appellees' Appendix and Appellees' Brief. We have reviewed the complained of material and, finding it to have no bearing on our decision in this matter, deny Appellants' motion as moot.

      . It is unclear from the record whether this retroactivity reached all of Yarger's and O'Brien's contributions to the National Plan and whether it reached any of their contributions to the Prime Plan. The absence of this information, however, has no bearing on our decision in this matter.

      . We refer to Appellants collectively as "Yar-ger and O'Brien" for the remainder of this opinion.

      . Indiana Code section 34-11-2-4 requires Yarger and O'Brien's negligence claim to have been commenced within two years after that cause of action accrued. Indiana Code section 34-11-2-7 requires their breach of oral contract claim to have been commenced within six years of its accrual.


source: Caselaw Access Project

author: MATHIAS, Judge.

license: Public Domain

text:
    In re the Marriage of Leora McGEE, Appellant, v. Robert McGEE, Appellee.
    No. 45A04-1301-DR-33.
    Court of Appeals of Indiana.
    Oct. 24, 2013.
    Bessie M. Davis, Gary, IN, Attorney for Appellant.
    Jeanne Kelly, Merrillville, IN, Attorney for Appellee.
   OPINION

MATHIAS, Judge.

Leora McGee ("Wife") appeals the Lake Superior Court's grant of the petition for dissolution of marriage filed by the co-guardians of Robert McGee ("Husband") on Husband's behalf. Wife presents several issues on appeal, but we address a single dispositive issue, namely, whether the trial court erred in granting the petition where Indiana statute provides no authorization for a guardian to file a petition for dissolution on behalf of his or her ward.

We reverse.

Facts and Procedural History

Husband and Wife married on October 14, 2009 and lived together as a married couple until the spring of 2012. At that time, while Wife was in the hospital, Husband's daughters, the future co-guardians, Sharon Hilton ("Hilton") and Judith Kala-jian ("Kalajian") moved Husband to a nursing home in Michigan and called Wife at the hospital to explain what they had done. On June 28, 2012, Husband's daughters were appointed co-guardians of Husband's person and estate.

On August 2, 2012, Hilton and Kalajian filed, on Husband's behalf, a petition for dissolution of marriage. Wife filed a counter-petition on August 24, 2012. On November 1, 2012, a final hearing was held. Husband appeared by counsel and by co-guardian Hilton, and Wife appeared in person and by counsel. At the hearing, Hilton testified that it was her belief that Husband's marriage with Wife was irretrievably broken. Wife, on the other hand, testified that the marriage "was never broken. We have a good marriage." Tr. p. 9. On November 7, 2012, the trial court issued an order granting the petition for dissolution of marriage filed by Husband's co-guardians on his behalf. Wife now appeals.

Discussion and Decision

Although Wife asserts, as her basis for appeal, that the trial court lacked subject matter jurisdiction over Husband's co-guardians' petition for dissolution, the trial court did have, and we likewise have on appeal, subject matter jurisdiction over the present case. Therefore, rather than reviewing for lack of subject matter jurisdiction, we examine whether the trial court's order complies with this court's recent interpretation of the Indiana statute regarding the alleged authority of a guardian to commence and prosecute dissolution proceedings on behalf of a ward.

The right to dissolve a marriage is not a common law right; rather it is a purely statutory right. Therefore, a petition to dissolve a marriage can only be brought in the manner and within the limitations prescribed by statute. See State ex rel. Quear v. Madison Circuit Court, 229 Ind. 503, 99 N.E.2d 254, 256 (1951) (providing that "[the right to divorce is not a common law right, but depends upon legislative enactments").

When deciding questions of statutory interpretation, appellate courts need not defer to a trial court's interpretation of the statute's meaning. Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 942 (Ind.2001). Rather, we independently review the statute's meaning and apply it to the facts of the case under review. Id. Our court will not read into a statute that which is not the manifest intent of the General Assembly. Id. Thus, it is as important to recognize what a statute does not say as it is to recognize what it does say. Robinson v. Gazvoda, 783 N.E.2d 1245, 1250 (Ind.Ct.App.2003), trans. denied.

In State ex rel. Quear v. Madison Circuit Court, our supreme court clearly and decisively addressed the question of whether a guardian could file a petition for dissolution on behalf of the ward. It declared that "(there is no statutory authorization in any of the acts providing for the appointment of a guardian which would authorize a guardian to prosecute an action for divorcee" and, further, that "(aln insane person cannot bring an action for divorce because he cannot consent to the filing of the complaint." Quear, 229 Ind. at 506, 99 N.E.2d at 256-57.

Husband's co-guardians argue that the rule set forth in Quear has the effect of "[plrohibiting a guardian from bringing action to dissolve the marriage on behalf of his incapacitated ward [which] causes the guardian to be in conflict with his oath to preserve the property and protect the health and welfare of their incapacitated ward." Appellee's Br. at 5. While this claim is carefully expressed in terms of the co-guardians' responsibility to Husband, their ward and father, there is no evidence in the record of any competent expression of Husband desiring anything other than his continued marriage to Wife, and Wife clearly desires to remain married to Husband, whether he is competent or not. The real reason for the co-guardians' claims considers neither the love of Husband and Wife, nor their vows of "for better and for worse." For good reason, and as our supreme court made clear in Quear, and as re-emphasized in this court's recent opinion, Marriage of Tillman v. Tillman, 87A05-1212-DR-619, 2013 WL 3376920 (Ind.Ct.App. July 3, 2013), trans. denied, the right to divorce is a legislatively-created right, not a judicially-created right.

While the statutes governing dissolution and guardianship in Indiana have evolved since 1951, when Quear was decided, it is still the case today that neither the current Indiana statutes governing dissolution of marriage nor those governing the guardianship of incapacitated persons provide a means for a guardian to file a petition for dissolution of marriage on behalf of his or her ward. Dissolution of marriage actions in Indiana are governed by Indiana Code Title 31, Article 15, which provides that a party who seeks to initiate a dissolution of marriage proceeding must file a verified petition for dissolution. Ind. Code § 31-15-2-5. Indiana Code section 29-3-8-4 provides that the guardian of an incapacitated person may take action and make decisions for the benefit of the incapacitated person. For example, the guardian may "invest and reinvest the ? property of the protected person," may exercise control over the incapacitated person's business or income, and, if reasonable, may "delegate to the protected person certain responsibilities for decisions affecting the protected person's business affairs and well-being." Neither statute, however, provides the guardian with the right to file a petition for dissolution on behalf of the incapacitated person. In a world full of subsequent marriages and available pre-nuptial agreements, we will not read into a statute such a sweeping and potentially overreaching authority, authority that is not the clearly expressed intent of the General Assembly.

Therefore, since Indiana statute does not provide guardians with the authority to petition for dissolution of marriage on the ward's behalf, the trial court's grant of the petition for dissolution Hilton and Kalajian filed on Husband's behalf was improper.

Conclusion

For all of these reasons, we conclude that the trial court erred by granting the petition for dissolution filed by co-guardians Hilton and Kalajian on behalf of their ward, Husband.

Reversed.

NAJAM, J., and BROWN, J., concur.


author: ROBB, Chief Judge.

text:
    Debra MINOTT, in her official capacity as Secretary of the Family and Social Services Administration; Faith Laird, Director of the Division of Aging; Patti Bailey, Coordinator of the Residential Care Assistance Program, Appellants-Defendants, v. LEE ALAN BRYANT HEALTH CARE FACILITIES, INC.; Parkview Residential Care Center, L.L.C.; Parke County Residential Care Center, L.L.C.; Westpark Health Care Facilities, L.L.C.; Cheryl A. Holland; Ross Fisher; Patrick Zaborski; and Bryan Frison, Appellees-Plaintiffs.
    No. 49A05-1305-PL-213.
    Court of Appeals of Indiana.
    Nov. 7, 2013.

      Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, for Appellant.
    Ben T. Caughey, Brian J. Paul, Iee Miller LLP, Indianapolis, IN, for Appellee for Cole Taylor Bank.
    Shawna Meyer Eikenberry, Wendy W. Ponader, Faegre Baker Daniels LLP, Indianapolis, IN, for Co~Appe11ee CIBM Bank.
    Todd A. Richardson, Joseph P. Rompa-la, Kevin A. Morrissey, Lewis & Kappes, P.C., Indianapolis, IN, for the Non-Party Lawyers.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

The State of Indiana appeals from the trial court's order denying its request for restitution for damages paid under a judgment reversed by this court, raising the following issue for our review: whether the trial court improperly denied the State's request for restitution. Concluding the trial court erred in denying the State's motion for restitution, we reverse and remand for further proceedings not inconsistent with this opinion.

Facts and Procedural History

In February 2010, a number of residential care facilities (the "Providers") which provide services funded by the Family and Social Services Administration's ("FSSA") Residential Care Assistance Program ("RCAP") filed suit against the FSSA after it suspended funding for new RCAP residents and imposed fixed reimbursement rates. Following a bench trial, the Providers were awarded damages in the amount of $176,664.25. In June 2011, the State appealed and requested a stay of the judgment pending appeal. The State's request for a stay was denied by both the trial court and the Indiana Court of Appeals.

In September 2011, the State filed a Notice of Tender of Judgment and Motion for Apportionment and Assignment of Priority and attached copies of attorney liens filed by Williams, Bax & Saltzman, P.C. and Lewis & Kappes (the "Law Firms") pursuant to Indiana Code section 33-48-4-1. Shortly after, the State filed a Notice of Additional Garnishment Proceedings that affected the Providers' award, which involved Cole Taylor Bank and CIBM Bank, both of which were creditors of the Providers. Both Cole Taylor Bank and CIBM Bank intervened in the suit, claiming an interest in the judgment proceeds.

On November 2, 2011, the Providers submitted to the trial court an agreed order, providing for the release of the damages award held by the clerk, and the trial court entered the agreed order as requested on November 4, 2011. The agreed order provided for the disbursement of the $176,664.25 judgment proceeds as follows: $72,399.22 to the Law Firms, $65,259.48 to Cole Taylor Bank, and separate payments of $9,175.32 and $29,830.23 to CIBM Bank.

On June 8, 2012, this court issued an opinion reversing the trial court's judgment and remanding the case for further proceedings. See Gargano v. Lee Alan Bryant Health Care Facilities, Inc., 970 N.E.2d 696 (Ind.Ct.App.2012). That decision did not make any determination regarding restitution. Id.

On October 19, 2012, the State filed a Motion for Entry of Final Judgment in the trial court, which did not include mention of the $176,664.25 damages award. The trial court entered the requested final judgment order on November 8, 2012, vacating its original order awarding $176,664.25 in damages to the Providers. On January 4, 2013, the State filed a motion to set aside the agreed order and requested that the trial court order the Law Firms, Cole Taylor Bank, and CIBM Bank to return the money disbursed to them pursuant to the agreed order. The trial court denied the State's request for restitution on February 1, 2013 and denied the State's motion to correct error on April 10, 2018. This appeal followed.

Discussion and Decision

I. Standard of Review

An order for restitution is within the trial court's discretion and will be reviewed only for an abuse of that discretion. Roach v. State, 695 N.E.2d 934, 943 (Ind.1998). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances or if the decision is contrary to law. Vandenburgh v. Vandenburgh, 916 N.E.2d 723, 728 (Ind.Ct.App.2009).

II. Restitution

The State argues on appeal that the trial court abused its discretion by denying its motion for restitution, which requested that the Law Firms and other creditors of the Providers be liable in restitution for funds paid pursuant to a judgment that was later reversed. The Law Firms, in their appellees brief, argue that the State's motion for restitution was untimely, and even if the motion was timely filed, they contend that restitution following a reversal on appeal cannot be extended to non-party creditors.

A. Timeliness

The Law Firms dedicate much of their brief to the position that the State's motion for restitution was untimely. They maintain that the judgment entered by the trial court on November 8, 2012 was a final judgment which disposed of the entire suit. Thus, they believe that the State's motion for restitution must be treated as a post-judgment motion under either Indiana Trial Rule 59, as a motion to correct error, or Indiana Trial Rule 60(B), as a motion for relief from judgment. The Law Firms contend that the requirements were not met for either Rule 59 or Rule 60(B). In response, the State argues the November 8th order was not a final judgment because it did not address the issue of restitution and that the trial court maintained jurisdiction over the suit after the November 8th order. We find the State's position persuasive.

A "final judgment" is a judgment that "disposes of all issues as to all parties, to the full extent of the court to dispose of the same, and puts an end to the particular case as to all of such parties and all of such issues." Bueter v. Brinkman, 776 N.E.2d 910, 912-13 (Ind.Ct.App.2002) (citation omitted). "A final judgment reserves no further question or direction for future determination." Id. at 913 (citation omitted).

Although titled a "Final Judgment," the trial court's November 8th order does not qualify as a final judgment under the definition stated above. That order, pursuant to this court's decision to reverse, set aside the trial court's original findings of fact, conclusions of law, and judgment in favor of the Providers and entered judgment in favor of the State. The order did not, however, address the issue of restitution for the State's payment of $176,664.25 erroneously ordered by the trial court. Once the trial court's original judgment was set aside, the issue of restitution was the proverbial elephant in the room, one which neither the parties nor the trial court could have ignored. Following the trial court's November 8th judgment, did the Providers and their creditors believe restitution was a non-issue-that the State simply chose to let them keep $176,664.25 that was paid pursuant to a reversed judgment? We think not.

The issue of restitution arose only after this court's decision to reverse the trial court's judgment. The trial court's November 8th order neither addressed nor disposed of that lingering issue. Therefore, it was not a true final judgment. The State's motion for restitution requested relief that was not provided for or even contemplated by the trial court's order setting aside the original judgment in favor of the Providers. Because the State's motion did not seek relief from that judgment, we do not believe the State's motion should be treated as a request for post-judgment relief under Rule 59 or Rule 60(B)-untimely or otherwise.

Concluding that the State's request for restitution was not untimely, we next address its claim for restitution on the merits.

B. Restitution from Non-parties

The State seeks restitution from the non-party Law Firms and creditor banks in the amount of $176,664.25. "A person who is unjustly enriched at the expense of another is subject to liability in restitution." Restatement (Tuirp) or Restt TUTION AND Unjust EnricumEnt § 1 (2011). The equitable principle of restitution considers the issue in this case: payment of a judgment subsequently reversed on appeal.

A person who has conferred a benefit upon another in compliance with a judgment, or whose property has been taken thereunder, is entitled to restitution if the judgment is reversed or set aside, unless restitution would be inequitable or the parties contract that payment is to be final; if the judgment is modified, there is a right to restitution of the excess.

Restatement (First) or Restrrurion § 74 (1937). When a request for restitution rests on the reversal of a judgment, liability for restitution may extend beyond the named parties in the suit. "If payment has been made to the judgment creditor or to his agent, or to an officer who has paid the judgment ereditor, upon reversal of the judgment the payor is entitled to receive from the creditor the amount thus paid with interest" (First) or § 74 emt. d (1987).

It is the State's position that the Law Firms and ereditor banks are judgment creditors from whom the State may obtain restitution. The Law Firms, however, disagree and direct this court to another comment to Section 74 of the Restatement, which addresses restitution from an attorney or agent of a judgment creditor. That comment provides:

An attorney or other agent of the judgment creditor who receives payment from the judgment debtor or who receives the proceeds of sale of the debtor's things and who pays it to the judgment creditor before reversal is not liable if the judgment was valid before reversal and if he had no knowledge of any fraud used in securing it. Under the same conditions he is under no duty to repay money which he received on account of the judgment creditor and which he retains as payment for services or for a debt owed by the judgment creditor to him (see Illustration 20) since he received the money as a bona fide purchaser.

Restatement (First) or Restrrurion § 74 emt. h (1937). The question for this court, it seems, is whether the Law Firms were judgment creditors or merely entities which received payment from a judgment creditor (the Providers) for services rendered.

A "judgment creditor" is defined as

[a] person in whose favor a money judgment has been entered by a court of law and who has not yet been paid. One who has obtained a judgment against his debtor, under which he can enforce execution. A person in whose favor a money judgment is entered or & person who becomes entitled to enforce it. Owner of an unsatisfied judgment.

Pond v. MccNellis, 845 N.E.2d 1043, 1059-60 (Ind.Ct.App.2006) (quoting Buack's Law Dictionary 844 (6th ed. 1990)) (emphasis added), trans. denied. The State relies heavily on our decision in Pond, which held that a non-party attorney was a judgment creditor and therefore subject to restitution. Id. at 1059-61. Pond involved an award of attorney fees by the trial court in a dissolution of marriage. The award of attorney fees was reversed on appeal, and Pond sought restitution from his ex-wife's attorney, McNellis This court determined that MeNellis was a judgment creditor who was entitled to enforce the judgment. That conclusion was based on two cireumstances in the case. First, the statute governing attorney fees in an action for dissolution of marriage provided that "[the court may order the amount to be paid directly to the attorney, who may enforce the order in his name." Id. at 1060 (citing Ind.Code § 31-1-11.5-16 (Supp.1995), now codified as Ind.Code § 31-15-10-1) (emphasis omitted). Second, the court noted that MeNellis had "filed an attorney lien." Id.

The Law Firms argue that Pond is distinguishable because the Law Firms' fees were not a result of a court ordered award of attorney fees and because there is no similar statute specifically granting direct payment to the Law Firms. The Law Firms also point out that the reasoning in Pond relied at least in part upon a Washington Court of Appeals decision, In re Marriage of Mason, 48 Wash.App. 688, 740 P.2d 356 (1987), which was later distinguished by the Washington Supreme Court in a case more factually similar to this one, Ehsani v. McCullough Family P'ship, 160 Wash 2d 586, 159 P.3d 407 (2007). Indeed, the decisions in Pond and Mason relied upon a type of attorney fee statute that has no bearing in this case, and the court in distinguished Mason on that ground, concluding that the attorney was not a real party in interest without the presence of such a statute and thus not liable for restitution. Id. at 411-13. Nevertheless, we believe that the Law Firms and ereditor banks in this case were judgment creditors, and Ehsani is factually different from this case.

In Ehsani, the judgment was paid into the attorney's client trust account, and the direction of his clients," the attorney distributed the proceeds to the clients' creditors and to himself. Id. at 408. By contrast, the creditors in this case were not paid at the voluntary direction of the Providers. The creditors in this case were paid directly from judgment proceeds still in the hands of the trial court clerk, pursuant to a court order on the heels of liens filed against the judgment.

The Law Firms attempt to liken their payment to the client-directed payment in Eksani, but in reality, the Providers here had no choice in the matter. Liens filed against the Providers' judgment entitled the Law Firms to the judgment proceeds. As this court has previously stated, "an attorney's lien ... take{s] priority over the rights of other creditors, including the judgment creditor." In re Marriage of Hollingsworth, 671 N.E.2d 165, 168 (Ind.Ct.App.1996) (emphasis added). If the creditors' rights to the judgment were greater even than the Providers' rights, we see no logical reason to treat them differently for the purposes of restitution. Given their entitlement to the judgment proceeds, the appellees were, in effect, judgment ereditors.

Moreover, the agreed order entered by the trial court on November 4, 2011 gave the Law Firms and creditor banks the right to enforce the judgment. Indiana Trial Rule 71 provides: "When an order is made in favor of a person who is not a party to the action, he may enforce obedience to the order by the same process as if he were a party...." Because the creditors had the power to enforce the judgment in their own favor, they are judgment creditors and should be treated as such for the State's request for restitution.

Conclusion

The State's request for restitution was timely, and the Law Firms, Cole Taylor Bank, and CIBM Bank were judgment creditors or their lawful equivalent and are therefore liable for restitution. According ly, we conclude that the trial court erred by denying the State's request for restitution.

Reversed and remanded.

RILEY, J., and KIRSCH, J., concur.

      . The court in Eksani believed that the facts before it "mirror[ed]" those of Illustration 20, relating to comment h to Section 74 of the Restatement. Id. at 410 (citing Restatement (First) or Restrturion § 74 cmt. h, Ilustration 20 (1937)) ("A obtains a valid judgment against B for $3000. B pays the amount of the judgment to C, A's attorney. At A's direction C expends $1000 to satisfy A's creditors and retains $2000 as compensation for his services in this suit and in previous ones. Upon reversal of the judgment, B is not entitled to restitution from C").


author: BARNES, Judge.

text:
    Ryan R. SCHROEDER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 64A03-1302-CR-39.
    Court of Appeals of Indiana.
    Nov. 8, 2013.

      Bryan M. Truitt, Bertig & Associates, LLC, Matthew D. Soliday, Valparaiso, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Ryan Schroeder appeals his convictions for five counts of Class A felony child molesting and his aggregate sentence for five counts of Class A felony child molesting, one count of Class C felony child molesting, seven counts of Class C felony child exploitation, one count of Class D felony theft, seven counts of Class D felony possession of child pornography, and two counts of Class D felony voyeurism. We affirm.

Issues

Schroeder raises two issues, which we restate as:

I. whether the evidence is sufficient to sustain his Class A felony child molesting convictions; and
II. whether his fifty-four-year sentence is inappropriate in light of the nature of the offense and the character of the offender.

Facts

In early 2010, twenty-four-year-old Schroeder and nineteen-year-old Tara Tryon worked together at a restaurant and started a relationship. Soon, Schroeder started asking Tryon to take sexual pictures of herself, and she complied. Schroeder then started asking her to steal other women's underwear. In April 2010, Tryon started babysitting for K.B.'s children, five-year-old J.B. and two-year-old A.B. Schroeder repeatedly asked Tryon to perform sexual acts on the children and take pictures of the acts. Tryon complied and started sending him nude pictures of J.B. and A.B. and pictures of herself molesting A.B. Tryon performed the acts to "keep" Schroeder in her "life." Tr. p. 350. Schroeder asked for more pictures every time she babysat for the children. Tryon stopped babysitting the children in approximately June 2010. However, Schroeder continued requesting that Tryon send him pictures, including pictures of her having sex with other men and pictures of other women in bathroom stalls. Schroeder and Tryon talked about having children, and Schroeder said that he wanted to be the first to have sexual intercourse with their daughters. He also wanted Tryon to get pregnant by another man so that he could have sexual intercourse with the child.

In late September 2011, Tryon flew to Florida to see Schroeder, who was in the military at that time, but they argued, and Tryon had become unhappy with the relationship. In mid-October, Tryon ended the relationship, and Schroeder threatened to commit suicide. Tryon reported the suicide threat to Schroeder's commanders. On October 15, 2011, Schroeder texted Tryon, "u will hate me soon enough." State's Ex. 16.

The next day, Schroeder contacted an ex-girlfriend, Pam Spengler, and told her that Tryon had sent him pictures of a child molestation and that he did not know what to do with them. He asked Spengler to anonymously report the molestation and gave her the pictures and videos. Spengler then made an anonymous report of child molestation to the LaPorte County Sheriff's Department. Spengler identified Tryon as the perpetrator of the molestation, and she mailed an "SD card of the images and video" to the sheriffs department. Tr. p. 52. Spengler later identified herself to the sheriffs department and identified Schroeder as the person who gave her the images.

Schroeder was interviewed in Florida, and a search of his military quarters revealed an external hard drive that contained a series of extensively labeled folders. The folders contained photos and videos, including child pornography and voyeurism. The folders contained the photos and videos of Tryon molesting A.B. For example, one photo of Tryon molesting AB. was labeled "New fold-2/04271941.jpg" State's Ex. 10B.

The investigation into Schroeder revealed that he also had similar relationships with other women, including Adrienne Harris and AF., during the same time period. Harris met Schroeder while they were in the military in January 2011 and started a relationship with him. Schroeder also asked Harris to take pictures of other women in the shower, using the bathroom, and in dressing rooms, and Harris did so. Eventually Harris was transferred to Virginia, and Schroeder was transferred to Florida. Schroeder then began expressing an interest in seeing pictures of Harris's two-year-old daughter. In June 2011, Harris began sending nude pictures of her daughter to Schroeder. Schroeder would threaten Harris and "blackmail" her if she did not comply with his requests. Tr. p. 218. Schroeder asked Harris to have sex with other men, take pictures, and send him the pictures. He also asked Harris to touch her daughter sexually and photograph or videotape the molestations. Schroeder also talked about having a child with Harris and said "that he wanted to be able to do whatever he wanted with the kid." Id. at 242.

Schroeder eventually told Harris that he turned Tryon in because he was mad at her. Harris asked Schroeder "how all this got started." Id. at 235. Schroeder said that he has "always had a curiosity about kids that he fulfilled through ex-girlfriends." Id. Schroeder discussed Tryon with Harris and said that "he had asked her to send him pictures of the boy." Id. at 242.

The investigators also learned that Schroeder started dating AF. in April 2010, when she was sixteen years old. After they started dating, Schroeder asked AF. for sexual pictures and videos of herself. He also started demanding pictures of her friends and her mother. A.F. took nude pictures of her mother without her mother's permission and sent them to Schroeder. AF. also took pictures and videos of other women under bathroom stalls at Schroeder's request. Schroeder told A.F. that he wanted to have a lot of kids and that "he wanted to be the first person that his daughter slept with." Id. at 320. Schroeder told AF. that she "wasn't good enough for him" and that he was going to leave her if she did not comply with his demands. Id. at 310.

Eventually, Tryon was arrested and charged with five counts of Class B felony child molesting, one count of Class C felony child molesting, and seven counts of Class C felony child exploitation. The State charged Schroeder with five counts of Class A felony child molesting, one count of Class C felony child molesting, seven counts of Class C felony child exploitation, one count of Class D felony theft, seven counts of Class D felony possession of child pornography, and two counts of Class D felony voyeurism. The child molesting, child exploitation, theft, and one of the voyeurism charges were based on his accomplice liability with Tryon as the principal. The other voyeurism charge was based on his accomplice liability with A.F. as the principal. Ultimately, A.F. was not charged for her conduct, and she testified against Schroeder. Harris pled guilty in federal court to one count of production of child pornography, and she is serving twenty-five years in federal prison. She also testified against Schroeder.

Schroeder filed a motion to dismiss Counts 1 through 5, the Class A felony child molesting charges. He argued that, under the accessory statute, he could only be convicted of a Class B felony because Tryon was under twenty-one years old. He also argued that Counts 1 through 5 should be dismissed because they violated the Privileges and Immunities Clause of the Indiana Constitution and the Equal Protection Clause of the Fourteenth Amendment. The trial court denied Schroeder's motion.

A jury found Schroeder guilty as charged. As aggravators, the trial court found a significant impact on the victims' family, the tender age of A.B., Harris and Tryon's positions of trust, the fact that Schroeder had ample time to reflect on his actions but continued to repeat the conduct, and Schroeder's complicated scheme to obtain a library of child pornography. The trial court also found Schroeder's criminal history as a minimal aggravator. The trial court rejected Schroeder's proposed mitigators. The trial court then sentenced Schroeder to concurrent forty-five-year sentences for each of the Class A felony child molesting convictions, concurrent six-year sentences for each of the Class C felony convictions, concurrent three-year sentences for the Class D felony theft and possession of child pornography convictions, and concurrent two-year sentences for the Class D felony voyeurism convictions. The trial court ordered that the forty-five-year sentences be consecutive to the six-year Class C felony sentences and also consecutive to the Class D felony convictions for an aggregate sentence of fifty-four years. Schroeder now appeals.

Analysis

I. Sufficiency of the Evidence

Schroeder argues that the evidence is insufficient to sustain his convictions for Class A felony child molesting. Schroeder does not challenge his remaining convictions. When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.2009). "We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence." Id. We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Id.

The offense of child molesting is defined by Indiana Code Section 35-42-4-3(a), which provides: "A person who, with a child under fourteen (14) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits child molesting, a Class B felony." The offense is a Class A felony if "it is committed by a person at least twenty-one (21) years of age." Ind.Code § 35-42-4-8(a)(1). Schroeder was charged with Class A felony child molesting for "knowingly or intentionally aid[ing], inducing], or caus[ing] Tara Tryon to commit the offense of Child Molesting, as she knowingly or intentionally performed or submitted to sexual intercourse or deviate sexual conduct with a child under fourteen (14) years of age...." Appellant's App. pp. 32-34.

According to Schroeder, the evidence is insufficient because he was charged with a Class A felony rather than a Class B felony. Schroeder notes that Tryon was less than twenty-one years old, and the offense she committed was a Class B felony. Schroeder was charged with a Class A felony because he was twenty-four years old. However, he argues that, by aiding Tryon, he committed the same offense that she committed, ie., a Class B felony, not a Class A felony.

We disagree with Schroeder's interpretation of the relevant statutes. Schroeder confuses the offense with the offense's degree, grade, or classification. Under the accomplice liability statute, "[al person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense .." Ind.Code § 35-41-24. Our supreme court has noted that "there is no separate crime of being an accessory to a crime or aiding and abetting the perpetrator of a crime; rather, a defendant may be convicted as a principal upon evidence that he aided or abetted in the perpetration of the charged crime." Sanquenetti v. State, 727 N.E.2d 437, 441 (Ind.2000). Under the accomplice liability statute, "'an actor who would have been considered an accessory under the common law now viecariously commits the actual offense," and 'individuals convicted of felonies in Indiana are considered to have been convicted on the weight of their own actions even if the accomplice liability statute is utilized by the court or jury to determine guilt?" Id. (quoting Johnson v. State, 687 N.E.2d 345, 349 (Ind.1997)). Furthermore, "(aln accomplice may be tried and convicted when the proof of the underlying crime is sufficient despite the fact that the other actor is not prosecuted, not convicted, or even acquitted." Id. "Under the statute, the individual who aids another person in committing a crime is as guilty as the actual perpetrator." Id.

The offense that Tryon committed was performing deviate sexual conduct with a child under fourteen years of age. I.C. § 35-42-4-3(a). Tryon's offense was classified or graded as a Class B felony due to her age. See id.; see also 8 Inp. Law Encyc. Criminal Law § 4 (discussing that the term "degree of crime" denotes a particular grade of crime more or less culpable than another grade of the same offense). Schroeder vicariously committed the actual offense of child molesting and, regardless of Tryon's Class B felony charge, his offense was properly classified as a Class A felony due to his age. We conclude that, to prove Schroeder's accomplice liability for child molesting, the State was required to show that he was at least twenty-one years old and that he knowingly or intentionally aided, induced, or caused Tryon to perform deviate sexual conduct with A. B., who was less than fourteen years old. See 1.0. §§ 35-42-4-8, 35-41-2-4. The State presented sufficient evidence to meet its burden.

II. Inappropriate Sentence

Schroeder argues that his sentence is inappropriate in light of the nature of the offense and the character of the offender. Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized by statute if, after due consideration of the trial court's decision, we find that the sentence is inappropriate in light of the nature of the offense and the character of the offender. When considering whether a sentence is inappropriate, we need not be "extremely" deferential to a trial court's sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind.Ct.App.2007). Still, we must give due consideration to that decision. Id. We also understand and recognize the unique perspective a trial court brings to its sentencing decisions. Id. Under this rule, the burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006).

The principal role of Rule 7(B) review "should be to attempt to leaven the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve a perceived 'correct' result in each case." Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.2008). 'We "should focus on the forest-the aggregate sentence-rather than the trees-consecutive or concurrent, number of counts, or length of the sentence on any individual count." Id. When reviewing the appropriateness of a sentence under Rule 7(B), we may consider all aspects of the penal consequences imposed by the trial court in sentencing the defendant, including whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.2010).

The nature of the offense is that Schroeder persuaded Tryon to molest two-year-old A.B. and send him pictures and videos of the offenses. Over the three months that Tryon babysat for A.B. and his sister, Schroeder would specify exactly what actions Tryon should perform, and he was aroused by the pictures and videos sent to him. At the same time that he was convincing Tryon to send him pictures and videos, he was also persuading other women, including A.F. and Harris, to do the same. Schroeder also persuaded Tryon and A.F. to photograph unsuspecting women in public restrooms, dressing rooms, and their own homes. Schroeder saved the pictures and videos and created an extensively labeled library on an external hard drive. The trial court properly described Schroeder and Tryon as "horrid, [vile], illegal, disgusting, sexual perpetrators." Sent. Tr. p. 23. We find Schroeder's argument that the nature of the offense is less repulsive because A.B. was too young to remember the molestations unpersuasive. Further, we find Schroeder's use of Tryon's position of trust to be an appropriate consideration in reviewing the nature of the offense.

Schroeder's character also does not warrant a reduction in his sentence. The evidence showed that Schroeder turned Tryon in to the police because he was mad at her, not because he objected to the child molestations and child pornography. In fact, he had been in possession of the child pornography for quite some time and had created an extensive library of photographs and videos. Schroeder also told Tryon, A.F., and Harris that he wanted to have sexual contact with his future children. At sentencing, he expressed no remorse for his own actions and continued to blame the women in his life. He claimed that his only crime was not reporting the molestations fast enough. The evidence shows otherwise. Given the evidence presented, we conclude that Schroeder's fifty-four-year sentence is not inappropriate in light of the nature of the offense and the character of the offender.

Conclusion

The evidence is sufficient to sustain Schroeder's convictions for the Class A felony child molestation, and his fifty-four year sentence is not inappropriate. We affirm.

Affirmed.

CRONE, J., and PYLE, J., concur.

      . At the time of Schroeder's trial, the charges against Tryon had not been resolved. On appeal, Schroeder submitted copies of Tryon's plea agreement and sentencing order in Appellant's Appendix. However, those documents were not part of the record on appeal, and the State filed a motion to strike the documents. By a separate order, we grant the State's motion to strike. Even if we were to take judicial notice of the records, as Schroeder requests, the outcome here would not change.

      . The State interpreted Schroeder's argument in his appellant's brief as questioning the validity of the various aggravators. In his reply brief, Schroeder clarified that he was only challenging the sentence under Indiana Appellate Rule 7(B). Thus, we address only the appropriateness of the sentence.


author: VAIDIK, Judge. BAKER, Judge,

text:
    Thomas HAGGERTY and, Cathy Haggerty, Appellants/Cross-Appellees, v. ANONYMOUS PARTY 1, Appellee, Anonymous Party 2, and Anonymous Party 3, Appellees/Cross-Appellants.
    No. 53A01-1210-CT-472.
    Court of Appeals of Indiana.
    Nov. 20, 2013.

      Carl Paul Lamb, Carl Lamb and Associates, Bloomington, IN, Attorney for Appellants.
    Scott P. Whonsetler, James N. Martin, Jr., Whonsetler & Johnson, PLLC, Louisville, KY, Robert G. Zeigler, Jennifer A. Padgett, Zeigler Cohen & Koch, Indianapolis, IN, Attorneys for Appellees.
   OPINION

VAIDIK, Judge.

Case Summary

In the winter of 2008, pawn-shop owner Thomas Haggerty was hospitalized for complications related to his alcoholism. Immediately after his release from the hospital, he traveled to a treatment facility in Indianapolis, but he became agitated when professionals there recommended inpatient treatment. He refused treatment and informed staff and security officers that he would walk back to his home in Bloomington, despite the fact that it was nighttime and the temperature was well below freezing. Security officers took him to a nearby medical facility, where he was detained and evaluated. He was treated and released four days later.

Thomas and his wife Cathy (collectively, "the Haggertys") later filed a proposed medical-malpractice complaint against three parties ("the anonymous parties") involved in Thomas's detention. The Hag-gertys also filed an action against the same parties in Monroe Cireuit Court. The anonymous parties filed motions for summary judgment, arguing that they were immune from liability under Indiana law. The trial court granted summary judgment for the first anonymous party, API, but denied the joint summary-judgment motion of the remaining parties, AP2 and AP3. The Haggertys appealed the grant of summary judgment. AP2 and AP3 filed a belated motion to certify the trial court's order for interlocutory appeal. The trial court granted the belated motion, and this Court accepted jurisdiction over the combined appeal.

The parties make a number of arguments on appeal. The main arguments, however, pertain to jurisdiction and immunity. The Haggertys argue that the trial court did not have jurisdiction to rule on the issue of immunity because that issue was reserved for the medical review panel. They also argue that none of the anonymous parties are entitled to immunity under Indiana law because they violated Thomas's personal or civil rights.

We conclude that the trial court had jurisdiction to rule on the issue of immunity because it is an affirmative defense. We also conclude that the Haggertys' suit against the anonymous parties is barred by statutory immunity. We affirm the trial court's grant of summary judgment, on immunity grounds, to API. We conclude that there is no genuine issue of material fact as to whether immunity also applies to AP2 and AP3; thus, we reverse the trial court's denial of their motion for summary judgment. We affirm in part and reverse in part.

Facts and Procedural History

Thomas Haggerty, a pawn-shop owner living in Bloomington, Indiana, has a long history of alcohol abuse. By age fifty-eight, Thomas consumed twelve beers and a liter of vodka daily. One day in January 2008, Thomas was hospitalized after he lost consciousness at his home. Doctors at a local hospital determined that Thomas had experienced a grand-mal seizure.

Thomas was hospitalized for ten days. During this time he was treated for alcohol withdrawal and severe anemia caused by his alcoholism. Thomas was also treated in the hospital's Behavioral Care Unit for other alcohol-related complications. On Wednesday, January 31, Thomas was discharged. The plan was that Thomas would travel immediately to AP1, a facility in Indianapolis, to receive treatment for his alcoholism.

On the day he was discharged, Cathy drove Thomas to AP1. When they arrived that evening, Thomas was upset to learn that he needed in-patient treatment. He became uncooperative and walked out of AP1. Although the temperature was about eight degrees, Thomas proclaimed he would walk from Indianapolis to his home in Bloomington, a distance of approximately fifty miles.

AP1 called security officers at AP2, a nearby medical facility, and told them that Thomas had left the facility against medical advice and was threatening to walk to Bloomington. AP2's security officers found Thomas walking along a nearby road and stopped to speak to him. Cathy arrived and told the officers that Thomas had a history of alcohol abuse and was supposed to be receiving in-patient treatment for his alcoholism at API. Thomas refused to return to the facility and insisted he would walk home. AP2's security officers restrained Thomas and took him to AP2.

After Thomas arrived at AP2, a doctor completed an application for emergency detention. In the application, the doctor noted that Thomas had a psychiatric disorder, was an alcoholic, and posed a danger to himself because he was threatening to walk to Bloomington. The doctor also indicated his belief that if Thomas was not restrained, he would kill himself. Appellants' Confidential App. p. 211-12. Thomas was admitted to AP2 for treatment.

Other AP2 doctors and medical personnel evaluated Thomas. Every evaluation indicated that Thomas was suffering from a number of alcohol-related complications. The evaluations were conflicting, however, as to Thomas's suicide risk-an in-patient suicide evaluation stated that Thomas had no suicidal ideation, but a daily flow sheet noted that Thomas posed a moderate suicide risk. See Appellants' Confidential App. p. 298,801.

Thomas was released on Tuesday, February 5. He received additional treatment at AP1 before returning to his home in Bloomington.

The Haggertys filed a proposed complaint for medical malpractice in 2010. AP1, AP2, and AP3-a corporate entity related to AP2-were named as defendants in the proposed complaint. The Haggertys also filed an action against the same parties in Monroe Cireuit Court. API1 filed a motion for preliminary determination of law for summary judgment. AP2 and AP3 likewise filed a joint motion for preliminary determination for summary judgment. All three anonymous parties argued that they were immune from liability under Indiana Code section 12-26-2-6, which grants immunity to those who assist or participate in proceedings for an individual's detention or commitment.

The Haggertys filed a brief in opposition to the summary-judgment motions. They designated eleven exhibits as evidence. These exhibits included portions of Thomas's medical records, the application for emergency detention, and other medical documents. The Haggertys did not designate any affidavits. Weeks later, the Hag-gertys sought to amend their designated evidence to add affidavits of Thomas and Cathy, their amended proposed complaint, and three additional portions of Thomas's medical records. The anonymous parties objected to the Haggertys' motion to amend their designated evidence.

After hearing oral argument, the trial court issued an order on the pending motions. See Appellants' App. p. 133. The trial court granted the Haggertys' motion to amend their designated evidence. The court also concluded that it had jurisdiction to preliminarily determine the issue of immunity. It determined that there was no genuine issue of material fact that AP1 was immune and granted API's summary-judgment motion. Id. However, it concluded that there was a genuine issue of material fact regarding AP2 and AP3's immunity, so it denied summary judgment as to AP2 and AP3. Id.

The Haggertys filed a motion to correct error, and AP2 and AP3 filed a motion to reconsider. The trial court denied both motions. The Haggertys filed notice of appeal. AP2 and AP3 later filed a belated motion requesting certification of the court's order for interlocutory appeal. AP2 and AP3 sought to join the Hagger-tys' pending appeal against API, which involved the same issues raised by AP2 and AP3 in their motion for summary judgment. The trial court granted the belated motion for certification, and this Court accepted jurisdiction over the combined appeal.

Discussion and Decision

I. Jurisdiction

The Haggertys first challenge the trial court's authority to preliminarily determine the issue of immunity.

A trial court's jurisdiction to intervene in the workings of a medical review panel through a motion for preliminary determination of law is governed by Indiana Code section 34-18-11-1. In relevant part, the Section provides that:

(a) A court having jurisdiction over the subject matter and the parties to a proposed complaint filed with the commissioner under this article may, upon the filing of a copy of the proposed complaint and a written motion under this chapter, do one (1) or both of the following:
(1) preliminarily determine an affirmative defense or issue of law or fact that may be preliminarily determined under the Indiana Rules of Procedure; or
(2) compel discovery in accordance with the Indiana Rules of Procedure.
(b) The court has no jurisdiction to rule preliminarily upon any affirmative defense or issue of law or fact reserved for written opinion by the medical review panel under IC 34-18-10-22(b)(1), IC 34-18-10-22(b)(2), and IC 34-18-10-22(b)(4).

In Griffith v. Jones, our Supreme Court consulted the Indiana Trial Rules and defined trial courts' jurisdiction in this context explicitly:

Our review of the rules reveals that Trial Rule 8(C) contains a listing of affirmative defenses, Trial Rule 12(B) and (C) sets forth a listing of matters which can be preliminarily determined by motion, and Trial Rules 26 through 37, inclusively, contain the discovery rules. We hold that Indiana Code section 16-9.5-10-1 specifically limits the power of the trial courts of this State to preliminarily determining affirmative defenses «under [the] Trial Rules, deciding issues of law or fact that may be preliminarily determined under Trial Rule 12(D), and compelling discovery pursuant to Trial Rules 26 through 37, inclusively.

602 N.E.2d 107, 110 (Ind.1992) (emphasis added).

Thus, under Griffith, trial courts may preliminarily determine affirmative defenses in medical-malpractice cases. Indiana Trial Rule 8(C), which sets forth affirmative defenses, does not specifically refer to immunity; it provides that "a responsive pleading shall set forth affirmatively and carry the burden of proving: [list of defenses] and any other matter constituting an avoidance, matter of abatement, or affirmative defense." The list of affirmative defenses found in the rule is not exhaustive. Willis v. Westerfield, 839 N.E.2d 1179, 1185 (Ind.2006) (citing Paint Shuttle, Inc. v. Cont'l Cas. Co., 733 N.E.2d 513, 524 (Ind.Ct.App.2000), trans. denied ).

Whether a defense is affirmative "depends upon whether it controverts an element of a plaintiff's prima facie case or raises matters outside the seope of the prima facie case." Id. (citations omitted). An affirmative defense is a defense "upon which the proponent bears the burden of proof and which, in effect, admits the essential allegations of the complaint but asserts additional matter barring relief." Id. In other words, it must "admit the allegations of the complaint but nevertheless excuse fault." Id. By asserting immunity in this case, the anonymous parties admitted that they detained Thomas but argued that their actions were nevertheless excused because Indiana Code section 12-26-2-6 grants them immunity. We conclude that immunity is an affirmative defense, and for this reason, the trial court had jurisdiction to rule on the issue. See Griffith, 602 N.E.2d at 110.

In reaching this conclusion, we reject the Haggertys' argument that the issue of immunity was reserved for the medical review panel. This Court has concluded that some determinations-such as standard-of-care determinations and others that require an expert opinion-are reserved for medical review panels; thus, trial courts may not rule on those issues. See Miller v. Martig, 754 N.E.2d 41, 44 (Ind.Ct.App.2001); Rocca v. S. Hills Counseling Ctr., Inc., 671 N.E.2d 913, 915 (Ind.Ct.App.1996) (citing Dixon v. Siwy, 661 N.E.2d 600 (Ind.Ct.App.1996)), reh'g denied. But the trial court did not need an expert opinion to determine whether the anonymous parties could claim immunity under Section 12-26-2-6; this is a legal determination that the court was capable of making on its own.

We conclude that the trial court had jurisdiction to preliminary determine the issue of immunity.

II. Certification

The Haggertys contend that the trial court erred by granting AP2 and AP3's motion for belated certification. The Haggertys also challenge this Court's decision to accept jurisdiction over AP2 and AP3's interlocutory appeal.

A. Trial Court

We are not bound by a trial court's determination on the issue of certification. In re Buchanan v. Vowell, 926 N.E.2d 515, 518 (Ind.Ct.App.2010) (citation omitted). We will reverse the trial court's decision only for an abuse of discretion, which exists when the trial court's decision is clearly against the logic and effects of the facts and circumstances before the court or the réasonable and probable deductions to be drawn therefrom. Id. (citing Nw. Towing & Recovery v. State, 919 N.E.2d 601 (Ind.Ct.App.2010)).

A motion requesting certification of an interlocutory order must be filed in the trial court within thirty days of the interlocutory order. Appellate Rule 14(B)(1)(a). AP2 and AP3 filed a motion requesting certification 105 days after the interlocutory order was issued. However, a trial court may permit a belated motion for good cause. Id. The Haggertys contend that AP2 and AP3 did not show good cause justifying the belated grant of certification.

There is a dearth of cases discussing good cause in this context. Buchanan, 926 N.E.2d at 518. Nonetheless, we cannot say that the trial court abused its discretion in this case. AP2 and AP3 sought belated certification because the Hagger-tys appealed the trial court's grant of summary judgment to API. API's summary-judgment motion was based on its claim of immunity under Section 12-26-2-6. Thus, the issues in the Haggerty-AP1 appeal are the same as those raised in AP2 and AP3's cross-appeal. Granting AP2 and AP3's belated motion for certification gave this Court the option to resolve, in one appeal, the immunity claims raised by all three anonymous parties and refuted by the Haggertys. We find no error here.

B. Court of Appeals

The Haggertys also challenge this Court's decision to accept jurisdiction over AP2 and AP3's interlocutory appeal. Essentially, the Haggertys ask this Court to reconsider our motions panel's decision. Though uncommon, this request is not entirely unheard of, "[In rare instances reconsideration of motions to accept or oppose discretionary interlocutory appeals may be appropriate, such as where a sue-cessive motion demonstrates good cause why the motions panel's initial ruling should be reconsidered." Bridgestone Ams. Holding, Inc. v. Mayberry, 854 N.E.2d 355, 360 (Ind.Ct.App.2006), summarily aff'd in relevant part, 878 N.E.2d 189, 191 n. 2 (Ind.2007). Though we have the inherent authority to reconsider any decision while an appeal remains pending, we are reluctant to overrule our motions panel. Simon v. Simon, 957 N.E.2d 980, 987 (Ind.Ct.App.2011). We may do so, however, where a more complete record reveals clear authority establishing that our motions panel erred. Id. For example, in Simon, we dismissed a discretionary interlocutory appeal when it became clear after briefing that the appellant did not have standing to pursue the appeal. Id. at 989-90.

Here, the Haggertys do not explain how our motions panel clearly erred. They argue that AP2 and AP3's interlocutory appeal should not proceed because AP2 and AP3 had a dilatory motive. Appellants' Br. p. 22. They also argue that the interlocutory appeal prejudices them and the judicial process. Id. But they do not explain how allowing the appeal to proceed prejudices them, particularly in light of the fact that AP2 and AP3 raise the same claims the Haggertys had to respond to in their appeal against API. Nor do we see how the appeal prejudices the judicial system; as explained earlier, allowing AP2 and AP3's appeal to proceed gives this Court the option to decide, in one appeal, the immunity claim raised by all three anonymous parties. And the Haggertys offer no proof that the belated motion was motivated by bad faith rather than a simple attempt to consolidate legal claims arising from Thomas's detention.

For these reasons, we decline to overrule our motions panel's decision to accept jurisdiction over AP2 and AP3's interlocutory appeal.

III. Motion to Amend Designated Evidence

AP2 and AP3 contend that the trial court erred when it granted the Hagger-tys' motion to amend their designated evidence.

Indiana Trial Rule 56(C) provides that an adverse party shall have thirty days after service of a summary-judgment motion to serve a response and any opposing affidavits. When filing a response, Rule 56(C) requires the adverse party to designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. "A party opposing the motion shall also designate to the court each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto." Ind. Trial Rule 56(C).

Rule 56(E) provides that the trial court "may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." AP2 and AP3 argue that this Court recently interpreted Rule 56(E) as permitting only affidavits, not other designated evidence, to be supplemented after the deadline for submission of designated evidence. See Appeliees'/Cross-Appellants' Br. p. 19 (citing Auto-Owners Ins. Co. v. Bill Gaddis Chrysler Dodge, Inc., 973 N.E.2d 1179 (Ind.Ct.App.2012), trans. denied ). But we need not reach this issue; for the purposes of our analysis, we will assume that the trial court considered all the evidence appropriately.

IV. Immunity

We now turn to the issue of immunity. The Haggertys argue that the trial court erred by granting API's summary-judgment motion. AP2 and AP3 argue that the trial court erred when it denied their summary-judgment motion.

A motion for preliminary determination of law under Indiana Code section 34-18-11-1, which is unique to the Indiana Malpractice Act, is a procedure that authorizes the trial court to assert jurisdiction over threshold issues before a medical review panel has acted. Hodge v. Johnson, 852 N.E.2d 650, 652 (Ind.Ct.App.2006) (citation omitted), trams. demied. When evidence accompanies a motion for preliminary determination, the motion is subject to the same standard of appellate review as a summary-judgment motion. Id. "Where the evidence shows that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate." Id. "We construe all facts and reasonable inferences drawn therefrom in a light most favorable to the non-moving party." Id. When a pure question of law is presented, we review the matter de movo. Id. (citation omitted).

A person who without malice, bad faith, or negligence participates in proceedings for the detention or commitment of an individual or assists in the detention, care, and treatment of an individual alleged or adjudged to have a mental illness is immune from any civil or criminal liability that might otherwise be imposed as a result of the person's actions. Ind.Code § 12-26-2-6(a). Such immunity does not, however, permit a person to physically abuse an individual or deprive an individual of a personal or civil right except in accordance with the commitment procedures. 1.0. § 12-26-2-6(b).

At issue here is subsection (b); the Hag-gertys argue that the anonymous parties cannot claim immunity because they deprived Thomas of his personal or civil rights. Specifically, they claim that his personal or civil rights were violated because he was "forcibly placed in a vehicle by [AP2] security staff, driven to [AP2], and placed in a small bathroom for approximately four (4) hours before finally being admitted into [AP2]." Appellants' Br. p. 13. They also argue that Thomas's rights were violated because [AP2] allowed Thomas to be detained even though no one other than the doctor who initially evaluated Thomas found him to be a suicide risk. Id. Although the Haggertys assert these claims generally against all three anonymous parties, it is helpful to address API separately from AP2 and AP3.

A. API's Immunity Claim

The Haggertys argue that Thomas's personal or civil rights were violated when he was detained and transported to AP2 and during his detention at AP2. Critically, none of this involved API. API's only involvement in Thomas's detention was the phone call it made to AP2 security officers to alert them that he had left the facility against medical advice and was threatening to walk to Bloomington. Even if this can be considered participation in Thomas's detention, the Haggertys do not mention the phone call when arguing that Thomas's personal or civil rights were violated, much less argue persuasively that it violated those rights.

As the party moving for summary judgment, AP1 bears the burden of establishing that no genuine issue of material fact exists. Cole v. Gohmann, 727 N.E.2d 1111, 1113 (Ind.Ct.App.2000). "Once the moving party has met this burden with a prima facie showing, the burden shifts to the nonmoving party to establish that a genuine issue does in fact exist." Id. (citation omitted). AP1 made a prima facie showing that no genuine issue of material fact exists as to its immunity; however, the Haggertys have not established the contrary. We conclude that the trial court properly granted summary judgment to AP1.

B. AP2 and AP3's Immunity Claim

We first address the Haggertys' claim that Thomas's personal or civil rights were violated when he was detained by AP2's security officers and transported to AP2. Indiana Code section 12-26-4-1 permits a law-enforcement officer, "having reasonable grounds to believe that an individual has a mental illness, is either dangerous or gravely disabled, and is in immediate need of hospitalization and treatment," to "apprehend and transport the individual to the nearest appropriate facility."

Here, AP2's security officers were alerted that Thomas had left AP1 against medical advice. They found Thomas walking along a road, threatening to walk from Indianapolis to Bloomington on a winter night in below-freezing temperatures. Thomas's wife, Cathy, told the officers that Thomas had a history of alcohol abuse and was supposed to be receiving in-patient treatment for his alcoholism at APL. Thomas refused to return to the facility and insisted he would walk home. Based upon this, the security officers apprehended him and transported him to AP2. Although the Haggertys argue that "he was illegally restrained before he was detained [at AP2]," Appellants' Br. p. 20-21, Section 12-26-4-1 permits law-enforcement officers to do exactly what APZ's security officers did here.

Next, the Haggertys claim that Thomas's personal or civil rights were violated when he was placed in a small bathroom for approximately four hours before being admitted to AP2. The parties do not explain the cireumstances surrounding Thomas's placement in a bathroom, other than noting that he left the bathroom at one point to talk to Cathy. Assuming that this is true, as we must, the evidence shows that Thomas was detained because he posed a threat to himself, and he was transported to the nearest appropriate facility as required by Section 12-26-41. There is no dispute that AP2 is an appropriate facility under the statute.

Finally, the Haggertys argue that Thomas's personal or civil rights were violated when he was detained at AP2 because no one other than the doctor who initially evaluated Thomas found him to be a suicide risk. Id. at 13. This argument fails for two reasons: first, the record shows that at least one other medical professional found Thomas to be a moderate suicide risk. Second, and more importantly, Indiana Code section 12-26-5-1 allowed AP2 to detain Thomas regardless of his suicide risk.

Section 12-26-5-1 provides that an individual may be detained in an appropriate facility for not more than seventy-two hours, excluding Saturdays, Sundays, and legal holidays, if a written application for detention is filed with the facility. The application must contain a statement of the applicant's belief that the individual is "mentally ill and either dangerous or gravely disabled" and "in need of immediate restraint," as well as a statement by at least one physician that, based on an examination or information given the physician, the individual may be mentally ill and either dangerous or gravely disabled. Ind. Code § 12-26-5-1(b). The section does not require that the individual be suicidal.

In the application for emergency detention, the doctor examining Thomas noted that Thomas had a psychiatric disorder, was an alcoholic, and posed a danger to himself because he was threatening to walk home to Bloomington. The doctor also indicated his belief that if Thomas was not restrained, he would kill himself, Appellants' Confidential App. p. 211-12. According to the plain language of Section 12-26-5-1, this was sufficient. And the Haggertys do not argue that Thomas was not mentally ill and either dangerous or gravely disabled and in need of immediate restraint; they merely debate his suicide risk. We conclude that the Haggertys have not shown that Thomas was detained improperly or in a way that violated his personal or civil rights.

As the parties moving for summary judgment, AP2 and AP3 have the burden of establishing that no genuine issue of material facts exists. Cole, 727 N.E.2d at 1113. "Once the moving party has met this burden with a prima facie showing, the burden shifts to the nonmoving party to establish that a genuine issue does in fact exist." Id. (citation omitted). AP2 and AP3 made a prima facie showing that no genuine issue of material fact exists as to their immunity; the Haggertys failed to establish the contrary. We therefore conclude that the trial court should have granted AP2 and AP3's summary-judgment motion.

Because the anonymous parties met their burden of establishing that there are no genuine issues of material fact as to their immunity in this case, we affirm the trial court's grant of summary judgment to API. We reverse the denial of AP2 and AP3's summary-judgment motion and we remand with instructions for the trial court to enter summary judgment for AP2 and AP3.

Affirmed in part and reversed in part.

FRIEDLANDER, J., concurs.

BAKER, J., concurs in part and dissents in part with separate opinion.

BAKER, Judge,

concurring in part and dissenting in part.

While I concur with the majority that the trial court properly granted summary judgment as to API, I part ways with the majority's conclusion that AP2 and AP3 met their burden of establishing that there were no genuine issues of material fact with respect to immunity. As stated by the majority, immunity does not permit a person to physically abuse a person or deprive that person of a civil right except in accordance with commitment procedures. Ind.Code § 12-26-2-6(b).

Here, the facts as alleged by the Hag-gertys place Thomas in a small bathroom for approximately four hours before being admitted to AP2. The majority concedes that "the parties do not explain the cireum-stances surrounding Thomas's placement in a bathroom, other than noting that he left at one point to talk to Cathy." Op. at 295. In my view, this creates a genuine issue of material fact sufficient to preclude summary judgment and, consequently, immunity as to AP2 and AP3. Indeed, this incident is precisely the type of issue that the medical review panel should assess to determine whether the actions of AP2 were appropriate. Accordingly, I would have affirmed the trial court's denial of summary judgment.

      . Thomas was primarily diagnosed with liver disease with encephalopathy, suspected cirrhosis and hepatomegaly, chronic alcohol dependence, suspected alcohol-withdrawal seizure, confusion, hypertension, hypokalemia, and severe anemia. See Appellants' Confidential App. p. 208.

      . A health-care provider must be identified in a summons to effect service, but must remain anonymous during the pendency of the medical review panel proceedings in a complaint filed in state court. See Ind.Code § 34-18-8-7; Hubbard v. Columbia Women's Hosp. of Indianapolis, 807 N.E.2d 45, 50, n. 2 (Ind.Ct.App.2004), reh'g denied.

      . Though properly captioned as motions for preliminary determination of law for summary judgment, we refer to them as summary-judgment motions for simplicity.

      . Griffith references Indiana Code section 16-9.5-10-1, the predecessor statute to Section 34-18-11-1.

      . A search of Indiana cases reveals that our Courts have repeatedly referred to immunity as an affirmative defense. See Catt v. Bd. of Comm'rs of Knox Cnty., 779 N.E.2d 1, 2 (Ind.2002) ('The County filed its answer, which included the affirmative defense[ ] of statutory immunity...." State v. Rendleman, 603 N.E.2d 1333, 1334 (Ind.1992) ("As an affirmative defense, the State asserted immunity from liability by virtue of [the Tort Claims Act]"); City of S. Bend v. Dollahan, 918 N.E.2d 343, 349 (Ind.Ct.App.2009) ('The school corporation had failed to assert the affirmative defense of governmental immunity. ..."), trans. denied.

      . We need not address the parties' arguments regarding the applicability of Indiana Trial Rules 12(B) or 12(C) because we conclude that immunity is an affirmative defense under Trial Rule 8(C).

      . The Haggertys note that trial court did not issue findings with its order granting summary-judgment as to API and denying it as to AP2 and AP3. But "special findings are not required in summary-judgment proceedings and are not binding on appeal." Ind. Reg'l Recycling, Inc. v. Belmont Indus., Inc., 957 N.E.2d 1279, 1282 (Ind.Ct.App.2011), trans. denied.

      . Although the Haggertys repeatedly note that force was used to restrain Thomas and take him into custody, they do not argue that the force used was unreasonable.